Madras High Court
The Assistant Engineer/O & M vs Sabasthi Ammal on 27 January, 2015
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri, M.Venugopal
In the High Court of Judicature at Madras
Reserved on : 19.01.2015
Dated : 27.01.2015
Coram:
The Hon'ble Mr.Justice SATISH K. AGNIHOTRI
and
The Hon'ble Mr.Justice M.VENUGOPAL
W.A.No.719 of 2014
in W.P.No.8713 of 2011
The Assistant Engineer/O & M,
Tamil Nadu Electricity Board,
Chennai Electricity Distribution Circle/North,
Vyasarpadi, Chennai-39. .. Appellant
Vs.
1.Sabasthi Ammal
2.Tamil Nadu Slum Clearance Board
rep. By its Chairman,
Kamaraj Salai, Chennai. .. Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent Act, against the order dated 22.02.2014 and made in W.P.No. 8713 of 2011 by the learned Judge of this Court.
For Appellant : Mr.P.H.Arvind Pandian, AAG
for M/s.P.R.Dhilip Kumar
For Respondent-1 : Mr.D.Nellaiappan
For Respondent-2 : No Appearance
J U D G M E N T
M.VENUGOPAL, J.
The Appellant/TNEB has filed the intra Court Writ Appeal before this Court as against the order dated 22.04.2014 passed by the Learned Single Judge in W.P.No.8713 of 2011.
2.The Learned Single Judge while passing the impugned order on 22.04.2014 in W.P.No.8713 of 2011 (filed by the Writ Petitioner) in para 15 had observed the following:
15.In a similar and identical circumstance, the same issue came to be decided by this Court in SHAHJAHAN VS. THE SUPERINTENDING ENGINEER, TAMIL NADU ELECTRICITY BOARD, DHARMAPURI AND ANOTHER [2012 (2) CWC 721], wherein when a property was sold in public auction free from encumbrance, the subsequent purchaser of the said property would not be considered as debtor within the meaning of Section 2(3) of the Tamil Nadu Electricity Board (Recovery of dues) Act, 1978, hence, the Electricity Board was directed not to demand amount due from the original owner as a condition precedent for grant of electricity connection. It is appropriate to extract paragraphs 11 and 12 of the decision cited supra:
11.Clause 6.10 of the Terms and Conditions of Supply of Electricity is sought to be used against the Petitioner. In my considered opinion, the said attempt has to necessarily fail. Clause 6.10 can be enforced only against a person, who is a debtor. Suppose the purchaser of the property, either in public auction or at least by private auction also falls within the definition of "debtor" as defined in Section 2(3) of the act and surely Clause 6.10 will be applicable against him. Clause 6.10 therefore, cannot be read independently. The definition of the term 'debtor' as found in Section 2(3) of the Act should be read into Clause 6.10 as per the Terms and Conditions of Supply of electricity. Clause 6.10 should be understood in such a way that if there is any charge created over the property, then as per this clause, unless the purchaser clears off the arrears, he will not be entitled for service connection. To put it differently, if there had been no charge over the property, since the purchaser is not a debtor as defined in Section 2(2) of the Act. Clause 6.10 of the Terms and Conditions of Supply of Electricity cannot be applied against him at all.
12.In the Division Bench judgment in W.A.No.646 of 2003, dated 23.2.2007 referred to above, precisely, the Division Bench went into Clause 6.10 of the Terms and Conditions of Supply of Electricity and the definition of the term 'debtor' and dues extensively and has held in para 6 that in the absence of any specific provision creating charge over the property, the contention of the Appellant that the subsequent purchaser should clear off the dues from the erstwhile owner cannot be accepted. As per the said view taken by the Division Bench, I have no doubt that in the case on hand, the Petitioner is not a debtor and therefore, Clause 6.10 cannot be enforced against him. and resultantly, set aside the impugned order passed by the First Respondent/Appellant herein and further, directed that, the Writ Petitioner is entitled to get new electricity service connection, provided she satisfies the other requirements of the Appellant and also made it clear that the Appellant/First Respondent shall not demand any previous arrears from the Writ Petitioner as a condition precedent for providing new electricity service connection as she is a new allottee. In fact, the Learned Single Judge while allowing the writ petition had directed the Appellant/First Respondent to provide new electricity service connection to the First Respondent/Writ Petitioner's shop bearing No.915, 28th Street, Bakthavathsalam Colony, Vyasarpadi, Chennai-39, provided she satisfies the other requirements within a period of two weeks from the date of receipt of a copy of the order.
3.The Learned Additional Advocate General appearing for the Appellant/TNEB urges before this Court that the Learned Single Judge had failed to take into account the amendment of Clause 17 of the Tamil Nadu Electricity Supply Code, 2004 after Sub Clause(8) namely, 9(a) (inserted by Notification No.TNERC/SC/7-25 dated 18.03.2011) which enjoins that 'in case of service connections in a premises, which have been disconnected/dismantled for defaults in payment of dues whatsoever and if such service connections are to be reconnected or new service connections are to be obtained by other persons in such premises either by purchase or transfer or lease basis, the Distribution Licensee shall reconnect such service connections or effect new service connections, as the case may be, in such premises only after payment of dues attributed to such premises by the applicant'.
4.The Learned Additional Advocate General appearing for the Appellant/First Respondent projects an argument that the Learned Single Judge had failed to follow the provisions of Clause 6.10 of the Terms and Conditions of Supply of Electricity which is framed under Section 49 of the Electricity Act, 1948 and in fact, the said Clause is statutory in Character.
5.According to the Learned Additional Advocate General appearing for the Appellant/First Respondent, the Learned Single Judge had failed to take into consideration the decision of the Hon'ble Supreme Court in Paschimanchal Vidyut Vitran Nigam Limited and others Vs. DVS Steels and Alloys Private Limited and others, 2009 (1) SCC 210 and 211, wherein it is held as follows:
A transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privity of contract cannot obviously be asked to pay the dues of his predecessor-in-title or possession, as the amount payable towards supply of electricity does not constitute a chargeon the premises.
But the above legal position is not of any practical help to a purchaser of a premises. When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them.
A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconnected for non-payment, may sell away the property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues. Provisions similar to Clauses 4.3(g) and (h) of the Electricity Supply Code are necessary to safeguard the interests of the distributor.
6.Added further, the Learned Additional Advocate General for the Appellant/First Respondent cites the decision of Hon'ble Supreme Court in Haryana State Electricity Board Vs. Hanuman Rice Mills, Dhanauri and others [2010 (9) SCC at page 145 and at special pages 150 & 151] whereby and whereunder in para 12 it is observed as follows:
12.The position therefore may be summarised thus:
(i)Electricity arrears do not constitute a charge over the property. Therefore, in general law, a transferee of a premises cannot be made liable for the dues of the previous owner/occupier.
(ii)Where the statutory rules or terms and conditions of supply which are statutory in character, authorise the supplier of electricity to demand from the purchaser of a property claiming reconnection or fresh connection of electricity, the arrears due by the previous owner/occupier in regard to supply of electricity to such premises, the supplier can recover the arrears from a purchaser.
7.Hence, the specific stand taken on behalf of the First Respondent/Writ Petitioner is that in the impugned order dated 17.03.2014 passed by the Appellant/First Respondent, the writ Petitioner was required to pay a sum of Rs.15,53,975/- together with interest for the theft of energy that took place on 19.04.2001 (the previous Electricity Connections in the name of Mrs.Sengalammal A/c.No.67-17-584) and for the theft of energy committed by the previous tenant namely, Sengalammal the First Respondent/Writ Petitioner cannot be fastened with the liability to pay the amount in question. Also it is the plea that the First Respondent/Writ Petitioner cannot be mulcted with the liability in regard to theft of energy committed by the previous tenant and in fact, Section 23(a)(1)(b) of the Tamil Nadu Electricity Supply Code 2004 speaks of a person who dishonestly tampers a meter, installs or uses a tampered meter etc. In short, Section 135 of the Tamil Nadu Electricity Act, 2003 and the explanation of Section 23 of the Tamil Nadu Electricity Supply Code categorically state that for the purpose of the above Section, tampering of meters and theft of energy if the premises in question is occupied by an authorised tenant, the responsibility shall vest with the authorised tenant only.
8.Moreover, Section 23(22)(a) explanation of Tamil Nadu Electricity Supply Code, 2004 speaks of the meaning of accused person which runs as under:
accused person shall mean and include the owner or occupier of the premises or his authorised agent or representative or any other person who is in occupation or possession or in charge of the premises at the relevant time of detection of theft of electricity or any other person who has been benefited by the theft of electricity. Further, the word 'supply' referred to in Section 23 of the Electricity Act, 2003 is about supply of Electricity to consumers and not supply by a generating company as per decision of Hon'ble Supreme Court in Tata Power Company Ltd., Vs. Reliance Energy Limited & others [2009 (16) Supreme Court Cases 659].
9.It is to be borne in mind that Section (2)(15) of Electricity Act 2003 defines Consumer as follows:
Consumer means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.
10.In fact, Section 126 of the Tamil Nadu Electricity Act, 2003 empowers the Assessing Officer to make assessment in the case of 'unauthorised use of electricity'. It specifies that if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used or after inspection of records maintained by any person, the Assessing Officer comes to a conclusion that such person in indulging in 'unauthorised use of electricity', then he shall assess the electricity charges payable by such person or by any other person benefited by such use. Moreover, Part XIV of the Electricity Act, 2003 relates to 'offences and penalties'. From Section 126 r/w. Sections 135 to 140 of the Act, it is latently and patently quite clear that various acts of 'unauthorised use of electricity' constitute 'offences' mentioned under Sections 135 to 140, attracts sentence and fine as specified therein. In fact, Section 135 of the Act pertains to 'theft of electricity'. Under Section 136 of the Act, 'theft of electric lines and materials' constitute an offence. However, under Section 137 of the Act, 'receiving stolen property' constitute an offence. Section 138 deals with interference with meters or works of licensee. It is to be remembered that a mere running of the eye over the ingredients of Section 126 and Sections 135 to 140 of the Act, categorically points out that the acts of 'unauthorised use of electricity' attracts civil consequence of penal charges of electricity towards the rate of electricity, for which the assessment is made by the Assessing Officer under Section 126 of the Act. However, for the very same acts of 'unauthorised use of electricity' constitute an 'offence' under Sections 135 to 140, for which a sentence and fine has been adumbrated.
11.It is to be pointed out that Rule 22 in Chapter-III of Tamil Nadu Electricity Supply Code, 2004 speaks of restoration of supply of Electricity after it was disconnected. Further, Rule 14(1)(b) of the Tamil Nadu Electricity Supply Code enjoins that bills are payable within seven days of the date of current consumption bill without levy of belated surcharge payment and in default, the supply is liable for disconnection after issue of 15 days notice. Moreover, Rule 22(4) of the Tamil Nadu Electricity Supply Code, 2004 speaks as follows:
In the case of service connections, which have been disconnected, the licensee shall have the power to allow instalment payments of all arrears in deserving cases. Also, Rule 22(8) of the Tamil Nadu Electricity Supply Code speaks of the facility of payment in instalments will be made available on fee at request of the consumer and to avail this facility, the consumer shall execute an undertaking in Form 5 in the Appendix to the Tamil Nadu Electricity Supply Code, 2004.
12.In this connection, this Court very pertinently points out that the word Consumer includes any person whose premises had been connected with electricity for the purpose of receiving energy as per the decision of this Court in State Vs. Santhana Kumar [2004 MLJ (Cr.) 450 (Mad)], one cannot ignore the important fact that Sections 2(3) & 2(2) of the Tamil Nadu Electricity Board (Recovery of Dues) Act of 1978 defines the terms Debtor and Dues as under:
2 (3) debtor means a person by whom any dues are payable.
2 (2) dues means any sum payable to the Board on account of--
(i)consumption of Electrical energy supplied; or
(ii)any remuneration, rent or other charges for hire, inspection, test, installation, connection repairs, maintenance or removal of any electric meter, electric machinery, control gear, fittings, wires or apparatus for lighting, heating, cooling or motive power or for any other purpose for which electricity can or may be used, or any industrial or agricultural machinery operated by electricity; or
(iii)price of any such goods as aforesaid taken on loan but not returned.
13.As far as the present case is concerned, the First Respondent/writ Petitioner is not a person who had committed theft of energy. In reality, one Sengalammal (previous tenant) was alleged to have committed the theft of electricity and in fact, the allotment order of the second respondent/Tamil Nadu Slum Clearance Board dated 31.12.2005 speaks of payment of advance of six months monthly rent and other conditions which was complied with by the First Respondent/writ Petitioner. However, for the theft of electricity/energy committed by the previous tenant of the second respondent viz., Sengalammal, the First Respondent/writ Petitioner cannot be mulcted with liability to pay a sum of Rs.15,53,975/- together with interest as penalty as stated in the impugned order dated 17.03.2011 passed by the Appellant/TNEB.
14.A closure scrutiny of Regulations 17(9)(a) of the Tamil Nadu Electricity Supply Code, 2004 (brought about by means of amendment through Notification No.TNERC/SC/7-25, dated 18.03.2011) indicates that it only speaks of 'in case of service connections in a premises, which have been disconnected/dismantled for defaults in payment of dues whatsoever and if such service connections are to be reconnected or new service connections are to be obtained by other persons in such premises either by purchase or transfer or lease basis, the Distribution Licensee shall reconnect such service connections or effect new service connections, as the case may be, in such premises only after payment of dues attributed to such premises by the applicant'.
15.In the instant case on hand, the First Respondent/writ Petitioner had paid a sum of Rs.11,820/- representing six months rents at the rate of Rs.1970/- per month to the Estate Officer and in fact, the second respondent/Tamil Nadu Slum Clearance Board also granted no objection for providing electricity connection to the Tamil Nadu Electricity Board. Also, it is the stand of the First Respondent/writ Petitioner that she paid a sum of Rs.2383/- to the Second Respondent/Tamil Nadu Slum Clearance Board towards monthly rent and other incidental charges.
16.It cannot be gainsaid that ingredients of Section 56(2) of the Electricity Act, 2003 confers power upon the Electricity Board for disconnection to electricity supply for failure for payment of amount for consumption of electricity supply. The Learned counsel for the First Respondent/Writ Petitioner contends that the demand made by the Appellant/Electricity Board in regard to the penalty together with interest as claimed in the impugned order dated 17.03.2011 of the Appellant/Tamil Nadu Electricity Board is barred by law of limitation as per Section 56(2) of the Electricity Act, 2003 which speaks to the following effect notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.
17.At this stage, this Court very relevantly points out the decision of the Hon'ble Supreme Court in Haryana State Electricity Board Vs. Hanuman Rice Mills, Dhanauri and others [2010 (9) SCC 145] wherein, at page 151 in para 14 it is observed and held as follows:
14.The Appellant did not demand the alleged arrears, when the First Respondent approached the Appellant for electricity connection in its own name for the same premises and obtained it in the year 1991. More than three years thereafter, a demand was made by the Appellant for the first time on 16.01.1995 alleging that there were electricity dues by the previous owner. In these circumstances, the claim relating to the previous owner could not be enforced against the First Respondent.
18.Therefore, in the present case, the fact of the matter is that the First Respondent/writ Petitioner by means of an order dated 31.12.2005 was allotted a shed bearing No.915, 28th street, B.V.Colony, Vyasarpadi, Chennai-39 and she is engaged in a small trade of packing salt in small polythene bags and sell the same in retail. Moreover, electricity supply is necessary for her small business and as such, the impugned order dated 17.03.2011 passed by the Appellant/First Respondent recovering the First Respondent/writ Petitioner to pay the sum of Rs.15,53,975/- together with interest to the Tamil Nadu Electricity Board and only when she is willing to pay the aforesaid amount, the new service connection in her name would be considered is not legally a tenable one in the eye of law because of the simple reason for theft of energy or for the benefit enjoyed by a person in regard to the theft of electricity only that particular person can be considered to be an accused person and against whom the Appellant/First Respondent/TNEB can proceed in the manner known to law and in accordance with law. But the First Respondent/writ Petitioner by no stretch of imagination be called upon to pay a sum of Rs.15,53,975/- with interest to the Tamil Nadu Electricity Board and putting a precondition in regard to the above said payment by the Appellant/Tamil Nadu Electricity Board is not correct and legally valid one in the eye of law based on the reason that the First Respondent/writ Petitioner had not committed theft of electricity or energy or even benefited by the theft of electricity which was detected on 19.04.2001 and in fact, the previous tenant Sengalammal was alone responsible for the same in regard to her electricity connections A/c.67-17-584. Also that, the First Respondent/writ Petitioner who is not at all connected with the previous tenant of the Second respondent/Tamil Nadu Slum Clearance Board in the considered opinion of this Court cannot be imposed with a liability of erstwhile tenant in the absence of any agreement between her and the Electricity supplier, more so when the theft of energy was purportedly detected on 19.04.2001 in A/c.67-17-584, wherein, the theft of energy detected was used by the erstwhile tenant namely, Sengalammal.
19.In view of the foregoing reasons, this Court holds that the demand/claim made by the Appellant/First Respondent through its letter No.AE/O&M/V.Va.No.53, dated 17.03.2011, claiming a sum of Rs.15,53,975/- towards theft of energy charges as penalty from the First Respondent/writ Petitioner is clearly unsustainable in the eye of law and to that effect, we concur with the view taken by the Learned Single Judge in the Writ Petition. However, this Court bearing in mind, Clause 17(9)(a) of the Tamil Nadu Electricity Supply Code, 2004, directs the Appellant/First Respondent to issue a fresh demand notice/communication requiring the First Respondent/writ Petitioner to pay the lawful due electricity consumption charges of the previous occupier/tenant, reconnection charges or other ancillary/incidental charges by specifying the time limit as per relevant rule of the Tamil Nadu Electricity Supply Code, 2004, within a period of two weeks from the date of receipt of a copy of this order. Further, upon payment of the said claim amount by the First Respondent/Writ Petitioner, the Appellant/TNEB is directed to reconnect/restore/provide new service connection as the case may be forthwith.
20.With the aforesaid observations and directions, this Writ Appeal is disposed of leaving the parties to bear their own costs.
[S.K.A., J.] [M.V., J.] 27.01.2015 Index:Yes Internet:Yes DP To The Chairman, Tamil Nadu Slum Clearance Board Kamaraj Salai, Chennai. SATISH K. AGNIHOTRI , J. and M.VENUGOPAL, J. DP Judgment made in W.A.No.719 of 2014 in W.P.No.8713 of 2011 27.01.2015