Madras High Court
Far East Tanning Co., By Its Partner N.M. ... vs The Superintending Engineer, (West) ... on 23 February, 1999
Equivalent citations: (1999)3MLJ447
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
ORDER V.S. Sirpurkar, J.
1. This writ petition has been filed by a consumer enjoying the electricity connection challenging the order passed dated 23.11.1989. By the impugned order, a financial liability was fixed against the petitioner and the petitioner was ordered to pay a sum of Rs. 14,03,060.
2. The petitioner-Company deals in leather business since 1971 and claims that it is exporting good quality finished leather. It is the claim of the petitioner that it consumed 3000 to 3500 units of electricity and that there used to be periodical check ups of the meters. The affidavit further suggests that there was a certificate issued in respect of the correctness of the meter on 1.2.1980 by the Divisional Engineer i.e., the second respondent herein. The petitioner then refers to a surprise check made by the Assistant Divisional Engineer, Madras, dated 6.9.1980 and claims that the so-called inspection was against all the procedural norms. It is then claimed that the meter was disconnected on 6.9.1980, and that the police from Vellore removed the meters on 7.9.1980. It is then claimed that the Divisional Engineer had issued an order in his letter dated 16.9.1980 suggesting therein that one of the rivets of the right side in the meter cover was removed and that a hole was found to have been made to facilitate arresting the rotation of the disc of the meter, and this amounted to theft of energy. According to the petitioner, it was claimed in that letter that against the sanctioned load of 92 H.P., some additional load was found connected and utilised through the same meter. The theft of energy was assessed at Rs. 8,87,696.10 and the bill for Rs. 10,59,736 inclusive of the assessment charges, etc. was presented to the petitioner. It is the claim of the petitioner that in this letter, there was no charge of theft. It is also claimed that this demand was illegal as the period for which this demand was made was also not property calculated.
3. The petitioner then has made a reference to the criminal proceedings in C.C.No. 497 of 1980 having been lodged against him in the Court of Judicial II Class Magistrate, Vellore and claimed that the learned Magistrate, after having gone into the question, has found that there was no theft at all. The petitioner then has given a brief history of the writ petitions filed by him from time to time, and then has made reference to the last writ petition being W.P.No. 5566 of 1986, wherein, an enquiry was directed to be conducted by the second respondent.
4. It is then pointed out that the second respondent, by his letter dated 31.8.1987, confirmed the earlier order and stated that the earlier order of assessment dated 15.5.1996 was correct and needed no revision. The petitioner then makes a reference to an appeal against this order pressed by the respondent and suggests that the petitioner had to prefer W.P.No. 2451 of 1988 as the appellate authority was not prepared to consider the appeal unless 75% of the payment was made by the petitioner. The petitioner then refers to the order passed by this Court in W.P.No. 2451 of 1988, whereby this Court had directed the disposal of the appeal by order dated 8.8.1988 within eight weeks from the date of payment of Rs. 25,000 by the petitioner. The petitioner then refers to the findings of the second respondent in the impugned proceedings which have been finalised by the order date 23.11.1989 and ultimately makes a reference to the fact that the appellate authority has found a liability of Rs. 14,03,060 against the writ petitioner. It is this order, which is challenged in the present writ petition.
5. Learned Counsel appearing on behalf of the petitioner at the outset raised a question that unless the liability was fixed under Section 39 of the Indian Electricity Act 1910, the respondents could not recover the amounts as they have tried to do in this case. Learned Counsel also suggests that since the petitioner was honourably acquitted by the criminal court in Cr.No. 497 of 1980 which was based on the very same cause of action, the concerned authority could not go beyond the findings recorded by the criminal court and could not order the recovery of amounts, as it has done.
6. Learned Counsel also contended that the fact of honourable acquittal by the criminal court has been reiterated, vide ground No. 'e'. Learned Counsel also attacked the findings recorded by the appellate authority on the ground that such findings were not factually correct.
7. Learned Counsel appearing on behalf of the respondents, however, pointed out that the contentions raised by the petitioner could not be entertained in this writ petition as they pertained to the factual positions. Learned Counsel further contended that the findings recorded by the first authority and the appellate authority were essentially in the realm of findings of facts which could not be interfered with by this Court under its extraordinary original jurisdiction under Articles 226 and 227 of the Constitution of India.
8. Learned Counsel also pointed out that there is an assertion made on the affidavit that the claim of the petitioner that the petitioner was honourably acquitted was also far from being correct as in fact the petitioner was acquitted by giving benefit of doubt. Learned Counsel was at pains to point out that though a claim to that effect was made in the petitioner in ground No. 'e', very curiously the judgment of the criminal court was not placed on record. Learned Counsel pointed out that even today, the said judgment is not filed on record. Learned Counsel further pointed out that there was actually a hole found and, therefore, it was correctly held by the authority that the meter was tampered with and, therefore, there was theft of energy. Learned Counsel further pointed out that the theft of energy was correctly worked out and that it would not be for this Court to go into the merits of these findings in these proceedings.
9. In the backdrop of these rival contentions, it will have to be seen whether the petitioner is entitled to any relief.
10. The impugned order passed by the appellate authority as also the original order passed by the Divisional Engineer are on record. Besides this, the appellate authority has given the findings in detail in order to arrive at the conclusion that there has been a theft and that the said theft resulted in the loss with Rs. 14 lakhs approximately to the respondents.
11. Learned Counsel for the respondents is, undoubtedly, right in contending that in so far as the findings are concerned, those would become the findings of fact, more particularly because those findings have been handed by the authorities or the officers who are equipped with the technical knowledge. The question whether the meters were tampered with, and the further question whether such tampering could result in the theft of electricity, and the still further question as to the extent of electricity which could be or was actually stolen or even the question as to whether the petitioner was responsible for this theft are all in the realm of findings of facts. For the first three questions, which have been decided by the appellate authority, there is ample reasoning in the shape of findings in support thereof and this Court would not be justified to go behind those of facts. In matters such as these, the jurisdiction of the court could not be extended to test the correctness of the finding. The jurisdiction would extend to find as to whether these findings have been correctly arrived at. There is no dispute that even before deciding upon the fact of theft and the quantum of electricity stolen, adequate opportunities were given to the petitioner. In fact, there were number of writ petitions which were filed at every juncture, whereby, the petitioner complained of lack of opportunity. Even at the stage when the first order was appealed against before the Superintending Engineer, the petitioner contended in his last writ petition that the petitioner could not be made to pay 75% of the amount arrived at by the Divisional Engineer before the appeal was decided upon as a pre-condition for decision of the appeal. This Court did accept the contentions in part and directed the petitioner to deposit the amount of Rs. 25,000 as a pre-condition for hearing of the appeal. It was only thereafter that the appeal was decided upon. There is no complaint made that the appellate authority has not given adequate opportunity of hearing to the petitioner before deciding the appeal and before arriving at the findings which accompany the final order. Having seen the whole record indeed, there cannot be any such situation to think that the petitioner was not afforded a proper opportunity. Therefore, it will not be for this Court to go into the correctness or otherwise of the technical findings regarding whether there was any theft, as to the extent of loss that the respondents were put to, because of the theft, so also the persons responsible for this theft.
12. Speaking about the responsibility, it is not disputed that this meter was in the name of the petitioner and the petitioner enjoyed electric supply through this meter. If there is any theft of electricity because of tampering of that meter, then the responsibility has to lie solely on the petitioner in whose name the meter stands. The petitioner cannot turn about and say that merely because he has been acquitted by the criminal court, he will not be liable to make good the loss suffered by the respondents on account of the theft of electricity.
13. Learned Counsel very severally commented on the findings and contended that the Superintending Engineer had not taken into account the fact of acquittal. The learned Counsel tried to take me through Section 39 of the Electricity Supply Act 1910. Now Section 39 of the Act will not be relevant in this matter because it only speaks about the offence of theft of electricity. Even if the petitioner has been acquitted of the offence, if it is otherwise proved that there has been a theft of electricity, then the person primarily responsible to make good the loss would be the person in whose name the meter stands and there is no dispute in this case that the meter stood in the name of the petitioner or that the petitioner exclusively used the meter.
14. Learned Counsel for the petitioner also invited my attention to the assertion made in the affidavit that the petitioner was honourably acquitted. Thereby, the learned Counsel wanted the court to record a finding that there was in fact no theft of electricity at all. Very strangely such judgment is, however, not on the record of this petition. As against the claim made in ground No. 'e' that the petitioner was honourably acquitted of the offence, learned Counsel for the respondents has invited my attention towards the findings and pointed out that the Superintending Engineer as an appellate authority was quite alive to this position that the petitioner was acquitted of the offence.
15. Learned Counsel for the respondents invited my attention, that too, particularly to the counter, wherein, it is suggested by the respondents that the petitioner was acquitted giving the benefit of doubt. In fact, after this counter, the petitioner could have questioned this claim in the counter by producing a copy of the judgment. Though this petition has been pending for last more than nine years, the petitioner has not chosen to do that. In fact, even before this petition was filed, the judgment of the criminal, court had already come and yet the petitioner has chosen not to file that judgment along with the petition. All these suggest that everything was not well with that judgment and there was no finding that there was no theft of electricity. Once the finding is arrived at, that electricity was stolen and that there was a theft of energy, then the primary responsibility to pay for it would be that of the petitioner.
16. It is seen from the findings and the counter filed by the respondents that there was a hole in the meter and by inserting something through that hole, the speed of the meter could be lessened. It is also pointed out by the authority concerned that in that inspection dated 6.9.1980, small pieces of sticks were found at the floor below the meter which only shows that in fact there was in theft. The acquittal of the petitioner could at the most suggest an inference that the petitioner was not the one who tampered with the meter or that it was not proved that he was the only person who tampered with the meter. But once it is proved that the meter was tampered with and once it is further proved that the meter stood in the name of the petitioner, petitioner cannot escape the financial liability arising out of the theft merely because he was acquitted by the criminal court. It is seen from the counter that even the enquiry officer had given full scope to the petitioner to represent his case and yet, the petitioner's representative though present, did not place any materials before the Enquiry Officer for consideration. Same was the case with the appellate authority. There were two witnesses examined during the course of the enquiry. It seems that the petitioner did not at all bother to either cross-examine the witnesses or to put forth any fresh material suggesting that there was no theft. Under such circumstances, the only argument which is raised to the effect that since the petitioner was acquitted by the criminal court, he should not be clothed with the financial liability arising out of the theft of energy has to fall to the ground. The other findings as it has already been indicated earlier cannot be interfered with particularly because, they amount to the finding of facts and rather dependent upon the appreciation of evidence which this Court refuses to do in this jurisdiction under Articles 226 and 227 of the Constitution of India.
17. In the result, the petition has no merits whatsoever and it must be dismissed. The petitioner has had the advantage of the interim orders to some extent inasmuch as the petitioner did enjoy the electricity for quite some time on the basis of the interim orders. It is obvious that there has been a theft of electricity. In such circumstances, the court orders cost of Rs. 5,000 against the petitioner. The petition is dismissed with costs.