Madras High Court
Annai Salt Works vs The Assistant Executive Engineer on 28 August, 2019
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.1144 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.08.2019
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.1144 of 2012
Annai Salt Works
Rep. by its Authorised Signatory,
K.Gurumoorthy ...Petitioner
Vs.
The Assistant Executive Engineer,
Operation & Maintenance,
South TANGEDCO,
Nagapattinam. ... Respondent
Prayer: The writ petition filed under Article 226 of the Constitution of
India, to issue a writ of Certiorarified Mandamus, to call for the
records on the file of the respondent herein culminating in the Final
Assessment order in Lr.No.AEE /O&M /SOUTH /F.NGT.Energy /
D.No.174/11 dated 04.11.2011 and quash the same and direct the
respondent to refund the amount of Rs.1,73,046.00 unlawfully
collected from the petitioner Annai Salt Works, Vadakupoigainallur.
For Petitioner : Mr.K.Sridhar for
Mr.Hari Radha Krishnan
For Respondent : Mr.P.Gunaraj
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W.P.No.1144 of 2012
ORDER
The petitioner filed this Writ Petition, to issue a writ of Certiorarified Mandamus, to call for the records on the file of the respondent herein culminating in the Final Assessment order in Lr.No.AEE /O&M /SOUTH /F.NGT.Energy / D.No.174/11 dated 04.11.2011 and quash the same and direct the respondent to refund the amount of Rs.1,73,046.00 unlawfully collected from the petitioner Annai Salt Works, Vadakupoigainallur.
2.The learned counsel appearing for the petitioner would submit that the matter related to the theft of electricity. During the course of the inspection by the respondent board, they found the petitioner has committed theft of electricity and the 3rd respondent assessed the value of extra levy liable to be paid by the petitioner to the Board as per Section 135 of Indian Electricity Act 2003 and the regulations contained in Tamil Nadu Electricity Supply Code 2004. Accordingly, the impugned order has been passed on 04.11.2011 directing the petitioner to pay a sum of Rs.3,30,330/- towards extra levy along with BPSC 1.5% till the date of payment. Pending criminal case, the civil liability was imposed against the petitioner and the same was challenged in the present Writ Petition. Subsequently, the Division 2/8 http://www.judis.nic.in W.P.No.1144 of 2012 Bench of this court has passed an order in similar writ petitions to proceed with the civil liability. Hence, the petitioner may be permitted to deposit the remaining amount without any BPSC charges and penalty and requests this Court to grant some reasonable time to deposit the same.
3. The learned counsel appearing for the respondent Board admitted the fact that the petitioner has paid some portion of the amount and this court may pass appropriate orders.
4.The said issue has been squarely covered by the decision of the Division Bench of this Court in batch of cases in W.A.Nos.1808, 1811 of 2009, W.P.Nos.29882 of 2004 and 3013 of 2014 and W.P.No.(MD) Nos.2360 and 2361 0f 2008, as follows:
28.It was also stated that Section 185 of the Act, 2003 cannot come to the rescue of the Electricity Board, as the action has been initiated only after the Act, 2003 came into existence and no proceedings initiated under the Old provisions / Repealed Act cannot be continued. Further, the Board cannot initiate proceedings under Clause 8.01 and 8.02 of the Terms and Conditions of Supply of Electricity (Electricity Supply Act 1948) with regard to theft of energy, as those clauses are no longer in vague as on the date of initiation of 3/8 http://www.judis.nic.in W.P.No.1144 of 2012 proceedings, the Old Act got repealed and the Act 2003 had came into force. Clause 8.01 and 8.02 of the Terms and Conditions of Supply of Electricity (Electricity Supply Act 1948) in the repealed Act reads as follows:
8.00 Theft of Energy and Extra Levy:
8.01 Any consumer who dishonestly abstracts or uses energy shall be deemed to have committed theft within the meaning of Indian Electricity Act, 1910 as amended by the Tamil Nadu Government and the Indian Penal Code and the existence of artificial means for such abstractions shall be prima facie evidence of such dishonest abstraction. Illegal restoration of supply to a disconnected service connection will fail under this category.
8.02 Extra levy for theft of energy by tampering of meters / meter seals will be made at the rates given below:
(a)for a period of twelve months; or
(b)for a period from the date of prior inspection if any by the APTS or MRT wing to the date of detection; or
(c)for a period from the date of replacement of meter to the date of detection; or
(d)for a period from the date of service connection to the date of detection whichever period of the above is less.
For other cases of theft of energy, the extra levy will be made for a period of twelve months or from the date of service connection to the date of detection whichever period if less at the same rates given below:
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(i)For Energy:
(a) Low Tension Service Connection : Highest Low Tension tariff rate x3: The charges arrived at will be rounded off to the next higher rupees.
(b)High Tension Service Connection:
Highest High Tension Tariff rate x 4 the charges arrived at will be rounded off to the next higher rupee
(ii) For maximum demand: (In High Tension Service Connection):
Highest High Tension tariff rate for maximum demand x 4. Extra levy for illegal restoration of supply to a disconnected service connection will be made for a period of twelve months, immediately preceding the date of detection of the violation or for the period from the date of disconnection of the service connection to the date of detection of the illegal restoration, whichever period is less, at the rates given above..”
29.The above submission made by the learned Senior Counsel for the petitioners cannot be accepted, because once there is a saving clause provided under the New Act, then there is no impediment or bar for the Department to proceed under the Old Act in the absence of proof that it is inconsistent with the provisions of the Act, 2003. More so, quoting a wrong provision of the Act will not entitle a wrong doer to escape from the clutches of law, especially when Section 126 of the Act, 2003 extends power to the Department / Board / Authorities to ensure that the electricity consumed unauthorizedly is calculated and necessary charges are paid by the defaulter. In the decision, Hitech Mineral Industries (P) 5/8 http://www.judis.nic.in W.P.No.1144 of 2012 Ltd., Salem V.TNERC, Chennai, reported in 2010 (3) MLJ 697, it is inter alia, observed that the persons who steal energy or use energy unauthorisedly have to be punished.
5.In view of the above decision held by the Division Bench of this Court in batch cases, this Court is inclined to direct the petitioner to pay the amount as demanded in the impugned notice dated 04.11.2011 after adjusting the amount already paid if any without BPSC and penalty within a period of eight weeks from the date of receipt of a copy of this order.
6.With the above direction, this writ petition stands disposed of. No costs.
28.08.2019 vkr Index:Yes/No Internet:Yes/No Speaking Order/Non-speaking order 6/8 http://www.judis.nic.in W.P.No.1144 of 2012 To The Assistant Executive Engineer, Operation & Maintenance, South TANGEDCO, Nagapattinam.
7/8 http://www.judis.nic.in W.P.No.1144 of 2012 M.DHANDAPANI, J.
vkr W.P.No.1144 of 2012 28.08.2019 8/8 http://www.judis.nic.in