Madras High Court
I. Pichandi vs The Superintending Engineer, ... on 23 May, 2006
Equivalent citations: (2006)3MLJ178
Author: K. Mohan Ram
Bench: K. Mohan Ram
ORDER K. Mohan Ram, J.
1. When the above writ petition came up for admission, the learned Counsel for the Electricity Board took notice and thereafter has filed a detailed counter affidavit.
2. The above writ petition has been filed for the issuance of a Writ of Mandamus directing the respondents to restore the service connection and reinstall the electric meter and other appliances of the service connection No. 327 of the petitioner in premises of Sumathi Flour Mills at Mudoor Village, Arakonam Taluk, Vellore District, in the following circumstances:
(i) According to the petitioner the service connection No. 327 stands in the name of the petitioner and the petitioner was running Sumathi Flour Mill. In respect of theft of electrical energy a criminal case was registered and the petitioner was charge sheeted in C.C.No. 220 of 2001 on the file of the Judicial Magistrate, Arakonam and the service connection was disconnected on 06.07.2001 and the electric meter was dismandled and removed by the Electricity Board. It is the further case of the petitioner that during the pendency of C.C.No. 220 of 2001 another case in Crime No. 399 of 2001 for theft of electric energy was registered on 20.09.2003 and the petitioner was charge sheeted in C.C.No. 70 of 2004 on the file of the Judicial Magistrate, Arakonam.
(ii) According to the petitioner both the above said cases after trial ended in acquittal. Thereafter, the petitioner issued a Registered Notice on 07.09.2005 to respondents 2 to 4 to restore the service connection in view of the Criminal Court's Judgment. Since the respondents have not restored the service connection, the above writ petition has been filed.
3. A detailed counter affidavit has been filed setting out the correct facts of the case and in the counter affidavit it is stated as follows:
(i) On 27.03.2001, the petitioner's electricity service connection bearing account No. 327 Tariff III B was inspected by the Anti Theft Squad and tampering of seals in the electric meter was noticed and the theft of energy committed by the petitioner by tampering of seals of electric meter was detected. A mahazar was prepared, but the petitioner refused to sign the mahazar and a police complaint was lodged. Thereafter, a show cause notice was issued to the petitioner, but no reply was received from him and hence an assessment order dated 28.04.2001 along with the working sheet assessing the extra levy at Rs. 3,86,784/- as per Clause 8.02 of the terms and conditions of the Supply of Electricity was passed and served on the petitioner giving him option to pay the said amount in ten equal monthly instalments. The petitioner neither paid the instalments nor preferred any appeal to the Appellate Authority, but filed a suit in O.S.No. 176 of 2001 on the file of the District Munsif Court, Arakonam challenging the validity of the show cause notice dated 30.03.2001 and the assessment order dated 28.04.2001 and for a direction to restore electric supply to the petitioner's service connection and the said suit is still pending before the District Munsif Court, Arakonam.
(ii) It is further stated in the counter affidavit that on 20.09.2003 while the petitioner's electricity service connection was again inspected by the third respondent along with the officials of the Anti Theft Squad, Kancheepuram, it was found that the petitioner was committing theft of energy by direct hook from the nearby main electric line. A criminal case was filed and a show cause notice dated 29.09.2003 was issued to the petitioner calling upon him to show cause as to why extra levy should not be recovered. But the petitioner neither gave any reply nor attended the enquiry. Hence the assessment order dated 04.11.2003 along with the working sheet for extra levy to an extent of Rs. 3,80,486/- as per Clause 8.02 of the terms and conditions of the Supply of Electricity was served on the petitioner and the petitioner was given an opportunity to pay the extra levy in 10 equal monthly instalments, but the petitioner failed to avail the opportunity. The petitioner without filing any appeal against the assessment order and suppressing all the facts filed W.P.No. 8331 of 2004 before this Court seeking for the issue of a Writ of Certiorarified Mandamus to quash the above said two assessment orders and for a direction to provide new electricity service connection to the petitioner's flour mill. By an order dated 31.03.2004 passed in WPMP No. 9793 of 2004 an interim direction to restore the connection was granted on the condition that the petitioner paying 50% of the amount demanded within a period of eight weeks. But the petitioner failed to pay the same and hence the interim order stood vacated. The petitioner thereafter filed Writ Appeal No. 1902 of 2004 against the order dated 18.05.2004, but the same was dismissed. The writ petition No. 8331 of 2004 is still pending.
(iii) It is further stated in the counter affidavit that though the petitioner was acquitted in the two criminal cases, the meters were found tampered by the petitioner and therefore the petitioner cannot escape from the financial liability arising out of the theft of energy. The petitioner has suppressed all the above said facts and has chosen to file the above writ petition on the ground the writ petition is liable to be dismissed.
4. Heard both.
5. Mr. R.Margabandu, learned Counsel for the petitioner submitted that since the petitioner had been acquitted by the Criminal Court in both the cases filed against him, the petitioner is entitled to get his electric service connection restored. In support of his contention the learned Counsel relied upon a decision of the Court reported in 1994 W.L.R. 197 (P.Subramaniam v. The Assistant Divisional Engineer and 2 Ors.). In the said decision the writ petition was filed challenging the order passed by the Appellate Authority confirming the assessment orders and in paragraph 4 it is observed as follows:
4. ...So long as the petitioner is not a consumer in respect of the said Survey Field No. 33, the only method by which the respondents can recover the loss, if any, suffered by them is to file a suit and prove to the satisfaction of a Civil Court that the petitioner had abstracted electrical energy to the extent of 21.485 units in the first case and 2,030 units in the second case.
...Even the very allegation of theft has been denied by the petitioner and the prosecution has ended in acquittal. Therefore, it is for the respondents to prove that the petitioner had committed theft of electrical energy".
The learned Judge relying upon an order dated 19.12.1990 passed in W.P.No. 125 of 1990 in the case of B.Venugopal Mudaliar v. Tamil Nadu Electricity Board, rep. By its Chairman, Madras - 2 and Ors. quashed the Appellate Authorities order on the ground that the show cause notice was vague and the principles of natural justice had been violated. The above said observation made in the said judgment clearly shows that the learned Judge has not laid down the proportion of law that once a criminal case filed against a consumer for theft of electrical energy ends in acquittal, the disconnected service connection should be restored or no proceeding for recovering of the loss occasioned by the theft of energy could be taken as contended by the learned Counsel for the petitioner. Therefore the above decision does not support the submission made by the learned Counsel for the petitioner.
6. The learned Counsel for the petitioner relied upon the decision in the case of S.Seetha v. The Assistant Execute Engineer, TNEB and reported in 1997 W.L.R. 147. In the said judgment in paragraph 5, it is observed as follows:
5. ... It seems that the Board had conducted the criminal proceedings which went against the Board, and even after the criminal proceedings, no further enquiry and proceedings were taken to quantify the loss that arose on account of the alleged theft of electrical energy. It is also not proved that there was actually a theft of electrical energy in any enquiry. In the absence of any enquiry or finding as regards the theft of electrical energy or the actual quantum of loss which arose on account of the alleged theft of electrical energy, the disconnection of the supply on the basis of estimated figure is not sustainable in law.
In paragraph 8 of the judgment it is observed as follows:
8. ...The decisions make it clear that there should be a proper enquiry to determine the amount of loss sustained by the Board. Unilateral decision could not be a sufficient compliance of the rules and regulations of the Board. Since the respondent has not afforded any opportunity before disconnecting and dismantling the installation, the removal of the installation is not sustainable in law.
...Of course, nothing prevents the respondent from taking appropriate action or holding proper enquiry, if it deems fit.
The above extracted portions from the said decision clearly shows that the said decision is not an authority for the proposition that once a criminal case against a consumer ends in acquittal, the electricity service connection disconnected for theft of electrical energy should be restored.
7. Mr. N. Srinivasan, learned Counsel for the Electricity Board reiterated the contentions raised in the counter affidavit and submitted that even though the criminal cases filed against the petitioner ended in acquittal that does not mean that the consumer can escape financial liability arising out of the theft. In support of his submissions, the learned Counsel relied upon the decision rendered in the case of M/s. Far East Tanning Company v. The Superintending Engineer (West) Vellore Electricity System, Gandhi Nagar, Vellore and another and reported in 1999 (3) M.L.J. 447. In the said decision in paragraph 16, it is observed as follows:
16. ...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 learned Counsel for the Electricity Board also relied upon the decision rendered in the case of Hindustan Engineering Industries v. The Assistant Divisional Engineer, O & M, Madras Electricity System and reported in 1995 (2) M.L.J. 479. In paragraph 4 it is observed as follows:
4. ... Therefore, the respondents are entitled to proceed on the basis that there has been theft of electricity energy if they find on inspection that artificial means had been adopted by the consumer. Unless the petitioners are able to establish that there were no such artificial means in the meter box or that the artificial means were not intended for abstracting electrical energy, one has to proceed on the basis that such artificial means indicate that the consumer had indulged in pilferage of electricity energy. The court can take judicial notice of the fact that the pilferage of electrical energy especially in factories and industries is very rampant in this State. It is true that the petitioner has been acquitted of the charge of theft in the criminal case instituted against him in C.C.No. 583 of 1989. But that will not absolve the consumer from the departmental action to assess the loss suffered by the Board. A reference may be made in this connection to the decision of a Divisional Bench of this Court in W.A.No. 411 of 1987 dated 09.11.1991. Therefore, the last argument that there is no finding of theft of electrical energy cannot be accepted by this Court.
In the light of the said decisions relied upon by the learned Counsel for the Electricity Board the contention of the Electricity Board merits acceptance rather than the submissions made by the learned Counsel for the petitioner.
8. In this case as detailed in the counter affidavit independent two assessment orders have been passed in respect of the above said two instances of theft of electrical energy and admittedly the petitioner had not filed the statutory appeals available under the terms and conditions of the Supply of Electricity and instead the writ petitioner has filed O.S.No. 176 of 2001 which is pending on the file of the District Munsif Court, Arakonam. Suppressing the pendency of the suit the petitioner has also filed W.P.No. 8331 of 2004 which is also pending on the file of this Court wherein the petitioner has challenged the working sheets dated 27.03.2001 and 16.11.2003 issued by the Executive Engineer, O & M, Tamil Nadu Electricity Board, Arakonam who is the second respondent in the above writ petition. In the said writ petition the petitioner has also sought for a direction to issue a new electricity service connection to the petitioner's Flour Mill.
9. All the above said facts have been totally suppressed in the above writ petition and the petitioner has approached this Court with unclean hands. The conduct of the petitioner in suppressing material facts and the pendency of the civil suit as well as the writ petition is condemnable and on that ground itself the above writ petition is liable to be dismissed.
10. For the foregoing reasons, the above writ petition is dismissed with costs of Rs. 10,000/- (Rupees Ten Thousand only). The petitioner shall deposit the cost of Rs. 10,000/- to "The Chief Justice Relief Fund" within a period of four weeks from the date of receipt of a copy of this order. Consequently, the connected WPMP is closed.