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Madras High Court

B.T.Kokila vs The Chairman on 23 December, 2011

Author: V.Ramasubramanian

Bench: V.Ramasubramanian

       

  

  

 
 
 Before the Madurai Bench of Madras High Court

Dated: 23/12/2011

Coram
The Honourable Mr.Justice V.RAMASUBRAMANIAN

WRIT PETITION (MD) No.2749 of 2010
WRIT PETITION (MD) Nos. 3090,3644, 3902, 4843, 4844, 7179, 9920, 10106,
11294, 11645, 12324, 12704, 14585 and 14633 of 2010 and 1812, 2779, 4027, 4906,
5967 to 5969, 6337, 8356, 8955, 9013, 10790, 11512 and 12730 of 2011

and all connected pending miscellaneous petitions

W.P.No.2749 of 2010 :

B.T.Kokila
						...Petitioner
Vs

1.The Chairman, Tamilnadu Electricity
   Board, Anna Salai, Chennai-2.

2.The Assistant Executive Engineer
   Operation and Maintenance, Tamilnadu
   Electricity Board, Viralimalai.
						...Respondents


!For Petitioner in WP.No.2749 of 2010 ... Mr.E.Vijay Anand
For Petitioner in WP.No.3090 of 2010  ... Mr.S.Balakarthick
For Petitioner in WP.No.3644 of 2010  ... Mr.R.A.S.Anandaraj
For Petitioner in WP.No.3902 of 2010  ... Mr.C.Dhanasekar
For Petitioners in WP.Nos.4843 and
4844 of 2010 			      ...
				          Mr.D.Gnanasekaran
For Petitioner in WP.No.7179 of 2010  ... Mr.T.Pon Ramkumar
For Petitioner in WP.No.9920 of 2010  ... Mr.A.S.Gopalamanikandan
For Petitioner in WP.No.10106 of 2010 ... Mr.R.Nandakumar
For Petitioner in WP.No.11294 of 2010 ... Mr.S.Jayavel
For Petitioner in WP.No.11645 of 2010 ... Mr.B.Pugalendhi
For Petitioner in WP.No.12324 of 2010 ... Mr.S.K.Patturaja
For Petitioner in WP.No.12704 of 2010 ... Mr.A.Thirumurthy
For Petitioner in WP.No.14585 of 2010 ... Mrs.AL.Gandhimathi
For Petitioner in WP.Nos.14633 of 2010 and 8356 of 2011 ...
					Mr.D.R.Murugesan
For Petitioner in WP.No.1812 of 2011 ... Mr.T.Arul
For Petitioner in WP.No.2779 of 2011 ... Mr.R.Senthilkumar
For Petitioner in WP.No.4027 of 2011 ... Mr.S.Kadarkarai
For Petitioner in WP.No.4906 of 2011 ... Mr.M.Ajmal Khan
For Petitioners in WP.Nos.5967 to 5969 of 2011 ... Mr.E.V.N.Siva
For Petitioner in WP.No.6337 of 2011 ... Mr.K.Sridhar
For Petitioner in WP.No.8955 of 2011 ... Mr.A.V.Arun
For Petitioner in WP.No.9013 of 2011 ... Mr.G.Marimuthu
For Petitioner in WP.No.10790 of 2011... Mr.A.Sivaji
For Petitioner in WP.No.11512 of 2011... Mr.V.Sasikumar
For Petitioner in WP.No.12730 of 2011... Mr.G.Sankaran
^For Respondents in WP.Nos.2749, 3090, 3644, 3902, 4843, 4844,
9920, 10106, 11294, 12704, 14585 and 14633 of 2010 and 2779,
5967 to 5969, 8356, 8955 and 12370 of 2011 ...
					Mr.S.M.S.Johny Basha,
					Senior Standing Counsel for TNEB
For Respondents in WP.Nos.7179, 11645 and 12324 of 2010 and
1812, 4027, 4906, 6337, 9013, 10790 and 11512 of 2011  ...
					Mr.G.Kasinathadurai,
					Standing Counsel for TNEB

:COMMON ORDER

While some writ petitions arise out of provisional assessment orders, some writ petitions arise out of final assessment orders slapped by the Electricity Board under Regulation 23(AA) of the Tamil Nadu Electricity Supply Code. Since the issues raised in all the writ petitions, fall only under 2 or 3 categories, all the writ petitions were grouped together and taken up by me for final disposal.

2. The petitioners in all the writ petitions have been charged by the respondents with theft of energy. In a few cases, domestic service connections are alleged to have been used for commercial purposes. In a few cases, there are allegations of tampering of meters. In a few cases, agricultural service connections are said to have been used for non agricultural purposes. In other words, all the cases on hand, barring one or two, are cases in which proceedings under Section 135 of the Electricity Act, 2003, have been initiated.

3. In some cases, the petitioners have come up with writ petitions, immediately after provisional assessment orders were passed. In other cases, the petitioners have allowed the provisional assessment orders to be followed by final assessment orders, either after submitting or without submitting their objections to the provisional assessment orders.

4. Irrespective of whether they have come up against provisional assessment orders or final assessment orders, the petitioners are mostly on common ground. It is their grievance that the respondents have acted in an arbitrary manner, converting every innocent unauthorised use of energy chargeable under Section 126 into a theft of energy under Section 135, according to their whims and fancies and that there was virtually no rationale or basis for the respondents to do so. Some of the learned counsel went to the extent of contending that if the respondents choose to proceed under Section 135, they have only one option, namely to initiate prosecution before the Special Court and then leave it to the Special Court itself to assess the loss or damage, by whatever name it is called, under Section 154 (5) of the Act. In other words, it is their contention that the Electricity Act, 2003 maintains a distinction between a mere unauthorised use under Section 126 and a theft of energy under Section 135 and that in a proceeding under Section 135, the procedure under Section 126 cannot be juxtaposed.

5. But the above argument is not available to the petitioners any more, in view of the recent decision of the Supreme Court in The Executive Engineer vs. M/s. Sri Seetaram Rice Mill decided on 20.10.2011. What makes Section 135 distinct and different from Section 126, is the fact that the consumer must be alleged to be guilty of dishonest intention, to be liable to be proceeded under Section 135.

6. Section 126, after amendment under The Electricity (Amendment) Act, 2007, reads as follows :

"126. Assessment :- (1) 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 the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally access to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the Assessing Officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.

(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him. (5) If the Assessing Officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. (6) The assessment under the section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5).

Explanation : For the purposes of this section, -

(a) "Assessing Officer" means an officer of a State Government or Board or licensee, as the case may be, designed as such by the State Government;

(b) "unauthorised use of electricity" means the usage of electricity-

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised; or

(v) for the premises or areas other than those for which the supply of electricity was authorised."

7. Section 135, after amendment, reads as follows :

"135. Theft of electricity :- (1) Whoever, dishonestly, -

(a) taps, makes or causes to be made any connection with overhead, underground or underwater lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or

(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or

(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or

(d) uses electricity through a tampered meter; or

(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use-

(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;

(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:

Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:

Provided also that if it is proved that any artificial means or means not authorised by the Board or license or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. (1-A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity; Provided that only such officer of the licensee or supplier, as authorised for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity : Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection :

Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty eight hours of such deposit or payment." "

8. Sections 154 (5) and (6) read as follows :

"Section 154(5) : The Special Court shall determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.

Section 154(6) : In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment. Explanation : For the purposes of this section, 'civil liability' means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in Sections 135 to 140 and Section 150."

9. Whenever a person is charged under Section 126 merely with unauthorised use of electricity, without a dishonest intention, the respondents are obliged to follow the following procedure :

(i) a provisional order should be made by the assessing officer under sub-

section (1), assessing to the best of his judgment, the electricity charges payable by such person or by a person who benefited by the unauthorised use;

(ii) the provisional assessment order should be served in such manner as prescribed, upon the person in occupation or in charge of the place;

(iii) the person on whom the provisional order is served is entitled to file his objections. The Assessing Officer should then afford a reasonable opportunity of hearing to such a person. Thereafter, the Assessing Officer shall pass a final assessment order within 30 days of the service of the provisional assessment order.

(iv) The assessment so made, shall be for the entire period during which the unauthorised use had taken place. But if the period of unauthorised use cannot be determined, such period shall be limited to twelve months immediately preceding the date of inspection. The assessment so made shall be at a rate equal to twice the tariff applicable for the relevant category of service.

10. A comparison of Section 126 as it stood before the Amendment Act 26 of 2007, with the one as it stands today, would show that the amendment brought forth five changes to Section 126. They are :

(i) Under sub-section (3), the Assessing Officer is obliged to pass a final order of assessment, after affording a reasonable opportunity of hearing to persons who filed objections to the provisional orders of assessment. The Amendment Act has introduced a time limit of 30 days for the Assessing Officer to pass a final order of assessment

(ii) Prior to amendment, sub-section (4) contained a proviso, which stipulated that if a person accepts the provisional order of assessment and deposits the assessed amount within 7 days of service of the provisional order, he shall not be subjected to any further liability or any action by any authority whatsoever. But this proviso was removed by the Amendment Act.

Therefore, the payment of the amount indicated in the provisional order of assessment, does not grant immunity any more.

(iii) Prior to amendment, sub-section (5) raised a limited presumption that the unauthorised use of electricity was continuing for three months immediately preceding the date of inspection, in cases of domestic and agricultural services and for a period of six months, immediately preceding the date of inspection, for all other categories of services, unless the presumption is rebutted by the consumer. After amendment, two choices are given to the Assessing Officer. The first choice is to assess the usage for the entire period of unauthorised use, if the period can be ascertained by him. If the period cannot be ascertained by him, the Assessing Officer shall limit it to a period of twelve months immediately preceding the date of inspection.

(iv) Prior to amendment, the assessment was to be made at a rate equal to 1-1/2 times the tariff applicable to the relevant category of service. After amendment, it is twice the tariff.

(v) In the definition of the expression "unauthorised use of electricity"

given in Clause (b) of the Explanation under Section 126, the Amendment Act 2007 introduced one more sub-clause. By this, the usage of electricity "for the premises or areas other than those for which the supply of electricity was authorised", has also been made an unauthorised use.

11. Two interesting arguments are advanced by some of the learned counsel for the writ petitioners. They are:-

(i) There is no prescription in Section 135 to assess and levy any charges, loss or compensation. Therefore, if the respondents choose to initiate prosecution under Section 135, the same could result either in the conviction or in the acquittal of the consumer, but not in the assessment and levy of any charges, by whatever name the charges are called, such as consumption charges, compensation or loss. It is only if the respondents choose to initiate proceedings under Section 126 that an assessment and levy can be made.

(ii) Assuming without admitting that there can be an assessment and levy even in a proceeding under Section 135, the same can be done only by the Special Court in view of the provisions of Section 154 (5). The power specifically conferred upon the Special Court under Section 154 (5) to assess the civil liability of the person committing theft of energy, cannot be usurped by the respondents under Regulation 23(AA) of the Supply Code, which is only a subordinate legislation.

Now let me see how far these 2 arguments are sustainable.

12. In order to test the correctness of the first contention, it is necessary to dissect Section 135(1) and the provisos thereunder into several parts. If so done, it would be clear that Section 135(1) prescribes the following punishments that could be inflicted upon a person against whom the offence of theft of energy is established :

(i) Imprisonment for a term which may extend to three years or with fine or with both;

(ii) The fine amount on first conviction shall not be less than three times the financial gain made by the guilty person, if the load used by him by way of consumption does not exceed 10 kilowatt;

(iii) The fine amount on second and subsequent convictions shall not be less than six times the financial gain, if the energy stolen does not exceed 10 kilowatt;

(iv) The fine amount on first conviction shall not be less than three times the financial gain, if the theft of energy exceeds 10 kilowatt; and

(v) On second and subsequent convictions for theft of energy exceeding 10 kilowatt, the fine amount shall not be less than six times the financial gain apart from a minimum imprisonment of not less than six months.

13. A look at Section 135(1) in isolation would give an impression as though there is no question of assessment under Section 135, though the imposition of fine to the extent of three times or six times the financial gain made by the accused is permissible.

14. But after the introduction of sub-section (1-A), the doubt regarding the question of assessment in cases of theft got cleared. The third proviso to sub-section (1-A) enables the licensee or supplier to restore the supply line within 48 hours of the deposit of the assessed amount or electricity charges in accordance with the provisions of this Act. The first and substantial part of sub-section (1-A) enables the licensee to disconnect supply immediately upon the detection of theft. The third proviso makes restoration of supply possible only upon payment of the assessed amount. The third proviso uses the expression "assessed amount or electricity charges in accordance with the provisions of this Act". Therefore, there is a clear indication in the Section itself that there can be an assessment.

15. In accordance with the provisions of Section 50 read with Section 181, the Supply Code 2004 was issued by the Tamilnadu Electricity Regulatory Commission. The procedure for assessment in cases of theft of energy, is stipulated in Regulation 23 (AA) of the Supply Code. Therefore, the third proviso to sub-section (1-A) of Section 135 has to be read along with Regulation 23(AA). The procedure prescribed by Regulation 23(AA) is as follows :

(i) The Authorised Officer shall prepare a report on the spot containing details such as connected load, condition of seals, working of meter and record, modus operandi adopted for theft, etc.

(ii) The said report shall be signed by the Authorised Officer and any other Officer accompanying him.

(iii) The copy of the report shall be handed over to the accused or his representative. If they refuse to receive it, it may be pasted on a conspicuous place.

(iv) Under Clause (7) of Regulation 23(AA), the Authorised Officer shall assess the quantum of energy consumed in the past twelve months as per the assessment formula contained in Form-8 in the Appendix to the Code and prepare a provisional assessment order at twice the rate of tariff applicable.

(v) The provisional assessment order shall be served on the accused person, who is entitled to establish by facts or documents that the assessment was wrong.

(vi) The provisional assessment order is to be served in Form-9 within 5 days of inspection and the accused person shall be given seven days' time to submit his representation.

(vii) If no reply is received from the accused within 7 working days, the licensee is entitled to initiate proceedings for recovery as per the provisional assessment order.

(viii) But, if the accused submits a reply to the provisional assessment order, the Authorised Officer shall arrange a personal hearing, in terms of Clause (12) of Regulation 23(AA).

(ix) The notice of personal hearing should be served at least 3 days in advance. Even before the personal hearing, the Authorised Officer is obliged to analyse the case carefully by considering all the documents and submissions, the facts on record and the consumption pattern.

(x) After personal hearing, a final assessment order is to be passed. The final assessment order is to be in Form-10 as contained in the Appendix to the Code. This final assessment order should be a speaking order as per Clause (15) of Regulation 23 (AA) and the same shall require the accused to make payment within 7 days of the receipt of the final assessment order.

(xi) If payment is made within 7 working days, as required in the final assessment order, then the supply of electricity to the premises is liable to be restored in terms of Clause (17) of Regulation 23(AA), as per the third proviso to Section 135(1-A).

16. Thus, a detailed procedure is prescribed under Regulation 23(AA) for the assessment of charges, if proceedings under Section 135(1-A) are initiated. It must be noted that sub-section (1-A) to Section 135 as well as new Regulation 23(AA) were inserted only in the year 2007 by way of amendments. Therefore, even if there was any doubt about the entitlement of the licensee to assess the charges, in cases of theft of energy, the same got cleared after the amendments made in the year 2007 to Section 135 and to Regulation 23(AA) of the Supply Code. Hence, the first contention that there is no provision for assessment, whenever a theft is alleged under Section 135, will not stand any more.

17. Even the issue of compounding of offences under Secton 135 is taken care of by Section 152 and Regulation 23(AA)(22) of the Supply Code. Section 152 reads as follows :

"Compounding of offences : (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Appropriate Government or any officer authorised by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified in the Table below :

Nature of Service Rate at which the sum of money for compounding to be collected per kilowatt (KW)/ horse power (HP) or part thereof for Low Tension (LT) supply and per Kilo Volt Ampere (KVA) of contracted demand for High Tension (HT)

1. Industrial Service

2.Commercial Service

3.Agricultural Service

4.Other Services Twenty thousand rupees Ten thousand rupees Two thousand rupees Four thousand rupees Provided that the Appropriate Government may, by notification in the Official Gazette, amend the rates specified in the Table above.

(2) On payment of the sum of money in accordance with sub-section (1), any person in custody in connection with that offence shall be set at liberty and no proceedings shall be instituted or continued against such consumer or person in any Criminal Court.

(3) The acceptance of the sum of money for compounding an offence in accordance with sub-section (1) by the Appropriate Government or an officer empowered in this behalf shall be deemed to amount to an acquittal within the meaning of Section 300 of the Code of Criminal Procedure, 1973 (2 of 1974). (4) The compounding of an offence under sub-section (1) shall be allowed only once for any person or consumer."

Regulation 23(AA)(22) reads as follows :

"In case of compounding, the notice as in Form-11 in Appendix to this Code may be issued and the amount collected as per Section 152 of the Act."

18. It is needless to point out that the purpose of compounding an offence is to avert the disgrace and ignominy of a prosecution. In one of the earliest cases, which arose under the Income Tax Act of 1922, the assessee was found to have concealed income of over Rs.30,000/-. When a show cause notice was issued for prosecution, the assessee compounded the offence by making payment of Rs.30,000/-. Later, he went to Court complaining (as has been done by some of the writ petitioners herein) that the compounding fee was extorted from him under threat of legal proceedings and that he had not committed any offence. While rejecting his plea, the Supreme Court pointed out in Shamrao Bhagwantrao Deshmukh Vs Dominion of India (AIR 1955 SC 249) that the object of compounding is to avert the disgrace and ignominy of a prosecution.

19. Keeping in mind the broad objective of compounding of offences, if we look at Section 152(2) of the Electricity Act, 2003, it would be clear that once the compounding fee is paid under sub-section (1), no proceedings can be instituted or continued against such consumer in any Criminal Court. If no proceedings can be instituted or continued in any Criminal Court, after compounding fee is paid, the Special Court would cease to have jurisdiction to proceed any further, for the exercise of the powers conferred under Section 154 (5). In other words, the Special Court would lose its jurisdiction either to try a person for the offences committed under the Act or to determine the civil liability against such a person.

20. It is seen from Section 154 that the Special Court is primarily a Criminal Court, as it is conferred with the power to try the offences punishable under Sections 135 to 140 and 150 of the Electricity Act, 2003 by virtue of sub- sections (1) to (4) of Section 154. Despite being a Criminal Court, which is vested with the powers (i) to try the offences;(ii) to punish the guilty; and

(iii) to even tender pardon, the Special Court is also vested with the powers under sub-sections (5) and (6) to determine the civil liability of a person accused of theft of energy. The fact that the Special Court is treated only as a Criminal Court is made clear by Section 155, which declares the Special Court to be "a Court of Session". Consequently, the judgments rendered by the Special Court are only subject to appellate and revisional jurisdiction of this Court under Section 156, in a manner similar to those prescribed by Chapters 29 and 30 of the Code of Criminal Procedure.

21. An interesting facet of Sections 154 to 156 is that while the Special Court is itself deemed to be only a Court of Session under Section 155, any civil liability determined by such a Court under Section 154(5) can be recovered as if it were a decree of a Civil Court. Thus there are two deeming fictions. One makes the Special Court, a Court of Session. Another makes the order of the Special Court determining civil liability under Section 154(5), executable as if it is a decree of a Civil Court. But, there is no provision in the Electricity Act, 2003 conferring jurisdiction upon the Special Court to exercise all the powers conferred upon a Civil Court under Order XXI of the Code of Civil Procedure.

22. Therefore, the mandate contained in Section 152(2) that after the payment of compounding fee, no proceedings shall be instituted or continued against the consumer in any Criminal Court is to be understood to mean that no proceedings can be instituted or continued before the Special Court. The expression "Criminal Court" appearing in Section 152(2) denotes only the Special Court constituted under Section 153(1), which is deemed to be a Court of Session under Section 155. Therefore, after compounding fee is paid, no proceedings can be instituted or continued in a Special Court, either for trying and punishing the offender for his criminal liability or for determining his civil liability under Sections 154(5) and (6). This answers the second argument of the learned counsel for the writ petitioners.

23. Once it is clear that the issue cannot either go or continue before the Special Court after compounding fee is paid, Section 154(5) cannot be used by the petitioners even as a shield. Once the Special Court loses its powers even to determine civil liability, after the offence is compounded, the only method by which the respondents can determine the civil liability of the assessee, who committed theft of energy is to take recourse to Regulation 23(AA) of the Supply Code. Section 152 does not wipe out the civil liability. It only wipes out the criminal liability. This is why Section 152 does not talk about restoration of supply. Unlike in the case of proceedings under Section 126, disconnection of supply is imminent, in view of sub-section (1-A) of Section

135. The restoration of the disconnected supply is possible only upon payment of the assessed amount, by virtue of the third proviso under Section 135(1-A). Section 152, which speaks of the compounding of the offences does not deal with the question of restoration of supply or the discharge of civil liability. Therefore, the power to determine the civil liability would get retained with the Competent Authority under Regulation 23(AA), if the offence is compounded.

24. In a nutshell, if a person chooses not to compound the offence, but to face the criminal prosecution, it is the Special Court, which will determine both his criminal liability as well as his civil liability. In those cases, the respondents may not take recourse to Regulation 23(AA). But in cases were an offence is compounded, the matter does not go or continue before the Special Court. There would be no prosecution under Section 154, but there would be assessment of charges by the licensee in terms of Regulation 23(AA). In either of these circumstances, the payment of charges as determined either under Regulation 23 (AA) or under section 154 (5) is a sine quo non for restoration of supply. Therefore, all the legal objections raised by the petitioners to the provisional or final assessments, are bound to fail.

25. Once the legal objections to the provisional or final assessment orders fall to the ground, the scope of the enquiry that could be conducted under Article 226 against these assessment orders gets narrowed down to a few and disputed facts at the most. Even here, in cases where only provisional assessment orders have been served, the appropriate remedy open to the petitioners is only to give a reply, request for a personal hearing and thereafter invite a final assessment order. This alone would enable the petitioners to get findings of fact recorded at the first level.

26. In cases where the petitioners have come up against the final assessment orders, this Court can conduct a limited enquiry to find out whether the procedure prescribed by Regulation 23(AA) has been followed or not. Therefore, I have divided all the writ petitions broadly into two categories, namely, those which have arisen out of provisional assessment orders and those which have arisen out of final assessment orders.

WRIT PETITIONS ARISING OUT OF PROVISIONAL ASSESSMENT ORDERS :

27. W.P.Nos.2749, 11294, 11645 and 14633 of 2010 as well as W.P. Nos. 9013, 10790 and 11512 of 2011, arise out of provisional assessment orders.

28. In W.P.No.2749 of 2010, the petitioner has one agricultural service connection bearing S.C.No.295 and another service connection bearing S.C. No.379. The other service connection is used for a college of education run by the petitioner's husband. An inspection was conducted on 17.2.2009 and theft of energy was alleged to have been committed by the petitioner in the agricultural service connection. The service connection was disconnected in terms of Section 135(1-A) of the Act. The Manager of the College of Education paid the compounding fee of Rs.9,000/-. Thereafter, a provisional assessment order was issued on 18.12.2009, determining the approximate loss caused by the theft of energy as Rs.1,58,820/-. Though the petitioner was given an opportunity to file objections and the petitioner claims to have filed objections on 25.12.2009, the petitioner came up with the above writ petition, without waiting for an enquiry to be conducted in terms of Regulation 23(AA). On 8.3.2010, this Court passed a conditional order and the petitioner claims to have paid 50% of the amount demanded in the order.

Under normal circumstances, the supply can be restored only after the entire amount is paid. But by virtue of the interim order supply has been restored after payment of 50% of the demand. Though a final assessment order is to be passed, it is not done due to the pendency of the writ petition. Therefore, I am of the view that the writ petition could be disposed of with certain directions so that the adjudication is completed. Accordingly, W.P.No.2749 of 2010 is disposed of with the following directions:-

(i) The petitioner shall file objections to the provisional assessment order, within 2 weeks of receipt of a copy of this order.

(ii) Within 4 weeks of receipt of the objections from the petitioner, the Assessing Officer shall conduct an oral hearing after putting the petitioner on notice sufficiently in advance and pass a final assessment order.

(iii) In the personal hearing, the petitioner shall file all documents relied upon by him. The assessing officer shall consider all the objections and look into all the documents relied on by the petitioner and then pass a reasoned final order.

(iv) If the service connection of the petitioner has already been restored, on account of payment of 50% of the amount in pursuance of the interim orders passed by this Court, the status-quo shall continue till final assessment orders are passed.

(v) If the supply is under disconnection, the same shall be restored upon payment of 50% of the demand, failing which, it shall await the outcome of the final assessment proceedings; and

(vi) Once a final assessment order is passed, it will be open to the respondents to enforce Section 135(1-A) and disconnect supply immediately and the same shall not be restored unless the entire amount as per the final assessment order is paid.

W.P.No.11294 of 2010:

29. The petitioner has an agricultural service connection bearing No. 381. According to the petitioner, her husband allowed a school located in the adjoining building, to draw water through a PVC pipeline laid in her agricultural land. On an inspection of the service connection made on 11.8.2010, the respondent found this out and charged the petitioner of theft of energy. The compounding fee of Rs.8,000/- was admittedly paid by the petitioner's husband. The respondent also issued a working sheet showing the amount of compensation charges payable as Rs.1,51,524.72. Thereafter, even before the issue of provisional and final assessment orders, the petitioner has come up with the above writ petition.

30. The petitioner has not come up against the provisional or final assessment order. She has come up against the letter issued by the respondent, calling upon the petitioner to pay Rs.8,000/- towards compounding fee. This compounding fee has also been paid. Therefore, the petitioner cannot challenge the letter demanding compounding fee. If the petitioner does not want to compound the offence, she has to face prosecution for the offence of theft of energy. After compounding, she cannot go back.

31. Therefore, W.P.No.11294 of 2010 is disposed of, on the following terms:-

(i) The assessing officer is directed to issue a provisional assessment order within two weeks of receipt of a copy of this order.

(ii) Within 2 weeks of receipt of the provisional assessment order, the petitioner shall file her objections.

(iii) Thereafter, the officer shall issue a notice fixing a date for personal hearing. On that date, the petitioner may file all documents on which he relies upon. Thereafter, the assessing officer shall pass a final assessment orders.

(v) Since the petitioner has not paid any money and the supply is under disconnection, it is open to the petitioner to pay 50% of the amount demanded and seek restoration, without prejudice to his right to participate in the enquiry.

32. The petitioner has a service connection bearing No.A.129 for the Ice factory run by him. On 27.8.2010, an inspection took place and it was alleged that there was tampering of meter, leading to theft of energy. The petitioner paid compounding fee of Rs.2,95,000/-. Thereafter, a provisional assessment order dated 28.8.2010 was issued demanding payment of a sum of Rs.27,78,591/-. The service connection was disconnected on 27.8.2010, in terms of Section 135(1A). Challenging the provisional assessment order dated 28.8.2010 and also seeking refund of the compounding fee collected from him, the petitioner is before this Court.

33. At the time of admission of the writ petition, this Court had passed an interim order dated 07.9.2010, directing restoration of service connection upon payment of a sum of Rs.5.00 Lakhs. The petitioner appears to have paid the amount and the service connection was restored on 17.9.2010. Thereafter, the writ petition has come up for hearing.

34. But, it appears from the counter filed by the respondents that a final assessment order was also passed on 21.10.2010, in terms of Regulation 23(AA). Obviously, the same has been passed during the pendency of the writ petition, when even the provisional assessment order is under challenge. Consequently, the petitioner has not participated in the enquiry and the procedure prescribed by Regulation 23(AA) has not been complied with, before the final order was passed on 21.10.2010. Therefore, I am of the view that the respondent should be directed to give an opportunity to the petitioner to participate in the enquiry before a final assessment order is passed. This is necessary for two reasons, namely,

(i) if the petitioner refuses to compound the offence, he would be prosecuted before the Special Court and the Special Court would determine his civil liability in terms of Section 154(5). At that time, he would have a full opportunity of objecting to the assessment of civil liability. Since the petitioner compounded the offences, the determination of civil liability was taken up by the respondent himself. Therefore, he should follow the procedure, including an opportunity of personal hearing;

(ii) more over, an appeal as against a final assessment order would lie only to the Appellate Tribunal at Delhi, in terms of Section 111. When the appeal remedy provided by the Act is by itself a harsh remedy, the responsibility of the original authority to conduct a proper enquiry before passing a final assessment order is very high.

35. Therefore, the writ petition is disposed of with the following directions:

(a) since out of the total demand of Rs.27,78,591/-, the petitioner has paid a sum of Rs.5.00 Lakhs, the petitioner shall pay another amount of Rs.9.00 Lakhs within two weeks, so that the total amount paid by him would come to at least 50% of the total demand made. If this additional amount is not paid, it is open to the respondent to take recourse to Section 135(1A);

(b) within 2 weeks of receipt of a copy of this order, the petitioner shall file his objections to the provisional assessment order.

(c) Within four weeks from the date of the petitioner filing objections, the Assessing Officer shall hold a personal hearing, allow the petitioner to file documents, hear his submissions and pass a final assessment order.

(d) After final assessment order is passed, it is open to the respondent to take recourse to Section 135(1A), if any extra amount becomes payable as per the final assessment order.

(e) It is open to the petitioner to produce all documents, such as the records relating to production, stock in trade, sales turn over, etc., before the Assessing Officer.

36. The petitioner has an agricultural service connection bearing No.481. It is relevant to note that it is a free service connection granted by the Government. On 10.12.2010, there was an inspection of the service connection by the officials of the respondent Board. It was alleged by the respondents that the petitioner committed theft of energy by using the agricultural service connection to take water through a one inch pipe to a coir factory run by him. The petitioner paid Rs.12,000/- towards compounding fee and he was given a working sheet asking him to pay compensation charges of Rs.70,715/-. The service connection was disconnected and thereafter, the petitioner has come up with the above writ petition merely challenging the working sheet.

37. The working sheet served on the petitioner is not a provisional assessment order in terms of Regulation 23(AA) of the Supply Code. Therefore, it is a case where neither a provisional assessment order, nor a final assessment order has been passed in terms of the Act and the Supply Code. The inspection report and the working sheet alone are under challenge. But, it appears that pending the writ petition, a final assessment order itself was passed, reducing the demand from Rs.70,715/- to Rs.55,795/-. It is stated by the Standing Counsel for the Board that the petitioner filed an appeal to the Superintending Engineer, after paying Rs.18,600/-. The service connection of the petitioner has also been restored, in pursuance of interim orders passed.

38. Since the respondents claim to have passed a final assessment order pending writ petition, it is liable to be ignored. It is liable to be ignored for one more reason, namely, that the working sheet, on the basis of which the above writ petition is filed, cannot be taken to be a provisional assessment order under Regulation 23(AA) as it is not in the prescribed format. Therefore, taking into account the above, the writ petition is disposed of with the following directions:

(a) The respondents are directed to issue a provisional assessment order, within two weeks of receipt of a copy of this order.

(b) Within two weeks of receipt of the provisional assessment order, the petitioner shall file his objections.

(c) Within four weeks of the receipt of objections, the respondents shall fix a date of hearing, give an opportunity of personal hearing to the petitioner and pass a final assessment order.

(d) The petitioner shall continue to enjoy the supply of electricity, which is restored in pursuance of the interim orders of this Court, subject to his making payment of another sum of Rs.10,000/- within two weeks. This sum of Rs.10,000/-

has been arrived at, by taking into account the fact that out of the final demand of Rs.55,795/-, the petitioner has already paid Rs.18,600/- and that therefore, with the payment of another sum of Rs.10,000/-, at least 50% of the demand would have been made; and

(e) But, after the final assessment order is passed, it is open to the respondents to proceed as per Section 135(1A).

39. The petitioner has an agricultural service connection bearing No.3. On 11.10.2010, there was an inspection and it was alleged that by misusing the agricultural service connection, the petitioner drew water for use in a commercial shopping complex owned by him. The petitioner paid compounding fee of Rs.12,000/- and his service connection was disconnected. A working sheet was issued to the petitioner asking him to pay an amount of Rs.1,06,880/- towards compensation charges. Subsequently, a provisional assessment order was issued on 09.11.2010, challenging which, the petitioner has come up with the above writ petition.

40. It is admitted by the respondent that no final assessment order has so far been passed. Out of the demand of Rs.1,06,880/-, the petitioner paid Rs.30,000/- in pursuance of an interim order passed and got his service connection restored. In view of the above, the writ petition is disposed of with the following directions:

(a) The petitioner shall file his objections to the provisional assessment order, within two weeks of receipt of a copy of this order;

(b) Within four weeks of receipt of objections, the Assessing Officer shall hold a personal hearing, allow the petitioner to file documents, hear his submissions and pass a final assessment order;

(c) Since the petitioner has paid only Rs.30,000/- out of Rs.1,06,880/-, the petitioner shall pay another sum of Rs.23,000/- within two weeks to enable him to continue to have the benefit of the service connection restored in pursuance of the interim order. This order will ensure that at least 50% of the demand has been paid by him; and

(d) However, after final assessment order is passed, it is open to the respondent to take recourse to Section 135(1A).

41. The petitioner has an agricultural service connection bearing No.112. On 06.10.2010, there was an inspection by the Officials of the Electricity Board, during which, they allegedly found out that a water tanker lorry belonging to A.Muthulakshmi Water Suppliers was drawing water from the well using the petitioner's service connection, for non agricultural purposes. The driver of the tanker lorry is stated to have paid the compounding fee of Rs.4,000/- and the service connection was disconnected on 09.10.2010. An amount of Rs.71,249/- was demanded from the petitioner. Challenging the demand of Rs.71,249/- made by the respondents and the disconnection effected, the petitioner has come up with the above writ petition.

42. The letter of demand dated 28.10.2010 issued by the third respondent, is neither a provisional nor a final assessment order. It is a letter demanding payment of the compensation amount, for effecting re-connection in terms of Section 135(1A) and the provisos thereunder. A provisional order should be in the format prescribed by Regulation 23 (AA). Therefore W.P.No.10790 of 2011 is disposed of to the following effect:-

(a) The respondents shall issue a provisional assessment order in terms of Regulation 23(AA) of the Supply Code, 2004, within two weeks of the receipt of a copy of this order.

(b) Within two weeks of receipt of the provisional assessment order, the petitioner shall file his objections.

(c) Within 4 weeks of receipt of the objections, the assessing officer shall hold a personal hearing, allow the petitioner to file documents and make submissions and then pass final assessment orders.

(d) As in other cases, it is open to the petitioner to pay 50% of the amount demanded to have the supply restored.

43. The petitioner has a free agricultural service connection bearing No.087. On 13.9.2011, there was an inspection of the service connection and it was found that the petitioner was using agricultural service connection for a brick kiln run by him. Therefore, he was charged with theft of energy and the petitioner's wife paid a sum of Rs.50,000/-. Subsequently, another amount of Rs.13,000/- was paid and compounding fee of Rs.12,000/- was also paid. The total demand made by the respondents was for a sum of Rs.1,18,000/-. Since the petitioner already paid Rs.63,000/- towards the demand and Rs.12,000/- towards compounding fee, the respondents demanded the balance payment. As it was not paid, the service connection was disconnected on 30.9.2011. Thereafter, he has come up with the above writ petition seeking a Mandamus to direct the third respondent to refund the amount of Rs.75,000/- already paid by him and to restore the service connection.

44. The respondents have filed a counter affidavit disclosing shocking facts. The petitioner is employed as a police constable and his wife is employed as a teacher. The free agricultural service connection has been given in the name of the petitioner's father. The petitioner has not even disclosed in the affidavit in support of the writ petition that he is a police constable. On the contrary, the petitioner has claimed in paragraph 2 of the affidavit that he is an agriculturist.

45. It appears that the service connection of the petitioner was restored, in pursuance of an interim order passed on 13.10.2011, on condition that the petitioner pays Rs.20,000/-. He has already paid the sum of Rs.20,000/- . With this payment, the petitioner has actually paid a sum of Rs.95,000/- out of the total demand of Rs.1,18,000/-. But, a sum of Rs.12,000/- already paid by him represents the compounding fee. Therefore, the same cannot be taken into account towards the demand of Rs.1,18,000/-

46. But, admittedly, no final assessment order has been passed so far. Therefore, I am of the view that the writ petition could be disposed of, directing the respondents to pass final assessment orders. Even while doing so, I think the petitioner should be directed to pay the entire balance amount for continued enjoyment of the service connection, as he is guilty of suppression of facts.

47. Therefore, this writ petition is disposed of with the following directions:

(a) the petitioner shall pay the balance amount of Rs.35,000/-

(Rs.1,18,000/- minus Rs.50,000/-, Rs.13,000/- and Rs.20,000/- already paid) within two weeks of receipt of a copy of this order, failing which, the respondents may disconnect the supply;

(b) the petitioner shall submit his objections to the provisional assessment of Rs.1,18,000/-, within two weeks of receipt of a copy of this order;

(c) within four weeks of the petitioner filing objections, the Assessing Officer shall hold a personal hearing, allow the petitioner to file necessary documents and pass final assessment orders, in accordance with law. WRIT PETITIONS CHALLENGING FINAL ASSESSMENT ORDERS W.P.(MD) No.3090 of 2010

48. The petitioner has a service connection bearing No.C2091. On 18.9.2009, there was a surprise inspection and an allegation of theft of energy was made on the ground that the petitioner was using the service connection for the construction of a hostel building for the College. A compounding fee of Rs.4,000/- was paid.

49. Thereafter, a provisional assessment order was issued and the petitioner appears to have given a reply on 19.10.2009. Rejecting the objections of the petitioner, a final assessment order was passed on 02.11.2009 confirming the levy of Rs.68,160/- in terms of Regulation 23(AA)(15) of the Supply Code. Challenging the final assessment order, the petitioner is before this Court.

50. Pursuant to an interim order passed by this Court, the supply was restored to the petitioner after they complied with the condition for making payment of Rs.10,000/-. In other words, the petitioner has already paid Rs.10,000/-, out of the amount of Rs.68,160/- determined in the final assessment order.

51. In normal circumstances, the petitioner should go only to the Appellate Tribunal at Delhi under Section 111 of the Act, challenging the final assessment order. But, unfortunately, the impugned final assessment order shows total non application of mind and non consideration of the objections of the petitioner. The impugned order has been passed in a cyclostyled format, without dealing with any of the objections of the petitioner. In the cyclostyled format, the details regarding service connection, the name of the consumer and the amount determined have just been filled up.

52. As pointed out elsewhere, Regulation 23(AA) imposes at least three obligations upon the Assessing Officer, namely, (i) to serve a provisional assessment and call upon the consumer to file objections within a stipulated time; (ii) to conduct a personal hearing giving opportunity to the consumer to produce records and make submissions; and (iii) to pass a final order, after considering the objections and the documents filed by the consumer. Regulation 23(AA) confers powers upon the Assessing Officer to do what a Special Court would do under Section 154(5), in so far as civil liability is concerned. Therefore, the procedure prescribed, cannot be turned into an empty formality. It is true that the provisional and final assessment orders are to be in Forms 9 and 10 of the Appendix to the Supply Code, as per Regulation 23 (AA)(8) and 23(AA)(15) respectively. But the blind adherence to the Forms cannot be at the cost of substance. Even while passing orders as per those Forms, the assessing officer should disclose an application of mind to the objections and documents. Since it has not been done by the respondents in this case, the impugned order is liable to be set aside.

53. Accordingly, the writ petition is ordered on the following terms:

(a) the final assessment order dated 02.11.2009, impugned in the writ petition, is set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; and

(e) since the petitioner has only paid Rs.10,000/- out of the demand of Rs.68,160/-, he shall pay another amount of Rs.24,000/- ( so as to make the payment, 50% of the total demand) within two weeks, failing which, the service connection can be disconnected.

54. The petitioner has an agricultural service connection bearing No.283. On 11.9.2009, there was a surprise inspection, during which, the respondents allegedly found out that the petitioner was rearing fish in a small pond by pumping the water into the pond using agricultural service connection. The petitioner paid Rs.8,000/- towards compounding fee and the service connection was disconnected on 11.9.2009. A provisional assessment order was passed on 11.9.2009 demanding Rs.62,570/-. The petitioner filed his objections on 18.9.2009 and an enquiry was conducted on 24.9.2009. A final assessment order was passed on 30.9.2009, confirming the provisional assessment. The petitioner filed an appeal on 26.11.2009, to the Superintending Engineer, but the same was returned, as he was not the Appellate Authority. Thereafter, the petitioner came up with the above writ petition. Pursuant to an interim order passed on 22.3.2010, the service connection of the petitioner has been restored, after he paid 1/4th of the amount claimed under the final assessment order. But, even in this case, the final assessment order is in a printed format where only blanks have been filled up. Therefore, the impugned order is liable to be set aside, for the same reasons I have indicated in the preceding paragraph.

55. Accordingly, the writ petition is ordered on the following terms:

(a) the final assessment order dated 30.9.2009, impugned in the writ petition, is set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; and

(e) since the petitioner has paid only 1/4th of the amount demanded, he shall pay another 1/4th of the amount demanded within two weeks, failing which, the service connection can be disconnected.

56. The petitioner has an agricultural service connection bearing No.136. But, admittedly, the petitioner is the Correspondent of a Polytechnic by name "Chamber of Commerce Manali Ramakrishnan Polytechnic College". The College is run by a Society registered under the Societies Registration Act. As per the averments in paragraph 5 of the affidavit, the petitioner obtained an agricultural service connection for the purpose of using the same in the agricultural lands of the College. I do not know how an agricultural service connection can be granted to an institution running a college, even if it be for use in their own agricultural land.

57. On 21.12.2009, there was an inspection in which the respondents found that the service connection was used to pump water from a bore well into three small ponds, to enable the water to be discharged into the paddy fields from those ponds. The petitioner paid a sum of Rs.25,000/-, on the same day, out of which Rs.24,000/- represents the compounding fee. Thereafter, a working sheet was given to him determining the compensation payable by him as Rs.1,37,170/-. The service connection was disconnected. The petitioner attended the enquiry on 13.02.2010 and the third respondent, thereafter, passed a final assessment order dated 24.02.2010, demanding Rs.1,37,170/-. Challenging the final assessment order dated 24.02.2010, the petitioner is before this Court.

58. In pursuance of an interim order passed on 24.3.2010, the petitioner has paid Rs.15,000/- and the service connection has been restored. The total amount demanded from the petitioner is Rs.1,37,170/-. According to the learned counsel for the petitioner, the very calculation of the respondents for 210 days is totally misconceived, as crops cannot be irrigated for such a long period of time in a year. The learned counsel also contended that without looking into the depth of the area where water was stored for irrigating the lands, the respondents wrongly decided that they were ponds. According to the petitioner, his lands are irrigated by the sub channels provided by the Public Works Department, as the level of water in the Mettur dam was convertible. Therefore, it is the contention of the petitioner that there was no theft of energy.

59. As in the previous cases, it is seen that the final assessment order has been passed without any application of mind, in a printed form. Therefore, the same order, as passed in the previous cases, should follow even in this case.

60. Accordingly, the writ petition is ordered on the following terms:

(a) the final assessment order dated 24.02.2010, impugned in the writ petition, is set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; and

(e) since the petitioner has paid only Rs.1,000/- (along with the compounding fee of Rs.24,000/- on 21.12.2009) and since the petitioner has also paid Rs.15,000/- in pursuance of the interim order passed, he has made a total payment of Rs.16,000/-, out of the demand amount of Rs.1,37,170/-. Therefore, he shall pay another amount of Rs.43,000/- within two weeks, (so as to make the total amount paid amount to 50% of the demand) failing which, the service connection can be disconnected.

W.P.(MD) Nos.4843 & 4844 of 2010

61. The petitioner has agricultural service connections bearing Nos.55 and 216 and commercial service connection bearing No.516 for fish farming. On 08.3.2010, there was an inspection. It was alleged that the petitioner was utilising the agricultural service connections for commercial purposes, namely, fish farming. A compounding fee of Rs.40,000/- was paid and the supply was disconnected.

62. Thereafter, two provisional assessment orders were issued, one for Rs.1,57,620/- in respect of S.C.No.55 and another for Rs.1,05,080/- in respect of S.C.No.216. The petitioner made a representation dated 30.3.2010 seeking details of assessment and requesting further time to submit his objections. The request was rejected forcing the petitioner to come up with W.P.No.4427 of 2010. But, in the meantime, final assessment orders were passed on 29.3.2010 in respect of both the above service connections, namely, S.C.Nos.55 and 216. Challenging those final assessment orders in respect of two agricultural service connections, the petitioner has come up with W.P.Nos.4843 and 4844 of 2010.

63. On 12.4.2010, this Court granted an interim stay as well as interim direction for restoration of connection, on condition that the petitioner pays 50% of the amount demanded, within two weeks. It is not known whether the condition has been complied with or not. But, just like the other cases, the impugned final assessment orders challenged in these two writ petitions also suffer from the same vice of non application of mind. They are also in printed formats where merely the blanks having been filled up. Therefore, the objections raised by the petitioner have not been considered at all. Hence, the impugned orders are liable to be set aside.

64. Accordingly, the writ petitions are ordered on the following terms:

(a) the final assessment orders dated 29.3.2010, impugned in these writ petitions, are set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; and

(e) the petitioner claims that he had paid Rs.1,53,000/- in respect of one connection and Rs.1,00,000/- in respect of another connection. These amounts constitute more than 50%. But, the Standing Counsel for the respondents is unable to verify and report. If the petitioner has already paid 50% of the amount demanded in the final assessment orders, and his service connections have already been restored, he shall continue to enjoy the same benefit, till final assessment orders are passed. But, if the petitioner has not paid any amount in pursuance of the conditional order of stay granted on 12.4.2010, the restoration of service connection to the petitioner will depend upon his compliance with the conditional order passed on 12.4.2010.

65. The petitioner claims to be the lessee in respect of a shed in which an ice plant is being run. There is a service connection bearing No.B658. It is a low tension service connection. On 24.3.2010, there was an inspection. It was alleged that the meter was tampered with and MRT seal and L&T seal had also been tampered with. A provisional assessment order was served on 29.3.2010 and the petitioner filed his objections on 05.4.2010. A notice of enquiry dated 16.4.2010 was served, calling upon the petitioner to attend an enquiry on 21.4.2010. The petitioner appeared on the said date. Thereafter, the Assessing Officer passed a final assessment order on 04.5.2010 demanding Rs.7,11,140/-. Challenging the final assessment order, the petitioner is before this Court. On 3.6.2010, an interim order was passed directing restoration of connection on condition that the petitioner pays Rs.1,00,000/-.

66. The grievance of the petitioner is that the meter was damaged in a rain and lightening on 27.10.2009 and that the meter was replaced on 21.11.2009. Therefore, it is his case that there could not be an allegation of tampering of the meter. A perusal of the impugned final assessment order shows that paragraph 1 gives the details of the inspection carried out by the Anti Power Theft Squad. Paragraph 2 of the impugned order discloses the findings on inspection. Paragraph 3 simply states that the petitioner's representative participated in the enquiry, filed his objections along with documents and that the objections of the petitioner could not be accepted. In paragraph 4 of the impugned order, the Assessing Officer has fixed the liability at Rs.7,11,140/-. Thus, the impugned assessment order, even in this case, is not in tune with Regulation 23(AA) and hence, it is liable to be set aside.

67. The service connection appears to be still under disconnection. Therefore, the writ petition is disposed of on the following lines:

(a) the final assessment order dated 04.5.2010, impugned in the writ petition, is set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; and

(e) it is not known whether the petitioner paid Rs.1.00 Lakh and got the service connection restored, in pursuance of the interim orders passed on 03.6.2010. Therefore, the petitioner shall pay, within two weeks of receipt of a copy of this order, 50% of the amount indicated in the final assessment order, to enable him to have restoration of connection, if the supply is still under disconnection. But, if the supply has been restored after the petitioner paid Rs.1.00 Lakh, the petitioner shall pay an additional amount, which, together with the amount already paid, would work out to 50% of the total demand, within two weeks of receipt of a copy of this order, to enable him to continue to enjoy the service connection till a final assessment order is passed. However, after a final assessment order is passed, it is open to the respondent to take recourse to Section 135(1A).

68. The petitioner has an agricultural service connection bearing No.362. On 30.12.2009, there was an inspection by the Special Squad. It was alleged that the petitioner was drawing water for a tanker lorry. The petitioner paid compounding fee of Rs.16,000/-. A working sheet was issued to the petitioner fixing the compensation payable as Rs.1,31,385/-. Challenging the working sheet served on him on 30.12.2009 and also seeking restoration of service connection, the petitioner filed W.P.(MD)No.67 of 2010. It was disposed of with the following directions:

"(i) The petitioner is directed to send a reply to the show cause notice dated 04.01.2010 within a period of two weeks from the date of receipt of a copy of this order;

(ii) On receipt of the same, the third respondent is directed to consider and pass appropriate orders on merits and in accordance with law within a period of four weeks thereafter. Till the explanation is considered by the third respondent and final orders are passed thereunder, the respondents shall not recover any amount from the petitioner in connection with the allegations made against the petitioner about the theft of energy.

With the above directions, the writ petition is ordered accordingly."

69. Thereafter, the petitioner submitted his objections to the working sheet and the third respondent passed the impugned order, overruling the objections and demanding the balance of amount of Rs.81,385/-. Challenging the said order dated 15.7.2010, the petitioner is before this Court.

70. Unfortunately, this is also a case where there is neither a provisional assessment order nor a final assessment order in terms of Regulation 23(AA). What was served on the petitioner on 30.12.2009 was only a working sheet and not a provisional assessment order. A provisional assessment order should indicate, apart from the calculations, the right of the petitioner to file objections and to be heard personally. The final assessment order should deal with the objections raised and the documents filed. Neither the working sheet served on 30.12.2009, nor the impugned order dated 15.7.2010, would fall within any of the provisions of Regulation 23(AA). Therefore, the impugned order is liable to be set aside.

71. Accordingly, the writ petition is ordered on the following terms:

(a) the order dated 15.7.2010, impugned in the writ petition, is set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, treating the working sheet as the provisional assessment order and he shall also file documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order;

(e) Since the petitioner has already paid Rs.50,000/- out of the total demand of Rs.1,31,385/-, in pursuance of a conditional interim order, the petitioner shall make an additional payment of Rs.15,000/-, so that the amount paid works out to nearly 50% of the total demand, within two weeks, failing which, the service connection can be disconnected.

72. The petitioner had a service connection bearing No.224, for running an industry. The Electricity Board filed a suit in O.S.No.333 of 2000 on the file of the Principal Sub Court, Dindigul, for recovery of Rs.5,30,322/-. The suit was decreed on 21.6.2006. The decree attained finality. But, the decree amount was not paid. Therefore, the respondents issued a notice dated 30.6.2010, threatening to recover the amount from the residential service connections of the petitioner. Challenging the said demand, the petitioner has come up with the above writ petition.

73. Even as per the affidavit of the petitioner filed in support of the writ petition, the decree debt of Rs.5,30,322/- represents the compensation for the theft of energy allegedly committed by the industry run by the petitioner, in partnership with two other persons. Even according to the petitioner, the decree attained finality and his other partners have gone to Singapore and settled there. It is needless to point out that every partner of a partnership firm is jointly and severally liable to pay the decree passed against a firm. Therefore, the attempt made by the respondents to recover the entire amount from the petitioner cannot be found fault with.

74. The only contention of the petitioner is that the dues of the partnership firm cannot be added to a residential service connection. But, the said contention is not available any more, in view of the fact that under the third proviso to Regulation 27(1) of the Tamil Nadu Electricity Distribution Code, 2004, the respondents can refuse to supply electricity to an intending consumer, who had defaulted payment of dues in respect of any other service connection in his name. Similarly, under Regulation 17(8) of the Tamil Nadu Electricity Supply Code, 2004, the respondents are entitled to disconnect all other service connections standing in the name of the consumer, if he had defaulted in payment of the dues relating to any one of the service connections. This is notwithstanding the fact that all the service connections are covered under separate agreements. Therefore, there are no merits in this writ petition and hence, this writ petition is dismissed.

75. The petitioner is running a Calcium Carbide factory and he has one high tension service connection bearing No.204 and a low tension service connection bearing No.510. There was an inspection of the premises on 11.8.2010 and an allegation of tampering of meter was made in respect of HT SC No.204. A provisional assessment order dated 12.8.2010 was passed demanding payment of a sum of Rs.2,77,40,665/-. After giving a representation dated 17.8.2010, the petitioner came up with a writ petition in W.P.No.11137 of 2010. Though the prayer in the writ petition was for a Mandamus to restore the electricity service connection, the writ petition was disposed of by an order dated 27.8.2010, directing the respondents to consider the representation of the petitioner and to pass appropriate orders. In pursuance of the said order, the Executive Engineer passed an order dated 02.9.2010 confirming the demand made under the provisional assessment order. Challenging the said order, the petitioner has come up with the above writ petition.

76. The petitioner does not appear to have compounded the offences. He has obtained anticipatory bail. The service connection was disconnected on 11.8.2010 and it continues to remain so.

77. Therefore, the petitioner had two options. He could either make payment of the amount as demanded by the respondents, get restoration of supply in terms of Section 135(1A) and allow the respondents to proceed under Regulation 23 (AA) or in the alternative, allow the Special Court to proceed with the prosecution and also determine the civil liability in terms of Section 154(5). Since the petitioner has not chosen to compound, he has to face the prosecution and the determination of civil liability by the Special Court under Section 154. With these observations, this writ petition is dismissed.

78. The petitioner has a service connection bearing No.203/V for a shop run by him. On 26.8.2010, there was an inspection and an allegation of theft of energy was made. The petitioner paid Rs.4,000/- towards compounding fee and a working sheet was served on him, assessing the cost of energy stolen as Rs.78,170/-. Together with tax amount of Rs.1,960/-, the respondent demanded a total sum of Rs.80,130/-.

79. Challenging the working sheet dated 26.8.2010 served on him, the petitioner filed writ petition in W.P.(MD) No.11578 of 2010. The said writ petition was disposed of on 06.9.2010, directing the petitioner to deposit a sum of Rs.20,000/- as a condition for restoration of supply. A further direction was issued to the respondent to conduct an enquiry and to pass appropriate orders, after giving an opportunity of hearing to the petitioner.

80. In accordance with the said order, the petitioner deposited Rs.20,000/- and got the supply restored. An enquiry was conducted and a final order was passed on 20.9.2010, demanding payment of the balance amount of Rs.60,130/-, after confirming the provisional demand earlier made. Challenging the said order dated 20.9.2010, the petitioner is before this Court.

81. At the outset, it is seen that there was no proper provisional assessment order in terms of Regulation 23(AA)(8) of the Supply Code. What was served on 26.8.2010 was only a letter accepting compounding of offences, accompanied by a working sheet. The provisional assessment order under Regulation 23(AA)(8) of the Supply Code is to be in Form No.9. Therefore, I cannot consider that a proper assessment in terms of Regulation 23(AA) had been made in this case. Hence, the impugned order is liable to be set aside and the matter remitted back to the respondent.

82. Accordingly, the writ petition is ordered on the following terms:

(a) the order dated 20.9.2010, impugned in the writ petition, is set aside;

(b) the petitioner shall treat the working sheet as a provisional assessment order and send his objections to the same within 2 weeks of receipt of a copy of this order;

(c) Within 2 weeks thereafter, the assessing officer shall issue a notice fixing a date for personal hearing. On the date fixed for personal hearing, the petitioner shall appear and file the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order;

(e) since the petitioner has already paid Rs.20,000/- out of the total demand of Rs.80,130/-, the petitioner shall make an additional payment of Rs.20,000/-, so that the amount paid works out to nearly 50% of the total demand, within two weeks, failing which, the service connection can be disconnected.

83. The petitioner claims to have taken over a steel rolling mill by name Tower Rolling Mill, together with the plant and machinery and the High Tension service connection bearing No.121, under a lease deed dated 17.10.2009. On 26.11.2010, the Superintending Engineer served a notice on the petitioner as well as his lessor claiming compensation for theft of energy to the tune of Rs.11,95,82,334/-. Contending that proceedings are pending against the lessor before the Special Court under Section 154 and challenging the validity of the demand made on 26.11.2010, the petitioner has come up with the above writ petition.

84. But, this case has a chequered history. A theft of energy was detected by the Anti Power Theft Squad on an inspection conducted on 04.01.2010. A final assessment order was passed on 04.3.2010, demanding Rs.7,55,37,423/-. The service connection was also disconnected on 06.01.2010. There were arrears of even current consumption charges for the period December 2009 and January 2010, apart from minimum monthly charges from February 2010 till July 2010. An amount of Rs.4,41,95,523/- was already determined as due, as per a judgment on tariff concession. Therefore, the petitioner does not have an iota of defence in their favour.

85. As a matter of fact, the petitioner had come up with a writ petition in W.P.No.12737 of 2011. It was dismissed by me by an order dated 19.11.2011. In my order, I have given in a tabular form of the list of criminal cases filed against the persons actually running the show. For the completion of narration, it is necessary to extract the said tabular form even here. Therefore, it is presented as follows:

Sl. No. Name of the concern FIR details Quantum/value of power theft Accused in FIR 1 Sri Radhakrishna Multiple Industries P. Ltd., Door No.30A, SIDCO Industrial Estate, Kappalur, Thirumangalam Taluk, Madurai District. Service No.B-164 FIR No.298/2005 dated 02.03.2005 81,899 Units of value Rs.6 lakhs D.Thillairaj (Director) Seenivasan (Supervisor) 2 Sri Radhakrishna Multiple Industries P.Ltd., Shed Nos.179 and 186, SIDCO Industrial Estate, Kappalur, Thirumangalam Taluk, Madurai District. HT SC No.182 FIR No.516/2006 dated 17.7.2006 12,82,594 units of value Rs.107.09 lakhs D.Thillairaj (Director) I.Ranjithkumar (lessee) 3 Sri Radhakrishna Multiple Industries P.Ltd., Shed Nos.179 and 186, SIDCO Industrial Estate, Kappalur, Thirumangalam Taluk, Madurai District. HT SC No.182 FIR No.49/2007 dated 10.2.2007 9,97,486 units of value Rs.86.26 lakhs D.Thillairaj D.Thangaraj Kanagaraj (Directors) 4 Kumaran Chemicals Pvt.Ltd., North Vanjure, T.R.Pattinam, Karaikal, Union Territory of Pondicherry FIR No.132/2006 dated 8.8.2006 Around 20 lakhs units of value Rs.110 lakhs Management of Kumaran Chemical (P) Ltd.

Kumaran Chemicals Pvt. Ltd., North Vanjure, T.R.Pattinam, Karaikal, Union Territory of Pondicherry FIR No.11232 dated 24.2.2007 Estimated theft of power theft after filing FIR is around Rs.1 Crore value D.Thillairaj (owner), Uma Sankar (Plant In Charge), Selvaraj (Clerk) 6 Vaibhav Corporation No.1, Thatchanenthal Road, Uranganpatti Post, Varichiyur, Madurai Dist.

HT SC No.168 FIR No.557/2006 dated 25.7.2006 65,90,720 units of value Rs.559.26 lakhs D.Thillairaj Partner, T.Mathavi, Partner, K.Sabitha Kanagaraj, Partner, P.Selvam, lessee 7 Vaibhav Corporation No.1, Thatchanenthal Road, Uranganpatti Post, Varichiyur, Madurai Dist.

HT SC No.168 FIR No.309/2008 dated 11.11.2008 48,20,616 units of value Rs.450.87 lakhs D.Thillairaj Partner, T.Mathavi, Partner, K.Sabitha Kanagaraj, Partner 8 Tower Steel Ltd., C-19 to C21, Kappalur, SIDCO Industrial Estate, Thirumangalam HT SC No.112 FIR No.10/2010 dated 04.01.2010 Theft of electricity of value Rs.7,55,37,428/-

D.Thillairaj Partner, D.Thangaraj, Partner, Thangamani (Lessee) Total value of electricity stolen Rs.2174.87 lakhs 9 Vaibhav Corporation No.1, Thatchanenthal Road, Uranganpatti Post, Varichiyur, Madurai Dist.

Theft of Railway property registered in Crime No.24/2008 RPF, Madurai Theft of Railway rails D.Thillairaj Partner, T.Mathavi, Partner, K.Sabitha Kanagaraj, Partner

86. In the above circumstances, there are absolutely no merits in the above writ petition. Hence, it is dismissed.

87. The petitioner has a low tension service connection bearing No.381- 007-924 under Tariff V. Though the petitioner claims to be using the service connection for agricultural/horticultural purposes, it is admitted by him that the service connection was obtained by him under tariff V for commercial use. On 06.3.2010, there was an inspection and an allegation of theft of energy was made. A sum of Rs.80,000/- was paid towards compounding fee and a provisional assessment order demanding a sum of Rs.14,52,054/- was issued and the supply was also disconnected.

88. The provisional assessment order was followed by a final assessment order dated 12.5.2010, confirming the demand of Rs.14,52,054/-. Challenging the final assessment order, the petitioner has come up with the above writ petition.

89. The allegations made against the petitioner is that he resisted even the attempt of the Anti Power Theft Squad to inspect the premises. The meter room was found locked and the watchman did not have a key. When contacted over the mobile phone, the petitioner's accountant came on line and he promised to arrange for an inspection. But, he did not do so. Therefore, a written request was pasted on the door of the meter room on 06.3.2010. Since there was no response, a complaint was given to the Inspector of Police on 07.3.2010 and an inspection was conducted in the presence of the Head Constable and a Village Administrative Officer. At that time, the watchman opened the meter room. It was found that the safety seal over the outer cover of the meter box had been damaged, the MRT safety seals were disrupted and the meter had been tampered.

90. Unfortunately, the petitioner, who admits to have received provisional assessment order, does not claim to have submitted a reply. Therefore, a final assessment order was passed and that too, only after two months on 12.5.2010. Therefore, the petitioner cannot really complain of violation of natural justice.

91. The main contention raised in the writ petition is that it is only the Special Court that is competent under Section 154(5) to determine the civil liability of a consumer against whom an allegation of theft of energy is made. But, I have considered this objection in extenso in the preamble portion of this common order. Admittedly, the petitioner has compounded the offences. Therefore, no proceedings can be initiated or continued before the Special Court, in view of the provisions of Section 152(2) of the Act. Hence, the determination of civil liability also cannot take place in terms of Section 154(5) before the Special Court. In such circumstances, the only method for determining the civil liability is by following the procedure prescribed under Regulation 23(AA). The respondents have taken recourse to this procedure and the same cannot be found fault with.

92. As I have pointed out above, the petitioner has admitted the receipt of the provisional assessment order, in paragraph 4 of the affidavit in support of the writ petition. He has not claimed that he sent any reply. But, the impugned order shows that the petitioner sent some documents on 22.3.2010, by registered post. It is also stated in paragraph 3 of the impugned final assessment order that the representative of the petitioner participated in the oral enquiry. But, unfortunately, the impugned order does not refer to any of the documents sent on 22.3.2010, nor does it refer to the contentions raised by the representative of the petitioner at the time of oral hearing. Therefore, on this short ground, the impugned order is liable to be set aside and the matter is remitted to the respondent.

93. Accordingly, the writ petition is ordered on the following terms:

(a) the order dated 12.5.2010 impugned in the writ petition, is set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; and

(e) since the petitioner has not paid a single penny and the service connection stands disconnected, it is open to him to pay at least 50% of the total amount demanded, to be entitled to reconnection pending passing of a final assessment order.

94. The petitioner has a low tension commercial service connection bearing No.306-013-108. There was an inspection of the premises on 29.01.2011, at the end of which, the Anti Power Theft Squad alleged that the security seal was missing in the meter chamber and that in CT Chamber, a damaged seal was found. The petitioner was made to pay a compounding fee of Rs.1,15,000/-. A provisional assessment order dated 01.02.2011 was passed, followed by a final assessment order dated 21.02.2011. Challenging the said order, the petitioner has come up with the above writ petition.

95. The amount demanded from the petitioner towards compensation charges is Rs.3,51,770/-. The compounding fee of Rs.1,15,000/- has already been paid by the petitioner.

96. But, there are two infirmities about the impugned final assessment order. They are:

(i) As in other cases, it is in a printed form as per Form 10 of the Appendix to the Supply Code. What appears to have been served on the petitioner is only the first page of the final assessment order containing only two paragraphs; and

(ii) For a change, the proceedings of the personal hearing that took place on 19.02.2011 have been furnished to the petitioner. But, the objections raised by the petitioner during the enquiry, are not reflected in the final order.

97. More over, the compounding fee collected from the petitioner is very nearly 1/3rd of the compensation assessed. In all other cases, the compounding fee was far less than the total amount assessed.

98. In pursuance of interim orders passed, it appears that the petitioner already paid a sum of Rs.75,000/- and got the supply restored. Therefore, I am of the view that even in this case, the impugned order is liable to be set aside and the matter is remitted back.

99. Accordingly, the writ petition is ordered on the following terms:

(a) the order dated 21.02.2011, impugned in the writ petition, is set aside;

(b) the respondent shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; while passing orders, the assessing officer shall consider how the quantum of compounding fee is justified in this case when compared to the proportion in which it was levied in other cases;

(e) since the petitioner has already paid Rs.75,000/- out of the total demand of Rs.3,51,770/-, the petitioner shall make an additional payment of Rs.1,00,000/-, so that the amount paid works out to nearly 50% of the total demand, within two weeks, failing which, the service connection can be disconnected.

W.P.No.4027 of 2011 :

100. The petitioner has an industrial service connection bearing H.T.S.C.No.198, with a sanctioned load of 1280 Kva. The petitioner is engaged in sea foods export. On 26.2.2011, the Flying Squad made a surprise inspection and alleged that the petitioner had indulged in theft of energy by tampering the meter. A sum of Rs.64 lakhs was collected by way of compounding fee. A provisional assessment order dated 2.3.2011 was passed demanding a sum of Rs.5,20,02,481/-. The petitioner submitted an explanation, after which, the third respondent passed a final assessment order dated 31.3.2011. Challenging the said final assessment order, the petitioner is before this Court.

101. It appears that immediately after the inspection, the supply was disconnected and the petitioner filed a writ petition in W.P.(MD) No.2675 of 2011 challenging even the provisional assessment order dated 2.3.2011. The said writ petition was disposed of by an order dated 8.3.2011, directing the petitioner to pay a sum of Rs.36 lakhs and further directing the respondents to restore the electricity service connection and to pass the final assessment order thereafter. In pursuance of the said order, the petitioner paid Rs.36 lakhs and got the service connection restored. It is only thereafter that the final assessment order was passed and the present writ petition challenging the final assessment order is the second round of litigation.

102. The third respondent filed a counter affidavit. In the counter affidavit, it is admitted that after the petitioner submitted his objections to the provisional assessment order and after this Court passed orders in the earlier writ petition, an enquiry was held on 11.3.2011. At request of the petitioner, it was postponed to 18.3.2011 and later to 23.3.2011. On 23.3.2011, the petitioner filed xerox copies of the registers. But, in paragraph 19 of the counter, it is admitted by the third respondent that on 23.3.2011, the petitioner failed to cross examine the third respondent. However, he requested further time to submit more documents. Therefore, the enquiry was adjourned to 30.3.2011. A copy of the proceedings of the enquiry held on 30.3.2011 reveals that the representative of the petitioner wanted to cross examine the Flying Squad officials and sought further time on the ground that due to financial year ending, the Managing Director could not be present. But, the Enquiry Officer gave a reply stating that this issue was already answered on 23.3.2011. However, the proceedings of the enquiry dated 23.3.2011 reveal that the Enquiry Officer himself was one of the persons, who signed the inspection mahazar. Therefore, the Enquiry Officer stated on 23.3.2011 that he is prepared to give any answer. But, in so far as the request for cross examination of the members of the Flying Squad is concerned, the Enquiry Officer stated that the request could be examined and the result communicated later. After having said so on 23.3.2011, the Enquiry Officer did not either accept or reject the request on the next day of the enquiry, namely 30.3.2011. On the contrary, he stated on 30.3.2011 that this point was already replied on 23.3.2011 itself.

103. Therefore, it is clear that the stand taken by the respondents in the counter as though an opportunity was given to cross examine the witnesses and that the petitioner did not avail the opportunity is not correct. Moreover, the stand taken in paragraph 19 of the counter is that the Enquiry Officer, namely the third respondent gave an opportunity to the petitioner to cross examine him. But, that may not be a proper opportunity, since an Enquiry Officer cannot also be a witness. Therefore, I am of the view that the impugned order is liable to be set aside and the matter remitted back.

104. Therefore, the writ petition is disposed of on the following lines:

(a) the final assessment order dated 31.3.2011, impugned in the writ petition, is set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; and

(e) Since the petitioner has already made payment of Rs.36 lakhs out of the total demand, he shall make payment of another amount, which, together with the amount earlier paid, would total to 50% of the total amount demanded under the final assessment order. Upon such payment, the respondents shall continue the supply/restore the service connection. Otherwise, the same shall remain disconnected.

WP(MD)No.4906 of 2011 :

105. The petitioner has two service connections bearing Nos.81 and 179, for domestic and commercial uses respectively. The petitioner has also applied for a fresh connection for a tiles unit intended to be started by him. When that application was pending, a surprise inspection was carried out on 14.1.2011. An allegation of theft of energy was made and a provisional assessment of Rs.61,028/- was made by an order dated 14.1.2011. It was followed by a final assessment order dated 9.2.2011 confirming the demand of Rs.61,028/-. The petitioner filed an appeal to the Superintending Engineer, but the same was rejected on 19.3.2011. Thereafter, the petitioner filed the suit in O.S.No.105 of 2011 on the file of the District Munsif Court, Ambasamudhram seeking a declaration that the provisional and final assessment orders were illegal and the suit is pending. In the meantime, the petitioner approached the respondents for restoration of connection. But, the said request was rejected on the ground that the amount demanded under the final assessment order was pending adjudication in the suit. Thereafter, the petitioner has come up with the above writ petition.

106. It appears that in pursuance of an interim order passed on 13.7.2011, the petitioner paid 50% of the amount demanded and got new service connection. The balance is payable. The petitioner has cleverly applied for a fresh service connection and warded off the demand of compensation for theft of energy earlier made by the respondents, by filing a suit. But, in view of Third Proviso to Regulation 27(1) of the Distribution Code, the respondents are entitled to refuse the supply of electricity to an intending consumer, who had defaulted in payment of the dues to the licensee in respect of any other service connection in his name. Therefore, the impugned order dated 8.4.2011 refusing to grant new service connection to the petitioner cannot be taken exception to. The demand of Rs.61,028/- made towards theft of energy is the subject matter of a suit. In this writ petition, the petitioner has not challenged the final assessment order slapped on him. Therefore, I cannot grant any relief to the petitioner in respect of the provisional and final assessment orders, as his prayer in the writ petition is confined only to the refusal of the respondents to grant fresh service connection.

107. Therefore, this writ petition is dismissed, in view of the Third Proviso to Regulation 27(1) of the Code. However, since the petitioner has obtained a service connection by virtue of an interim order by making payment of 50% of the demand, I grant him a time of two weeks from the date of receipt of a copy of this order, to make payment of the balance amount, so as to be eligible to continue to have the benefit of the interim orders passed. If the petitioner fails to make payment of the balance amount within the period stipulated above, it is open to the respondents to disconnect the service connection granted to the petitioner in pursuance of the interim order.

W.P.(MD)Nos.5967 to 5969 of 2011 :

108. The petitioner has three electricity service connections bearing Nos.143-003-015, 143-003-030 and 143-003-032. Admittedly, he has rented out a portion of his house to a third party for running a hotel. The petitioner claims that the hotel has a separate service connection for commercial use bearing No.143-003-077.

109. On 9.5.2011, there was an inspection and the respondent alleged that there was theft of energy. Therefore, all the three domestic connections were disconnected. The provisional assessment orders dated 10.5.2011 were pasted on the outer wall of the premises demanding compensation of Rs.42,974/-, Rs.35,618/- and Rs.46,785/- respectively in respect of three domestic service connections. The petitioner claims to have sent his objections to the provisional assessment orders by way of registered post on 23.5.2011. Thereafter, the final assessment orders dated 28.5.2011 were passed confirming the demands made under the provisional assessment orders. Challenging the three final assessment orders, the petitioner has come up with the above writ petitions.

110. All the three service connections are now under disconnection. No interim order was passed pending writ petitions. Therefore, the amounts assessed under the final assessment orders have also not been paid. It is not known whether compounding has taken place or not.

111. Two positive averments are made in the affidavits in support of the writ petitions. One is that the provisional assessment orders dated 10.5.2011 were only pasted in the residence. The second is that the petitioner sent his objections by registered post on 23.5.2011 and they were received on 24.5.2011 by the respondents.

112. But, the final assessment orders do not indicate whether the provisional assessment orders were actually served or pasted on the wall. The final assessment orders also proceed on the footing that no explanation was received. But, the petitioner has filed copies of acknowledgement cards to show that his objections were received by the respondent on 24.5.2011. Therefore, it is clear that the impugned final orders have been passed without taking note of the objections filed to the provisional assessment orders. Hence, the final assessment orders are liable to be set aside.

113. Accordingly,

(a) all the three writ petitions are allowed, the impugned orders dated 28.5.2011 are set aside and the matters are remitted back to the respondent.

(b) the respondent shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; and

(e) If the petitioner wants restoration of service connections, he shall pay 50% of the amounts demanded as per the final assessment orders. W.P(MD)No.6337 of 2011 :

114. The petitioner has a service connection bearing No.003-307-1604, for running a cottage industry. The tariff applicable is III-A.1. On 5.4.2011, the premises were inspected by the Executive Engineer and it was found that the petitioner was using the service connection (i) for a jewellery shop; (ii) for a jewel manufacturing unit; and (iii) for a hostel in which about 40 labourers stayed. Therefore, a provisional assessment order under Section 126 of the Act was served on the petitioner on 30.4.2011. Since the petitioner did not file any reply, a final assessment order dated 13.5.2011 was passed, demanding a total amount of Rs.9,64,527/-.

115. This writ petition stands on a different footing than the other writ petitions, in view of the fact that there is no allegation of theft of energy.

The respondents did not choose to initiate proceedings under Section 135, but chose to initiate proceedings under Section 126. It appears that the petitioner paid a sum of Rs.3,57,232/- on 26.7.2011, in pursuance of an interim order passed on 17.6.2011. The service connection has been restored. Since the case arises under Section 126, the petitioner also has an alternative remedy of appeal under Section 127 of the Act. But, the limitation for filing an appeal is only 30 days. However, the petitioner has come up with the above writ petition on 16.6.2011.

116. Nevertheless, it is seen from the impugned final assessment order passed under Section 126 of the Act that the Assessing Officer did not give an opportunity of hearing to the petitioner, as required by Section 126(3) of the Act. The provisional assessment order was passed on 30.4.2011. According to the petitioner, he sent a legal notice through his counsel, recording his objections. The legal notice is dated 10.5.2011. But, the final assessment order was passed on 13.5.2011 on the ground that no objections were filed to the provisional assessment order. Under Section 126(3), the second respondent is obliged to afford a reasonable opportunity of hearing to the consumer. This opportunity was not given by the respondents. Moreover, the copy of the Inspection Report dated 13-4-2011 discloses that without retaining any official record, the respondents initiated proceedings. Therefore, the impugned order is liable to be set aside and the matter remitted back.

117. Accordingly, the writ petition is allowed in the following lines :

(a) the final assessment order dated 13.5.2011, impugned in the writ petition, is set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order taking note of the special circumstance that the Inspection report does not disclose any official record;

(e) Since the petitioner deposited a sum of Rs.3,57,232/- and the total amount demanded is Rs.9,64,527/-, the petitioner shall pay a sum of Rs.1,25,032/-, so that the total amount paid by him would work out to 50% of the entire demand, within a period of two weeks from the date of receipt of a copy of this order and the respondents shall allow the petitioner to enjoy the service connection.

Otherwise, the same shall remain disconnected.

W.P.No.8356 of 2011 :

118. The petitioner has a service connection bearing No.322 for a college run by him. But, the service connection was originally granted for agricultural purpose. On 19.2.2011, there was an inspection and an allegation of theft of energy was made. The petitioner's representative paid the compounding fee of Rs.8,000/- and a provisional assessment order was passed on 19.2.2011. The petitioner submitted a reply on 9.3.2011, after which, a final assessment order dated 23.3.2011 was passed demanding a sum of Rs.1,51,530/-. Challenging the said final assessment order, the petitioner is before this Court.

119. It is not the case of the petitioner that the agricultural service connection was officially permitted by the respondents to a different use. Therefore, prima facie, the petitioner cannot escape the allegation of theft of energy.

120. But, the main objection taken by the petitioner is that the college was being run only for a limited period, namely 180 days and not 365 days in a year. In the final assessment order, it has been stated that the petitioner could not produce any proof for the said contention. But, it appears from the impugned final assessment order that a personal hearing was held on 9.3.2011 and the petitioner sought time to furnish the records within seven days. According to a communication issued dated 12.4.2011 issued by the third respondent, the petitioner did not produce any records within the time stipulated. Therefore, I am of the view that one opportunity could be given to the petitioner to substantiate his contention that the college did not work for 365 days. No prejudice will be caused to the respondents, since there was no interim order passed pending disposal of the writ petition. Therefore, the supply does not appear to have been restored. Hence, the writ petition is disposed of on the following lines :

(a) the final assessment order dated 23.3.2011, impugned in the writ petition, is set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; and

(e) If the petitioner wants restoration of the electricity connection, he shall pay 50% of the amount demanded in the final assessment order.

W.P.(MD) No.8955 of 2011 :

121. The petitioner has a low tension service connection bearing No. 916. The petitioner is running a spinning mill in the premises. An inspection by the Anti Power Theft Squad found the use of additional load on 30.7.1998. When a demand was made for a sum of Rs.3,12,896/- for theft of energy, the petitioner rushed to the Civil Court and filed O.S.No.65 of 2004 on the file of the District Munsif-cum-Judicial Magistrate Court, Kamudhi The suit was dismissed and the service connection was disconnected on 22.6.2011. Thereafter, the fourth respondent issued a letter threatening to include the amount of Rs.3,12,896/- in the bill relating to the domestic service connection of the petitioner. Challenging the said order, the petitioner has come up with the above writ petition. Unfortunately, the petitioner has not come up with full particulars.

122. The petitioner has admitted in paragraph 6 of the affidavit that the mill filed a suit in O.S.No.65 of 2004 against the demand earlier made. He has also admitted that the suit was dismissed and the mill has filed an appeal before the Subordinate Court, Paramakudi with a petition to condone the delay. The condone delay petition in I.A.No.154 of 2011 is pending. But, a copy of the judgment of the Civil Court in O.S.No.65 of 2004 is not enclosed and even the date of judgment is not indicated in the affidavit.

123. The petitioner has claimed that the mill also filed another suit in O.S.No.85 of 2002 on the file of the District Munsif-cum-Judicial Magistrate, Kamudhi. The copy of the judgment in that suit is also not enclosed.

124. Be that as it may, the demand made by the respondents against the mill has been upheld by a Civil Court. The mill could not get any interim order in an appeal, since even the delay in filing the appeal is yet to be condoned. Hence, the respondents are right in threatening to include the demand in the domestic service connection. The petitioner is admittedly the Managing Director of the mill. In cases of this nature, especially relating to theft of energy, the lifting of corporate veil is permitted. I have already discussed this issue in extenso in the decision rendered in Vishnuvardhan Paper Mills Limited Vs. TNEB decided on 23.11.2011 in W.P.(MD)No. 12507 of 2011. Therefore, the demand made by the respondents cannot be found fault with. Hence, the writ petition is dismissed.

W.P.(MD) No.12370 of 2011 :

125. The petitioner has a service connection bearing No.668. Admittedly, Tariff V was applied. According to the petitioner, he originally started constructing a house, but changed his plan half way through and started constructing a kalyana mandapam. On 3.5.2011, there was an inspection by the Anti Power Theft Squad. The allegation of theft of energy was made and the petitioner paid Rs.4,000/- towards compounding fee. The service connection was disconnected on 3.5.2011 and the provisional assessment order claiming Rs.1,31,930/- was made. An enquiry was held on 10.5.2011 and a final assessment order was passed on 11.5.2011. According to the petitioner, this final assessment order was not served on him. Therefore, he issued a legal notice, to which the respondents sent a reply. Subsequently, the petitioner applied under the Right to Information Act and obtained a copy of the final assessment order. Thereafter, he has come up with the above writ petition challenging the final assessment order dated 11.5.2011.

126. The respondents have filed a counter affidavit stating that the petitioner originally applied for a temporary connection for the construction of a residential house on 10.7.2006, indicating a total load of 575 watts. The service connection was effected on 18.8.2006. But, the service connection was utilised for the construction of a kalyana mandapam, for which Tariff VI is applicable, as per Tariff Order dated 1.8.2010 issued by the Electricity Regulatory Commission. The respondents found out during inspection that the connected load was 1710 watts. Therefore, a provisional assessment was made followed by the final assessment. It is admitted by the respondents that an enquiry was held on 10.5.2011 and the petitioner did not produce any documents. But, it is also admitted by the respondents in paragraph 7 of the counter that the petitioner produced some receipts on 11.5.2011.

127. However, the final assessment order dated 11.5.2011 does not reflect the consideration of any of the objections filed by the petitioner or the documents filed by him. The impugned order shows total non application of mind. Normally, a temporary service connection is granted for three months, for construction activities. It is renewed from time to time and even as per the counter, the construction was not completed for five years from 2006. Therefore, I do not know how far the allegation of theft of energy could be made out against the petitioner. This case, at the discretion of the respondents, could have fallen under Section 126 rather than under Section 135, in view of the fact that the use of electricity was made only for construction activities. The construction has prolonged for five years and it may be true that over a period of time, there was a change of mind on the part of the petitioner. Section 135 cannot be used to harass persons like the petitioner. All these aspects have not been considered by the respondents, while passing the final assessment order. Therefore, the writ petition is disposed of with the following directions :

(a) the final assessment order dated 11.5.2011, impugned in the writ petition, is set aside;

(b) the respondents shall issue a notice fixing a date for personal hearing within two weeks of a receipt of a copy of this order;

(c) on the date fixed for personal hearing, the petitioner shall appear and file additional objections, if any, along with the documents on which he relies upon;

(d) within two weeks of the date of hearing, the Assessing Officer shall pass a fresh final assessment order; and

(e) If the petitioner makes payment of 50% of the amount demanded under the final assessment order, the respondents shall restore the service connection.

Consequently, connected M.Ps. in all the writ petitions are closed.

SVN/RS/kpl