Madras High Court
V.Swaminathan vs The Superintending Engineer on 9 February, 2018
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.02.2018 DELIVERED ON : 09.02.2018 CORAM THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P(MD)No.113 of 2012 and M.P(MD)No.1 of 2012 V.Swaminathan ... Petitioner Vs. 1.The Superintending Engineer, Thanjavur Electricity Distribution Circle, No.1, Vallam Road, Thanjavur - 7. 2.The Assistant Executive Engineer, Operation and Maintenance, Rural, TANGEDCO, Kumbakonam, Thanjavur District. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the first respondent in his proceedings in Lr.No.SE/TEDC/TJR/AEE/GI/AE/F.Enforcement/D.2261/11, dated 12.09.2011 and quash the same and consequently, direct the first respondent to entertain the appeal filed by the petitioner dated 06.09.2011. !For Petitioner : Mr.T.A.Ebenezer ^For Respondents : Mr.S.Srimathy for Mr.S.M.S.Johnny Basha :ORDER
This writ petition has been filed seeking a writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the first respondent in his proceedings in Lr.No.SE/TEDC/TJR/AEE/GI/ AE/F.Enforcement/D.2261/11, dated 12.09.2011 and quash the same and consequently, direct the first respondent to entertain the appeal filed by the petitioner dated 06.09.2011.
2. Heard the submissions of the learned Counsel for the petitioner as well as the learned Standing Counsel appearing for the respondents.
3. The learned Counsel for the petitioner, drawing the attention of this Court to the typed set of documents, made the following submissions:
3.1. According to the petitioner, he is an agriculturist and is having agricultural electricity service connection in S.C.No.27-003-24.
3.2. The second respondent inspected the land of the petitioner and found that the storage tank constructed by the petitioner is used for fish farming and came to the conclusion that the agricultural service connection has been used for commercial purposes.
3.3. Accordingly, he assessed the loss of electrical energy at Rs.59,500/- (Rupees Fifty Nine Thousand and Five Hundred only) vide order dated 29.08.2011 and collected a sum of Rs.12,000/- (Rupees Twelve Thousand only).
3.4. Aggrieved thereby, the petitioner filed an appeal before the first respondent under Section 127 of the Electricity Act, 2003 on 06.09.2011.
3.5. However, the first respondent vide order dated 12.09.2011, returned the appeal papers stating that no appeal will lie against the theft of energy.
3.6. Reliance has also been placed upon the decision of the Honourable Supreme Court in Southern Electricity Supply Co. of Orissa Ltd., v. Sri Seetaram Rice Mill reported in (2012) 2 Supreme Court Cases 108 and the unreported decision of this Court in N.Mohammed Farook v. Union of India [W.P(MD)No.1715 of 2011, decided on 20.02.2012].
3.7. Hence, the learned Counsel for the petitioner prayed for allowing this writ petition.
4. Whereas the learned Standing Counsel appearing for the respondents, reiterating the averments made in the counter affidavit filed by the respondents, inter alia, contended thus:
4.1. The electricity service connection stood in the name of the petitioner is an agricultural electricity service connection and it is only meant for agricultural purposes.
4.2. During the inspection conducted by the second respondent, it is found that the agricultural service connection obtained by the petitioner has been used for watering the fish pond, which is a commercial activity.
4.3. Hence, a notice under Section 135 of the Electricity Act, 2003 has been issued to the petitioner alleging that the petitioner committed the offence of theft of energy.
4.4. Thereafter, a provisional assessment-cum-notice dated 21.05.2011 was issued directing the petitioner to pay a sum of Rs.59,500/- (Rupees Fifty Nine Thousand and Five Hundred only); whereas the petitioner paid a sum of Rs.19,834/- (Rupees Nineteen Thousand Eight Hundred and Thirty Four only) on 30.05.2011.
4.5. Thus, the respondents passed the final assessment order dated 29.08.2011, in and by which, the petitioner was directed to pay the balance amount of Rs.39,666/- (Rupees Thirty Nine Thousand Six Hundred and Sixty Six only).
4.6. Aggrieved thereby, the petitioner filed an appeal under Section 127 of the Electricity Act, 2003 before the first respondent on 06.09.2011, however, the said appeal was not entertained for the reason that the notice has been issued under Section 135 of the Electricity Act, 2003.
4.7. No appeal would lie under Section 127 of the Electricity Act, 2003 challenging the notice issued under Section 135 of the said Act. 4.8. Therefore, the notice dated 21.12.2011 came to be issued directing the petitioner to pay the balance amount within fifteen days from the date of receipt of the said notice.
4.9. Despite the same, the petitioner paid the said amount to the respondent - Board and hence, prayed for the dismissal of this writ petition.
5. I have carefully considered the rival submissions and perused the materials available on record.
6. Before analysing the issue that arises for consideration before this Court, it is just and proper to examine in detail the relevant provisions of the Electricity Act, 2003, as under:
Section 126:
6.1. Part-XII of the Electricity Act, 2003, deals with Investigation and Enforcement. Sections 126 deals with assessment and the said Section is extracted hereunder:
?Section 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 unauthorized use of electricity, he shall provisionally assess to the best of his judgement 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 unauthorized 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 this section shall be made at a rate equal to twice the tariff rates 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, designated 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 authorized.?
6.2. Section 127 deals with filing of an appeal to the appellate authority, in the event of assessment made under Section 126 of the Act and the said Section reads as follows:
?Section 127. Appeal to Appellate Authority:--- (1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.
(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to 3[half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.
(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.
(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.
(5) No appeal shall lie to the appellate authority referred to in sub- section (1) against the final order made with the consent of the parties.
(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent, per annum compounded every six months.?
6.3. Part XIV speaks about the offences and penalties and Section 135 speaks about theft of electricity, which reads as follows:
?Section 135. (Theft of Electricity):--- (1) Whoever, dishonestly:--
(a) taps, makes or causes to be made any connection with overhead, underground or under water 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,
(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 authorized by the Board or licensee 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.
(1A) 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 authorized 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.
(2) Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may -- (a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is being, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under subsection (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.?
6.4. Section 151 states about the cognizance of offences and it reads as follows:
?Section 151. (Cognizance of offences): No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.
Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.?
7. The Honourable Supreme Court, in Southern Electricity Supply Co., of Orissa Ltd., v. Sri Seetaram Rice Mill reported in 2012 (2) SCC 108, after considering the preamble, statement of objects, legislative history and salient features of the Electricity Act, 2003, explained the difference between Section 126 and 135 of the Electricity Act. The Supreme Court has also explained the objective difference between the aforesaid Sections, the ambit and scope of Section 126, with reference to the construction of words, ?unauthorised use? and ?means?, the effect and impact of change in applicability of tariff upon the power of assessment, in accordance with the provisions of Electricity Act, 2003, and the relevant Regulations, pertaining to the facts and circumstances of the reported case. The facts in nutshell in Sri Seetaram Rice Mill's case (cited supra), are as follows:-
"The Respondent-Industry was categorised as Medium Industry Unit, which deals with the demand of 99 KVA and above but below 110 KVA. On inspection of the business premises of the respondent, the Executive Engineer has noticed as follows: "Dump of the Meter taken. Calibration of meter done and error found within limit. If any abnormality detected in Dump, it will be intimated later on." No further intimation was given to the respondent-Industry, as to the finding of defects, if any, in dump. While issuing the provisional assessment order, intimation was given that there was unauthorized use of electricity, falling squarely within the ambit of provisions of Section 126 of the 2003 Act. The provisional assessment order was made under Section 126(1) of the 2003 Act, for unauthorized use of electricity and the Consumer was required to file objections, if any, and to also pay the amount. The relevant part of the said provisional assessment order reads as under:
"And Whereas you are entitled to file objections against the aforesaid
- provisional assessment order under Section 126(3) of Electricity Act, 2003, within 30 days from receipt hereof and further entitled to appear before the undersigned for an opportunity of being heard on 25.08.2009 during working hours from 11.00 AM to 5.00 PM. And Whereas you are further entitled u/s 126(4) to deposit the aforesaid amount within 7 days and upon such deposit being made within 7 days, you shall not be subject to any further liability or any action by any authority whatsoever. And Whereas if you fail to file the objection within 30 days from receipt hereof, the undersigned shall presume that you have no objection to the provisional assessment and the undersigned shall proceed to pass final order u/s 126(3) on assessment of electricity charges payable by you. And Whereas, if you fail to appear before the undersigned at the aforesaid date and time after filing objections, if any, the undersigned shall proceed to pass the final order under section 126(3), based on the objection filed by you and evidence available on record." The consumer did not file its objections/reply, but challenged the said provisional assessment order and the intimation of unauthorized use, by way of filing a writ petition. The said writ petition was opposed by the Electricity Department. The High Court, while accepting the contention of the respondent-Industry, held that overdrawal of Maximum Demand would not fall under the scope of `unauthorized use of electricity', as defined under the 2003 Act and the appellants-Department had no jurisdiction to issue the intimation in question and pass the assessment order, in terms of Section 126 of the 2003 Act. Testing the same, the Southern Electricity Supply Co., of Orissa Ltd., filed an appeal."
8. It is also relevant to extract hereunder the discussion of the Honourable Supreme Court, on merits, on Question No.1:
"13. On the simple analysis of the facts as pleaded by the parties, it is contended on behalf of the respondent that the provisions of Section 126 of the 2003 Act are not attracted and no liability could be imposed upon them by the authorities in exercise of their power under that provision. Even if the case advanced by the appellants against the respondent without prejudice and for the sake of argument is admitted, even then, at best, the demand could be raised under Regulation 82 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Regulations, 2004 (for short, 'the Regulations'). But recourse to the provisions of Section 126 was impermissible in law. The contention is that the case of a consumer consuming the electricity in excess of maximum and the installed load does not fall within the mischief covered under Section 126 of the 2003 Act. To put it plainly, the argument is that the appellants lack inherent authority to raise such demand with reference to the present case on facts and law both.
14. On the contra, submission on behalf of the appellants is that the case of excessive consumption of power beyond the sanctioned load would be a case falling within the ambit of Section 126 of the 2003 Act. Section 126 of the 2003 Act is incapable of an interpretation which would render the said provision otiose in cases which do not specifically fall under -Section 135 of the 2003 Act.
15. In order to answer these contentions more precisely, we find it appropriate to examine the question framed above, under the following sub- headings:
(a) Interpretation;
(b) Distinction between Sections 126 and 135 of the 2003 Act;
(c) The ambit and scope of Section 126 with reference to the construction of the words `unauthorised use' and 'means'; and
(d) Effect and impact of change in applicability of tariff upon the power of assessment in accordance with the provisions of the 2003 Act and the relevant Regulations in the facts of the case.
16. First and foremost, we have to examine how provisions like Section 126 of the 2003 Act should be construed. From the objects and reasons stated by us in the beginning of this judgment, it is clear that `revenue focus' was one of the principal considerations that weighed with the Legislature while enacting this law. The regulatory regime under the 2003 Act empowers the Commission to frame the tariff, which shall be the very basis for raising a demand upon a consumer, depending upon the category to which such consumer belongs and the purpose for which the power is sanctioned to such consumer. We are not prepared to accept the contention on behalf of the respondent that the provisions of Section 126 of the 2003 Act have to be given a strict and textual construction to the extent that they have to be read exhaustively in absolute terms.
17. This is a legislation which establishes a regulatory regime for the generation and distribution of power, as well as deals with serious fiscal repercussions of this entire regime. In our considered view, the two maxims which should be applied for interpretation of such statutes are ex visceribus actus (construction of the act as a whole) and ut res magis valeat quam pereat (it is better to validate a thing than to invalidate it). It is a settled cannon of interpretative jurisprudence that the statute should be read as a whole. In other words, its different provisions may have to be construed together to make consistent construction of the whole statute relating to the subject matter. A construction which will improve the workability of the statute, to be more effective and purposive, should be preferred to any other interpretation which may lead to undesirable results.
18. It is true that fiscal and penal laws are normally construed strictly but this rule is not free of exceptions. In given situations, this Court may, even in relation to penal statutes, decide that any narrow and pedantic, literal and lexical construction may not be given effect to, as the law would have to be interpreted having regard to the subject matter of the offence and the object that the law seeks to achieve. The provisions of Section 126, read with Section 127 of the 2003 Act, in fact, becomes a code in itself. Right from the initiation of the proceedings by conducting an inspection, to the right to file an appeal before the appellate authority, all matters are squarely covered under these provisions. It specifically provides the method of computation of the amount that a consumer would be liable to pay for excessive consumption of the electricity and for the manner of conducting assessment proceedings. In other words, Section 126 of the 2003 Act has a purpose to achieve, i.e., to put an implied restriction on such unauthorized consumption of electricity."
9. After referring to many decisions, as to how, a statute should be interpreted, the Honourable Supreme Court, at Paragraphs 22 and 23, held as follows:
"22. The relevancy of objects and reasons for enacting an Act is a relevant consideration for the court while applying various principles of interpretation of statutes. Normally, the court would not go behind these objects and reasons of the Act. The discussion of a Standing Committee to a Bill may not be a very appropriate precept for tracing the legislative intent but in given circumstances, it may be of some use to notice some discussion on the legislative intent that is reflected in the -substantive provisions of the Act itself. The Standing Committee on Energy, 2001, in its discussion said, `the Committee feel that there is a need to provide safeguards to check the misuse of these powers by unscrupulous elements'. The provisions of Section 126 of the 2003 Act are selfexplanatory, they are intended to cover situations other than the situations specifically covered under Section 135 of the 2003 Act. This would further be a reason for this Court to adopt an interpretation which would help in attaining the legislative intent.
23. By applying these principles to the provisions of this case requiring judicial interpretation, we find no difficulty in stating that the provisions of Section 126 of the 2003 Act should be read with other provisions, the regulations in force and they should be so interpreted as to achieve the aim of workability of the enactment as a whole while giving it a purposive interpretation in preference to textual interpretation."
10. While considering the distinction between 126 and 135 of the Electricity Act, 2003, at Paragraphs 24 to 30, the Honourable Supreme Court, held as follows:
"24. Upon their plain reading, the mark differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. We have already noticed that Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act.
25. Section 135 of the 2003 Act falls under Part XIV relating to `offences and penalties' and title of the Section is 'theft of electricity'. The Section opens with the words 'whoever, dishonestly' does any or all of the acts specified under clauses (a) to (e) of Sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, Sub-section (1A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer of rank authorized in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under Sub-sections (2) to (4) of the said Section. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted.
26. In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression 'unauthorized use of electricity'. This assessment/proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in an 'authorized use of electricity'. Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act.
27. The officer is also under obligation to serve a notice in terms of Section 126(3) of the 2003 Act upon any such consumer requiring him to file his objections, if any, against the provisional assessment before a final order of assessment is passed within thirty days from the date of service of such order of provisional assessment. Thereafter, any person served with the order of provisional assessment may accept such assessment and deposit the amount with the licensee within seven days of service of such provisional assessment order upon him or prefer an appeal against the resultant final order under Section 127 of the 2003 Act. The order of assessment under Section 126 and the period for which such order would be passed has to be in terms of Subsections (5) and (6) of Section 126 of the 2003 Act. The Explanation to Section 126 is of some significance, which we shall deal with shortly hereinafter. Section 126 of the 2003 Act falls under Chapter XII and relates to investigation and enforcement and empowers the assessing officer to pass an order of assessment.
28. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of Criminal Jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. It does not have features or elements which are traceable to the criminal concept of mens rea.
29. Thus, it would be clear that the expression 'unauthorized use of electricity' under Section 126 of the 2003 Act deals with cases of unauthorized use, even in absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorization, like providing for a direct connection bypassing the installed meter.
30. Therefore, there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases of unauthorized use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorized use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act."
11. Further, while considering the acts enumerated under Section 135 of the Electricity Act, 2003, with reference to the word "dishonestly" occurring at the commencement of Section 135 of 2003 Act and the dictionary meaning of the word "dishonest", at Paragraph 35, the Honourable Supreme Court, held as follows:
"35. All these explanations clearly show that dishonesty is a state of mind where a person does an act with an intent to deceive the other, acts fraudulently and with a deceptive mind, to cause wrongful loss to the other. The act has to be of the type stated under Sub-sections (1)(a) to (1)(e) of Section 135 of the 2003 Act. If these acts are committed and that state of mind, mens rea, exists, the person shall be liable to punishment and payment of penalty as contemplated under the provisions of the 2003 Act. In contradistinction to this, the intention is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the 2003 Act."
12. With regard to the ambit and scope of Section 126, with reference to the words, "unauthorised use" and "means", at Paragraphs 37 to 41, the Supreme Court, held as follows:
"37. Wherever the assessing officer arrives at the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if such period cannot be ascertained, it shall be limited to a period of 12 months immediately preceding the date of inspection and the assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of service specified under these provisions. This computation has to be taken in terms of Sections 126(5), 126(6) and 127 of the 2003 Act. The complete procedure is provided under these sections. Right from the initiation of the proceedings till preferring of an appeal against the final order of assessment and termination thereof, as such, it is a complete code in itself.
38. We have already indicated that the provisions of Section 126 do not attract the principles of Criminal Jurisprudence including mens rea. These provisions primarily relate to unauthorized use of electricity and the charges which would be payable in terms thereof. To determine the controversy in the present case, it will be essential to examine the implication of the expression 'unauthorised use of electricity' as contained in Explanation (b) of Section 126 of the 2003 Act.
39. In order to explain these expressions, it will be necessary for us to refer to certain other provisions and the Regulations as well. These expressions have to be understood and given meaning with reference to their background and are incapable of being fairly understood, if examined in isolation. It is always appropriate to examine the words of a statute in their correct perspective and with reference to relevant statutory provisions. The expression `unauthorized use of electricity' on its plain reading means use of electricity in a manner not authorized by the licensee of the Board. 'Authorization' refers to the permission of the licensee to use of electricity', subject to the terms and conditions for such use and the law governing the subject.
40. To put it more aptly, the supply of electricity to a consumer is always subject to the provisions of the 2003 Act, State Acts, Regulations framed thereunder and the terms and conditions of supply in the form of a contract or otherwise. Generally, when electricity is consumed in violation of any or all of these, it would be understood as `unauthorized use of electricity'. But this general view will have to be examined in the light of the fact that the legislature has opted to explain this term for the purposes of Section 126 of the 2003 Act.....
41. The 'unauthorized use of electricity' means the usage of electricity by the means and for the reasons stated in sub-clauses (i) to (v) of clause (b) of Explanation to Section 126 of the 2003 Act. Some of the illustratively stated circumstances of `unauthorised use' in the section cannot be construed as exhaustive. The `unauthorized use of electricity' would mean what is stated under that Explanation, as well as such other unauthorized user, which is squarely in violation of the above-mentioned statutory or contractual provisions."
13. After referring to the dictionary meaning of the word, "unauthorised" and considering the decision of the Apex Court in M.C.Mehta v. Union of India reported in 2006 (3) SCC 399, at Paragraphs 44 to 52, the Supreme Court, held as follows:
"44. The unauthorized use of electricity in the manner as is undisputed on record clearly brings the respondent 'under liability and in blame' within the ambit and scope of Section 126 of the 2003 Act. The blame is in relation to excess load while the liability is to pay on a different tariff for the period prescribed in law and in terms of an order of assessment passed by the assessing officer by the powers vested in him under the provisions of Section 126 of the 2003 Act.
45. The expression `means' used in the definition clause of Section 126 of the 2003 Act can have different connotations depending on the context in which such expression is used. In terms of Black's Law Dictionary (Eighth Edition) page 1001, `mean' is - 'of or relating to an intermediate point between two points or extremes' and 'meaning' would be `the sense of anything, but esp. of words; that which is conveyed'. The word ordinarily includes a mistaken but reasonable understanding of a communication. `Means' by itself is a restrictive term and when used with the word `includes', it is construed as exhaustive. In those circumstances, a definition using the term 'means' is a statement of literal connotation of a term and the courts have interpreted `means and includes' as an expression defining the section exhaustively. It is to be kept in -mind that while determining whether a provision is exhaustive or merely illustrative, this will have to depend upon the language of the Section, scheme of the Act, the object of the Legislature and its intent.
46. 'Purposive construction' is certainly a cardinal principle of interpretation. Equally true is that no rule of interpretation should either be over-stated or overextended. Without being over-extended or over-stated, this rule of interpretation can be applied to the present case. It points to the conclusion that an interpretation which would attain the object and purpose of the Act has to be given precedence over any other interpretation which may not further the cause of the statute. The development of law is particularly liberated both from literal and blinkered interpretation, though to a limited extent.
47. The precepts of interpretation of contractual documents have also undergone a wide ranged variation in the recent times. The result has been subject to one important exception to assimilate the way in which such documents are interpreted by judges on the common sense principle by which any serious utterance would be interpreted by ordinary life. In other -words, the common sense view relating to the implication and impact of provisions is the relevant consideration for interpreting a term of document so as to achieve temporal proximity of the end result.
48. Another similar rule is the rule of practical interpretation. This test can be effectuatedly applied to the provisions of a statute of the present kind. It must be understood that an interpretation which upon application of the provisions at the ground reality, would frustrate the very law should not be accepted against the common sense view which will further such application.
49. Once the court decides that it has to take a purposive construction as opposed to textual construction, then the legislative purpose sought to be achieved by such an interpretation has to be kept in mind. We have already indicated that keeping in view the legislative scheme and the provisions of the 2003 Act, it will be appropriate to adopt the approach of purposive construction on the facts of this case. We have also indicated above that the provisions of Section 126 of the 2003 Act are intended to cover the cases over and above the cases which would be specifically covered under the provisions of Section 135 of the 2003 Act. 50. In other words, the purpose sought to be achieved is to ensure stoppage of misuse/unauthorized use of the electricity as well as to ensure prevention of revenue loss. It is in this background that the scope of the expression `means' has to be construed. If we hold that the expression `means' is exhaustive and cases of unauthorized use of electricity are restricted to the ones stated under Explanation (b) of Section 126 alone, then it shall defeat the very purpose of the 2003 Act, inasmuch as the different cases of breach of the terms and conditions of the contract of supply, regulations and the provisions of the 2003 Act would escape the liability sought to be imposed upon them by the Legislature under the provisions of Section 126 of the 2003 Act. Thus, it will not be appropriate for the courts to adopt such an approach.
51. The primary object of the expression `means' is intended to explain the term `unauthorized use of electricity' which, even from the plain reading of the provisions of the 2003 Act or on a common sense view cannot be restricted to the examples given in the Explanation. The Legislature has intentionally omitted to use the word `includes' and has only used the word `means' with an intention to explain inter alia what an unauthorized use of electricity would be. It must be noticed that clause (iv) of Explanation (b) and sub-Section (5) of Section 126 of the 2003 Act were both amended/ substituted by the same amending Act 26 of 2007, with a purpose and object of preventing unauthorised use of electricity not amounting to theft of electricity within the meaning of Section 135 of the 2003 Act. This amendment, therefore, has to be given its due meaning which will fit into the scheme of the 2003 Act and would achieve its object and purpose.
52. The expression `means' would not always be open to such a strict construction that the terms mentioned in a definition clause under such expression would have to be inevitably treated as being exhaustive. There can be a large number of cases and examples where even the expression `means' can be construed liberally and treated to be inclusive but not completely exhaustive of the scope of the definition, of course, depending upon the facts of a given case and the provisions governing that law."
14. After considering K.V.Muthu v. Angamuthu Ammal reported in 1997 (2) SCC 53 and Union of India v. Prabhakaran Vijaya Kumar reported in 2008 (9) SCC 527, at Paragraphs 58, 60 to 62, the Honourable Supreme Court explained the word "means", as follows:
"58. The above judgments clearly support the view that we have taken with reference to the facts and law of the present case. It cannot be stated as an absolute proposition of law that the expression `means' wherever occurring in a provision would inevitably render that provision exhaustive and limited. This rule of interpretation is not without exceptions as there could be statutory provisions whose interpretation demands somewhat liberal construction and require inclusive construction. An approach or an interpretation which will destroy the very purpose and object of the enacted law has to be avoided. The other expressions used by the Legislature in various sub-clauses of Explanation (b) of Section 126 of the 2003 Act are also indicative of its intent to make this provision wider and of greater application. Expressions like `any artificial means', `by a means not authorised by the licensee' etc. are terms which cannot be exhaustive even linguistically and are likely to take within their ambit what is not specifically stated. For example, `any artificial means' is a generic term and so the expression `means' would have to be construed generally.
60. The expressions `means', `means and includes' and `does not include' are expressions of different connotation and significance. When the Legislature has used a particular expression out of these three, it must be given its plain meaning while even keeping in mind that the use of other two expressions has not been favoured by the Legislature. To put it simply, the Legislature has favoured non-use of such-expression as opposed to other specific expression. In the present case, the Explanation to Section 126 has used the word `means' in contradistinction to `does not include' and/or `means and includes'. This would lead to one obvious result that even the Legislature did not intend to completely restrict or limit the scope of this provision.
61. Unauthorised use of electricity cannot be restricted to the stated clauses under the explanation but has to be given a wider meaning so as to cover cases of violation of terms and conditions of supply and the regulations and provisions of the 2003 Act governing such supply. `Unauthorised use of electricity' itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the explanation. It is indisputable that the electricity supply to a consumer is restricted and controlled by the terms and conditions of supply, the regulations framed and the provisions of the 2003 Act.
62. The requirement of grant of licence itself suggests that electricity is a controlled commodity and is to be regulated by the regulatory authorities. If a person unauthorisedly consumes electricity, then he can certainly be dealt with in accordance with law and penalties may be imposed upon him as contemplated under the contractual, regulatory and statutory regime. The Orissa Electricity Regulatory Commission, in exercise of its powers under Section 181(2)(t), (v), (w) and (x) read with Part VI of the 2003 Act, Orissa Electricity Reforms Act, 1995 and all other powers enabling it in that behalf, made the regulations to govern distribution and supply of electricity and procedure thereof such as system of billing, modality of payment, the powers, functions and applications of the distribution licensees form for supply and/or suppliers and the rights and obligations of the consumers. These were called `Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004 (hereinafter referred to as `Conditions of Supply) vide notification dated 21st May, 2004."
15. The word ?dishonestly? defined in Section 24 of the Indian Penal Code, states that, ?Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss of another person, is said to do that thing dishonestly?. Collins English Dictionary explains the word `dishonest' as `not honest or fair; deceiving or fraudulent'. Black's Law Dictionary (Eighth Edition) explains the expression `dishonest act' as a fraudulent act, `fraudulent act' being a conduct involving bad faith, dishonesty, a lack of integrity or moral turpitude.
16. In Dr.S.Dutt v. State of Uttar Pradesh reported in AIR 1966 SC 523 = (1966) 1 SCR 493, the Supreme Court has coined the word, ?dishonestly? as a person, who does anything with the intention of causing wrongful gain to one person or wrongful loss to another person. In yet another decision made in Ramratan v. State of Bihar reported in AIR 1965 SC 926, the Supreme Court observed as follows:
?A person is said to do a thing dishonestly when he does anything with the intention of causing wrongful gain to one person or wrongful loss to another person. In the case of illegal seizures and impounding of cattle, the person seizing the cattle does not gain anything. He simply takes the cattle to the pound. He does not use them for his purpose.?
17. As per the procedure prescribed under Section 126 of the Electricity Act, the authority, who inspects the equipments, gadgets, machines, after inspection of any meter, maintained by any person, comes to the conclusion that such person was indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.
18. As per sub-Sections 2 to 5 of Section 126 of the Act, 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. 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. 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. If the assessing officer reaches a conclusion that unauthorised use of electricity had taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity had taken place and if, however, the period during which such unauthorised use of electricity had taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. Sub-Section (6) of Section 126 of the Act, 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).
19. A procedure is also contemplated in the case of theft, falling under any of the acts, enumerated under Section 135(1)(a) to (e) of the Act. But the said Section speaks about fine, which is as follows:
?(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.?
20. Section 135 of the Act also empowers the licencee, to immediately disconnect the supply of electricity, upon detection of such theft of electricity, which reads as follows:
"Provided that only such officer of the licensee or supplier, as authorized 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."
21. It is the main contention of the petitioner that he had already paid a sum of Rs.12,000/- (Rupees Twelve Thousand only) towards compounding fee under the threat of disconnection and further that the appellate authority ought to have primarily decided as to whether the act of the petitioner would amount to theft of energy or not and without following the procedures as contemplated under the Electricity Act, 2003, the appeal filed by him under Section 127 of the Electricity Act, 2003, was rejected, however, without affording any opportunity of hearing to him before passing the impugned order and hence, prays for quashing the same.
22. In similar circumstances, this Court, in Fiem Industries Ltd. (Unit III) rep. by its Deputy General Manager - H.R & Admn., Mr.K.A.Manikandan v. The Superintending Engineer, TANGEDCO, Krishnagiri Electricity Distribution Circle, Dharmapuri and others [W.P.No.25849 of 2013, decided on 25.11.2013], while elaborately dealing with the provisions of the Electricity Act, 2003, has observed at paragraphs 56 to 66, as follows:
"56. When compounding of an offence is made under protest by the consumer, it could be argued that the consumer is not agreeable to any provisional conclusion of theft. But the question is whether the compounding of an offence can be made, under protest. In terms of the Hon'ble Division Bench judgment in Sri. Kamatchi Theatre's case (cited supra), compounding is an admission of guilt, which leads to an order, granting permission to compound, under Section 152 of the Electricity Act, 2003, which is deemed to be an acquittal, under the said Section. But at the same time, one can visualize the situation, at the time of inspection, where the consumer faces the threat of disconnection, on the conclusion of theft by the authority and he may be constrained to take a decision immediately.
57. The assessing officer arrives at a prima facie conclusion of theft, on the basis of evidence, recorded at the time of inspection, and at that time, the consumer can come forward to accept the guilt of offence by compounding the offence, under Section 152 of the Electricity Act and thereby, avoid prosecution before the Criminal Court. Once the consumer decides to compound the offence, there is no question of contending that the compounding of the offence was under protest, because compounding under protest is not recognised in law. An offence cannot be permitted to be compounded under protest. If the consumer protests, then it is for the authorised officer to record such protest and lodge a complaint to the police station, having jurisdiction. If the consumer accepts the guilt of offence unequivocally, by compounding, the consumer can avoid prosecution. When there is payment of compounding fee, under protest, law does not restrict the powers of the authorised officer to launch prosecution. In a given case, to avoid prosecution, the consumer may come forward to remit the compounding fee, under protest and there is always a possibility to avoid fine, or imprisonment on conviction, by the Court of competent criminal jurisdiction.
58. Reading of the provisions, stated supra, makes it clear that there could be two simultaneous proceedings, one for the commission of theft of energy under Section 135 of the Act and the other, for assessment of loss to the licencee. Section 135 of the 2003 Act deals with an offence of theft of electricity, for which, appropriate fine or sentence on conviction, is contemplated. This squarely falls within the dimensions of Criminal Jurisprudence and mens rea is the relevant factor for rendering a finding on theft. On the contrary, Section 126 of the 2003 Act read with Regulation 19 of the Tamil Nadu Electricity Supply Code, does not speak of any criminal intent. The assessment made is applicable under Section 127 of the Act. Whereas, in the case of theft, though there is an assessment, as per the procedure contained in Regulation 23-AA of the above said Code and as provided for, in Forms 8 and 9 of Appendix to the Supply Code, there is no appeal. If the consumer has come forward to compound the offence of theft, there can be no appeal, on the finding of the Inspecting Officer, regarding theft, but if the authorised officer, while computing the loss of revenue to the licencee, commits an error in computation of the loss of assessment, should the consumer be left without any remedy, excepting to approaching the High Court, under Article 226 of the Constitution of India, is the question to be decided.
59. Inasmuch as theft of energy is punishable with variable amounts of fine or imprisonment or both on conviction, depending upon the number of times, the offence has been committed, by the consumer, there is possibility of such consumer, escaping the clutches of law, by simply compounding the offence. Therefore, if there is a case of compounding under protest, in my humble opinion, the authorised officer has to launch prosecution, at once.
60. The legislative intention behind the usage of the words, "conviction" and "fine" in Section 135 of the Electricity Act, 2003, makes it clear that when there is a case of theft, the authorised officer, can permit the consumer to compound the offence and apart from that, has to make an assessment of loss of revenue to the licencee and while doing so, has to follow the procedure and the method in arriving at the loss, as stated supra.
61. It could be deduced from the reading of the provisions, the matter pertains to the assessment of loss to the supplier or licencee, is quasi- judicial, whereas, the aspect of punishing the consumer, for an offence, under Section 135 of the Act, is judicial. The authorised officer is not empowered to convict the consumer for theft, but he has power to accept the compounding by the consumer, as per Section 152 of the Electricity Act, 2003, which states that, notwithstanding anything contained in the Code of Criminal Procedure 1973, the appropriate Government or any officer authorized 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 given in the Table thereunder. Both under Sections 126 and 135 of the Electricity Act, 2003, while making an assessment of loss, the function of the assessing officer is quasi-judicial. When the consumer is given a right of appeal against the final assessment order under Section 126 of the Act, then if such quasi-judicial authority, under Section 135 of the Electricity Act, on his own motion, arrives at a provisional conclusion of theft of electrical energy and proceed to make an assessment, as per Regulation 23-AA of the Supply Code, 2004, the consumer should equally be provided with an opportunity of challenging the assessment made by the quasi- judicial authority. If there is a case of compounding, then the Consumer should not be permitted to canvass on the correctness of the finding of guilt or on the ground that he was compelled to compound under protest. Once option is exercised by the consumer to compound the offence, there is no question of retracting the same.
62. It is well settled that judicial review under Article 226 of the Constitution of India, is circumscribed only to the decision making process and not the decision, arrived at on the basis of some evidence, based on the principles of preponderance of probability and the findings, cannot be re- appreciated and substituted by this Court, more so, when there is admission of theft. If the contentions of the respondents, particularly, the Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Krishnagiri Electricity Distribution Circle, Dharmapuri, 1st respondent, to the effect that no appeal remedy is available under the Statute to the consumer, enabling the aggrieved person to challenge the assessment, then the High Court under Article 226 of the Constitution of India, would be burdened with the writ petitions, arising out of any order, passed by the assessing officer, either provisional or final, as the case may be.
63. Electricity Act, 2003 confers powers on the Tamil Nadu Electricity Regulatory Commission to frame regulations. Accordingly, Regulation 23-AA has been framed by the Tamil Nadu Electricity Regulatory Commission, Chennai, devising a procedure for passing a provisional assessment order and after affording an opportunity of hearing to the consumer, to pass a final assessment order, even in the case of theft. In the case of compounding of an offence, punishable under Section 135(1)(a) to (e) of the Electricity Act, 2003, the Special Court, in exercise of powers under Section 153, is also empowered to determine the civil liability, on the consumer. The terms on which the Special Court determines the civil liability on the consumer is almost the same, as contained in Regulation 23-AA of the Code. As per sub- Clauses 5 and 6 of Section 153 of the Act, civil liability that could be determined by the Special Court and they are as follows:
"(5) In cases of theft by direct tapping from the licensee's lines, cables or electrical plant of the licensee, if the accused person unauthorizedly connects or reconnects any meter of the licensee in a disconnected service, then electric supply to such premises or place shall be disconnected forthwith by the licensee concerned. The licensee concerned may subsequently remove or divert or convert his line, cable or electrical plant to prevent further theft of electricity provided that such action shall not result in any inconvenience in affording quality supply or disruption of supply, to other consumers.
(6) The authorized officer and any other officer of the licensee concerned who accompanied the authorized officer shall sign the inspection report in all the above cases and obtain signatures of the accused person or his representative and the same must be handed over to the accused person or his representative at site immediately under proper receipt. In case of refusal by the accused person either to sign or accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in or outside the premises and a note recorded on the office copy of the inspection report to the effect that the copy of the report has been pasted at the conspicuous place of the premises. A copy of the report shall be subsequently sent to the accused person of the premises under registered post within three days of inspection."
64. Insofar as the determination of the civil liability by the Special Court, is concerned, or for the matter, imposition of appropriate fine or imprisonment, as the case may be, depending upon the repetition of the offence, the person aggrieved over the determination of the civil liability or fine or imprisonment or both, as the case may be, is given a right to challenge the same before the Court of competent jurisdiction under the provisions of the Code of Criminal Procedure. There may be instances, where the assessing officer or the Special Court, as the case may be, commit an error in the manner of assessment or determination of civil liability. Evidence adduced, on behalf of the consumer, would not have been considered in proper perspective or overlooked, resulting in miscarriage of justice. In such an event, when the aggrieved consumer, is at liberty to challenge the civil liability, determined by the Special Court, before the High Court, then the consumer, who has avoided prosecution, by compounding the offence, paid the compounding fee, should also be permitted to test the correctness of the manner of computation of the civil liability, when such civil liability is fastened on the consumer by the assessing officer. As such, there is no provision in the Electricity Act, 2003 or Supply Code framed by the Regulatory Authority, to question the manner of computation of civil liability or in other words, the final assessment order. As observed earlier, assessment of the civil liability or loss caused to the licencee, is made after considering the objections of the consumers and evidence, if any, adduced. The material evidence adduced by the department is also relevant at the time of assessment.
65. Writ jurisdiction does not ordinarily deal with the questions of fact and more particularly, when a finding is recorded by the Original Authority. Judicial review is restricted to the decision making process or the challenges to perversity, violation of principles of natural justice or lack of jurisdiction. If there is an error or illegality committed by the authority in the method, while arriving at the assessment or for any of the reasons, stated supra, there should be a forum constituted under the Act or the Supply Code, to challenge the assessment. But as stated supra, the consumer, having compounded the offence, should not be permitted to challenge, the aspect of his act of compounding. Apparently, there is no such forum constituted under the Act or in the Regulations framed under Regulation 23-AA of the Tamil Nadu Electricity Supply Code, 2004. There is causus ommisus in the Statute as well as in the Supply Code. Therefore, this Court is inclined to suggest to the Court of Tamil Nadu Energy Department, Chennai, or the Tamil Nadu Regulatory Commission to make a provision, constituting an authority, before whom, the final assessment made under Section 135 of the Act, can also be tested.
66. In the light of the above discussion, as compounding under protest is not acceptable, the respondents are at liberty to proceed further in accordance with law. However, this Court is inclined to direct the respondents to initiate proceedings, as contemplated under Regulation 23-AA of the Tamil Nadu Electricity Supply Code, 2004, pursuant to the proceedings of the 3rd respondent, dated 25.09.2012 and 26.09.2012 and pass orders, after affording opportunity to the petitioner, within a period of two months, from the date of receipt of a copy of this order."
23. Keeping in mind the aforesaid decision of this Court and on a careful scrutiny of the materials placed before this Court and also in the light of the aforesaid discussions, this Court is of the considered opinion that whether the act of the petitioner would amount to "theft of energy" or not, cannot be adjudicated by this Court in exercise of the powers under Article 226 of the Constitution of India and it is for the appellate authority to look into the same and pass a reasoned order either to entertain or reject the appeal preferred by the petitioner, but the impugned order has been passed by the first respondent by merely stating that the appeal is not maintainable without affording any opportunity of hearing to the petitioner and thus, on that ground alone, the impugned order warrants interference.
24. Accordingly, the impugned order passed by the first respondent in his proceedings in Lr.No.SE/TEDC/TJR/AEE/GI/AE/F.Enforcement/D.2261/11, dated 12.09.2011, is quashed and the matter is remitted to the first respondent for fresh consideration. On such remand, the first respondent shall consider the claim of the petitioner in the light of the provisions of the Electricity Act, 2003 and pass appropriate orders on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner, within a period of twelve weeks from the date of receipt of a copy of this order.
25. In fine, this writ petition is allowed to the extent indicated above. No costs. Consequently, the connected miscellaneous petition is closed.
To:
1.The Superintending Engineer, Thanjavur Electricity Distribution Circle, No.1, Vallam Road, Thanjavur - 7.
2.The Assistant Executive Engineer, Operation and Maintenance, Rural, TANGEDCO, Kumbakonam, Thanjavur District.
.