Madras High Court
Chinnammal vs The Assistant Executive Engineer on 18 July, 2014
Author: B.Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.07.2014
Coram
The Honourable Mr.Justice B.RAJENDRAN
W.P. No.14689 of 2014
and
M.P.Nos.1 & 2 of 2014
Chinnammal .. Petitioner
vs.
1. The Assistant Executive Engineer
(O & M), Tamil Nadu Generation
and Distribution Corporation
(TANGEDCO), Ariyalur 621 704.
2. The Assistant Engineer (O & M)
Tamil Nadu Generation and
Distribution Corporation
(TANGEDCO), Thelur
Ariyalur Taluk & District. .. Respondents
Writ 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 in Letter No.AEE/O & M/AYR/CI/Enforcement/D.No.042/1415 dated 08.05.2014 of the first respondent; to quash the same and to direct the respondents to restore the service connection in SC No.288 of Muniankurichi Distribution, Ariyalur Taluk, Ariyalur District.
For Petitioner : Mr.S.Kamadevan
For Respondents : Mr.P.Gunaraj
O R D E R
The prayer in the writ petition is for the issuance of a writ of certiorarified mandamus to call for the records in Letter No. AEE/O&M/AYR/CI/Enforcement/D.No.042/1415 dated 8.5.2014 of the first respondent; to quash the same and to direct the respondents to restore the service connection in SC No.288 of Muniankurichi Distribution, Ariyalur Taluk, Ariyalur District.
2. The case of the petitioner is that she owns a land in Survey No.235/3 in Reddipalayam Village and is having electricity connection in SC No.288. According to the petitioner, it is a free agricultural service connection and the same is meant for agricultural operations. According to the petitioner, the adjacent land owner developed layouts for residential plots and for that they filled water in their tank by using her free electricity service connection. While so, when a sudden inspection was conducted by the officials of the Electricity Department on 18.11.2010, it was alleged that there was a theft of energy by the petitioner and accordingly assessment proceedings were passed as contemplated under Section 135 of the Indian Electricity Act, 2003 ['The Act' for short] .
3. The grievance of the petitioner is that the authorities cannot construe the action of the petitioner as theft of energy but it is only a misuse by a third party and her case will fall only under Section 126 of the Act and not the one under Section 135 of the Act. According to the petitioner, to satisfy the penal action for the theft of electricity, there should be allegations followed by a finding that there was an unauthorized abstraction of energy with dishonest intention. According to the petitioner, the impugned final assessment order passed under Section 135 of the Act is bad in law. Hence, the petitioner has come forward with the present writ petition seeking to quash the same.
4. Learned counsel for the petitioner would submit that in similar such situation, the Board has issued a circular dated 16.05.2005 and it is made clear in that, that even if an unmetered agricultural service connection is unauthorizedly used for other purposes, the same cannot be treated as theft of energy and action may be taken against such person only as per Section 126 of the Act and assessment made, without initiating any criminal action. However, this fact was not considered by the authorities before passing the impugned order. He would also bring to the notice of this Court, the judgment rendered by Three Judge Bench of the Hon'ble Supreme Court in the judgment reported in (2012)2 SCC 108 [Executive Engineer, Southern Electricity Supply Company of Orissa Limited )(SOUTHCO) and another vs. Sri Seetaram Rice Mill] wherein a distinction has been made by the Hon'ble Supreme Court with regard to the usage of Sections 126 and 135 of the Indian Electricity Act, 2003. He would also rely upon the unreported judgment of this Court in the case of [N.Mohammed Farook vs. Union of India, rep.by its Secretary, Ministry of Power, New Delhi 110 001 in W.P.(MD) No.1715 of 2011 dated 20.02.2012] wherein this Court extracting the very same judgment of the Hon'ble Supreme Court cited above, directed the authorities to consider the explanation submitted by the petitioner therein and pass appropriate orders as per law taking into account the distinction between Sections 126 and 135 of the Act.
5. Accordingly, the learned counsel for the petitioner would pray for remitting the matter back to the authorities for considering the objections submitted by the petitioner in proper perspective. He would further submit that out of the total demand made under Section 135 of the Act, the petitioner has already deposited a sum of Rs.2,67,850/- during the preliminary assessment itself. Hence, he would pray considering the matter afresh and to pass appropriate orders.
6. Learned counsel for the respondents by way of filing counter affidavit would bring to the notice of this Court that earlier the petitioner and the adjacent land owner filed Writ petitions before this Court challenging the provisional assessment order and this Court vide order dated 04.02.2014 in W.P.Nos.1374 and 1375 of 2011 has directed the respondents to proceed in accordance with Regulation 23(AA) of the Act and pass final orders within a period of four weeks from the date of receipt of a copy of the said order. He would further submit that only as per the direction of this Court, the final assessment order has been now passed by the respondents under Section 135 of the Act. He would also state that the petitioner without paying the due has approached this Court challenging the impugned final order. Accordingly, he would pray for the dismissal of the writ petition.
7. Heard both sides and I have considered the submissions made on either side.
8. The Hon'ble Supreme Court in the judgment reported 2012(2) SCC 108 [cited supra] had made distinction between Sections 126 and 135 of the Act. The relevant portion is extracted here under for ready reference:
''24. Upon their plain reading, the marked 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 Section135 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 (1-A) 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 authorised 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 unauthorised 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 unauthorised 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 sub-sections (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 Part 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 unauthorised use of electricity under Section 126 of the 2003 Act deals with cases of unauthorised use, even in the 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 authorisation, like providing for a direct connection bypassing the installed meter, the case would fall under Section 135 of the Act.
41. The unauthorised 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 the 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 unauthorised use of electricity would mean what is stated under that Explanation, as well as such other unauthorised user, which is squarely in violation of the above mentioned statutory or contractual provisions.
71. Consumption in excess of sanctioned load is violative of the terms and conditions of the agreement as well as of the statutory benefits. Under Explanation (b)(iv), unauthorised use of electricity means if the electricity was used for a purpose other than for which the usage of electricity was authorised. Explanation (b)(iv), thus, would also cover the cases where electricity is being consumed in excess of sanctioned load, particularly when it amounts to change of category and tariff. As is clear from the agreement deed, the electric connection was given to the respondent on a contractual stipulation that he would consume the electricity in excess of 22 kVA but not more than 110 kVA. The use of the negative language in the condition itself declares the intent of the parties that there was an implied prohibition in consuming electricity in excess of the maximum load as it would per se be also prejudiced. Not only this, the language of Regulations 82 and 106 also prescribes that the consumer is not expected to make use of power in excess of the approved contract demand otherwise it would be change of user falling within the ambit of unauthorised use of electricity.
9. Following the said judgment, this Court also in the unreported judgment in the case of [N.Mohammed Farook vs. Union of India, rep.by its Secretary, Ministry of Power, New Delhi 110 001] in W.P.(MD) No.1715 of 2011 decided on 20.02.2012 has referred the same in its order.
10. Since the petitioner has stated that she is using the unmetered electricity service connection only for the purpose for which it was granted, viz., free electricity service connection for agricultural operations and also taking into consideration the judgment of the Hon'ble Supreme Court stated supra making distinction in respect of each categories contemplated under Section 126 and Section 135 of the Act and in view of the fact that the petitioner had not raised this plea, when she challenged the preliminary assessment before this Court, the matter has to be decided only by the authorities.
11. Therefore, considering the limited request made by the petitioner to remit the matter back to the authorities and in view of the fact that the petitioner had also already deposited 50% of the demand made, for considering the point, whether the action has to be taken under Section 126 or Section 135 of the Act, the matter is remitted back to the authorities for its fresh consideration.
12. It is brought to the notice of this Court that the petitioner is a widow and senior citizen aged about 75 years. Hence, the authority is directed to pass appropriate orders in accordance with the aforesaid judgments and also in consonance with the Board's Circular issued in Circular Memo.No. CE/Comml./EE1/AEE1/F.Agl.Ser/D264/05 dated 16.05.2005 as expeditiously as possible. The petitioner is also granted 15 days time from the date of receipt of a copy of this order to file her detailed objections. The authority shall not take this as a positive direction given by this Court and it is for the authority to decide in accordance with law after considering the objections to be filed by the petitioner and also after affording opportunities to the parties concerned.
13. With the above observation, this writ petition is disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.
18.07.2014 vj2 Index :Yes/No To
1. The Assistant Executive Engineer (O & M), Tamil Nadu Generation and Distribution Corporation (TANGEDCO), Ariyalur 621 704.
2. The Assistant Engineer (O & M) Tamil Nadu Generation and Distribution Corporation (TANGEDCO), Thelur Ariyalur Taluk & District.
B.RAJENDRAN,J vj2 W.P.No.14689 of 2014 18.07.2014