Madras High Court
The Executive Engineer-Iv vs Varadha Steels on 4 October, 2005
Bench: Markandey Katju, A. Kulasekaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 04/10/2005
Coram
The Hon'ble Mr. MARKANDEY KATJU, The Chief Justice
and
The Hon'ble Mr. Justice A. KULASEKARAN
W.A. No.1694 of 2005
& W.A.M.P. Nos.3274 & 3128 of 2005
AND
W.P. No.27467 of 2005
& WPMP No.29901 of 2005
AND
W.P. No.25568 of 2005
& WPMP No.27991 of 2005
WA No.1694/05 & WP 25568/05:-
1. The Executive Engineer-IV,
Electricity Department, Pondicherry.
2. The Superintending Engineer-III,
Electricity Department,
Pondicherry. .. Appellants/respondents
in WP.25568 of 2005.
-Vs-
Varadha Steels,
No.7 Jaffar Syrang Street,
Chennai 600 001, rep. by K.A. Babu
Managing Partner. .. Respondent in WA/
Petr. in WP.25568/05.
WP 27467 of 2005:-
Varadha Steels,
No.7 Jaffar Syrang Street,
Chennai 600 001, rep. by K.A. Babu,
Managing Partner. .. Petitioner
vs.
1. The Superintending Engineer-III,
Electricity Department, Pondicherry.
2. The Superintending Engineer-I,
Electricity Dept., Pondicherry. .. Respondents.
Appeal under Cl.15 of the Letters Patent against the order dated 18.0
8.2005 made in W.P.M.P. No.27991 of 2005 in W.P. No.25568 of 2005.
!For Appellants :: Mr.T.Murugesan,
Govt. Pleader, Pondicherry.
^For Respondent :: Mr.R.Thiagarajan, Senior
Counsel for Mr.C.S.Krishnamoorthy.
:JUDGMENT
(Delivered by the Honourable The Chief Justice) W.P. No.27467 of 2005:-
This Writ Petition has been filed for the issuance of a writ of certiorari against the impugned order dated 17.8.2005 passed by the first respondent, the Superintending Engineer-III, Electricity Department, Pondicherry, under Section 126 (3) of the Electricity Act, 2003, by which the writ petitioner was provisionally assessed to pay electricity charges to the tune of Rs.2,65,37,000/- and was permitted to file objections against the same.
2. The aforesaid notice dated 17.08.2005 reads as follows:-
" No.6386/ED/SE-III/AE-Tech/F.39/HT-VAD Steel/2005-2006 GOVERNMENT OF PONDICHERRY ELECTRICITY DEPARTMENT ASSESSMENT NOTICE FOR THEFT OF ENERGY Pondicherry, the 17th August, 2005 To M/s Vardha Steels R.S.No.122/1 & 122/6, Thuthipet, Villianur Commune, Pondicherry 605 502.
Sub: Theft of electricity in the premises of M/s Varadha Steels, Sedarapet - Provisional Assessment notice for payment of Extra levy - Reg.
Ref: (1) Show Cause Notice of this department No.2270/ED/EE-IV/JE/F.HT(M/s Varadha Steels)/05-06, dated 05/08/2005.
(2) Your Letter No.Nil, dated 06/08/2005 & 09/08/2005.
- o0o -
With reference to the above subject matter, theft of energy in the following mode has been reported in your industrial premises viz., M/s Varadha Steels, at R.S. No.122/1 & 122/6, Thuthipet, Villianur Commune, Pondicherry 605 502:-
(i) The position of the metering cubicle Air Break (sic) switch handle with base plate along with seal has been shifted by removal of bolt & nut.
(ii) The metering cubicle Air Break switch was in opened condition.
(iii) Fresh pipe wrench-grip markings were visible on the Air Break switch operating vertical pipe.
(iv) One screw-driver with green plastic handle and one Mild Steel ( MS) pipe of about 1+' length were found lying on the nearby earth pit.
(v) The rear gate was found locked inside with departmental seal intact.
(vi) Departmental seals provided on the metering cubicle cover and metering box were intact.
In the presence of the Police Officials, the seals provided on the metering box were removed and the data stored in the memory of the static type (L&T make) Trivector Meter Serial No.04183200 were down loaded in the Common Meter Reading Instrument (CMRI) of the Ramanathapuram O & M by the High Tension Metering Wing. The data down loaded from the meter on 29/07/2005, has been analyzed and it is observed that there was no supply to the meter since 21/07/2005 at 03.17 Hrs. and hence there was also no recordings even though electricity supply was there and your factory had also availed power supply. Moreover you have not complained about non-availability of power supply prior to 29/0 7/2005. The non-recording of the meter reveals that you have indulged in theft of power and power supply to your industry has been availed by disrupting the supply to the metering circuit.
The meter was tested by the High Tension Metering wing on 03/08/2005 around 16.30 Hrs. in the presence of the officials from Revenue Department, Police Department, Electricity Department & representative of your company Thiru Jaffer Ali, Office Administrator and the recording performance of the meter was found to be normal. While testing the healthiness of the metering cubicle, it was found that the R-phase & B-phase fuses provided in the Low Tension terminal box of the metering cubicle were blown off which had resulted in non-availability of voltage, which ultimately affected the functioning of meter. On further check up of the wires that connect the secondary terminal of the metering cubicle and the meter terminals, pin-pierced impressions were noticed in the wires. The data down loaded from the above meter also indicates the message 'updating of the data stopped' since 21/07/20 05 at 03.17 Hrs. After analyzing the consumption recorded in the meter at your industrial premises and the relevant High Tension feeder sending end meter at the sub-station, it is seen that you have availed power till 04.10 hrs. On 29/07/2005. Your representative has refused to sign in the joint inspection report on the inspection/testing carried out on 03/08/2005.
Under the above circumstances it is clearly evident that you have been committing theft of energy. Therefore a show cause notice was issued to you by the Executive Engineer, Division IV, on 05/08/2005, calling upon you to show cause within Seven days from the date of receipt of the notice as to why extra levy should not be collected from you. You had also acknowledged the receipt of the notice on the same day. The time period of 7 days stipulated for giving reply to the show cause notice expired on 12/08/2005. The reasons put forth by you vide letters dated 06/08/2005 received by us on 08/08/2005, and Letter dated 09/08/2005 received by us on 12/08/2005 are not convincing. Now the Extra levy payable by you for theft of energy has been provisionally assessed to be Rs.2,65,37,000/=. You are hereby called upon to pay the extra levy in one lump sum within seven days of service of this assessment order.
If you have any objections against the Extra levy, you may file your objections to the undersigned. If you pay the above amount, power supply at your industrial premises will be restored in pursuance of the rules in this regard.
If you choose to prefer an appeal against this order, you may appeal to the Appellate Authority Viz., Superintending Engineer-I within 60 days from the date of receipt of this order after paying the extra levy.
You are requested to acknowledge the receipt of this notice immediately.
Sd/-
17/08/05 SUPERINTENDING ENGINEER-III Encl: Working Sheet. "
3. A perusal of the notice dated 17.08.2005 shows that the allegation made against the petitioner was that he had committed theft of electricity, the details of which have been given in the said notice. The writ petitioner was served with a show cause notice by the Executive Engineer-IV, Electricity Department, Government of Pondicherry, on 05.08.2005, calling upon him to show cause within seven days from the date of receipt of the notice as to why extra levy should not be collected from him. The writ petitioner acknowledged receipt of the same and replied by letters dated 06.08.2005 and 09.08.2005, which were not accepted by the respondents and hence, the provisional assessment of Rs.2,65,37,000/- was made against him and he was allowed to file objections.
4. In our opinion, this Writ Petition is premature and is liable to be dismissed as such.
5. Section-126 of the Electricity Act, 2003, states 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 assess 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 of premises in such manner as may be prescribed.
(3) The person, on whom a notice has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. "
Thus, a perusal of Section-126 (3) of the Act shows that a person, who has been served with a provisional assessment order, can file objections before the assessing Officer, who shall afford a reasonable opportunity of hearing before passing a final assessment order.
6. The Writ Petitioner approached this Court even before the final assessment order could be passed and hence, in our opinion, the writ petition should not have been entertained at all.
7. Mr. R.Thiagarajan, learned Senior Counsel appearing for the petitioner submitted that the provisional assessment order was passed by an authority who is not the Assessing Officer as defined in Explanation (a) to Section-126 of the Act.
8. Explanation (a) to Section-126 reads as follows:-
" 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; ".
Admittedly, there is no dispute that the authority who passed the provisional assessment order dated 17.08.2005 has been appointed by the State Government. What the learned Senior Counsel contends is that he has been appointed as Assessing Officer under the earlier Electricity Act of 1910 and hence, such officer cannot be deemed to be an Assessing Officer within the meaning of Explanation (a) to Section-12 6 of the 2003 Act. We regret, we cannot agree with this submission of the learned Senior Counsel. As rightly pointed out by Mr. T. Murugesan, learned Government Pleader for the Pondicherry Government, Section 185 (2) (a) of the Act entitles the Assessing Officer appointed under the old Electricity Act of 1910 to function as the Assessing Officer under the New Act of 2003 until some other person is appointed as Assessing Officer as provided under Explanation (a) to Section 126 of the Act.
9. Section 185 (2) (a) of the Act reads as follows:-
" .......
(2) Notwithstanding such repeal,
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; "
A perusal of the above provision shows that any appointment made under the old Act will be deemed to be an appointment made under the new Act unless there is some inconsistency. In our opinion, there is no inconsistency because both under the old as well as the new Electricity Act, appointment of the Assessing Officer has to be made by the State Government and there is no dispute that Superintending EngineerIII, Electricity Department, Pondicherry, who issued the notice dated 17.08.2005, has been appointed by the State of Pondicherry as the Assessing Officer. Hence, in our opinion, until a fresh appointment is made by the State Government as provided under Explanation (a) to Section 126 of the Act, the Assessing Officer appointed under the old Act has the authority and jurisdiction to make assessments under the new Act. Any other interpretation would create a legal vacuum and it is well settled that the law abhors legal vacuums. An interpretation should be taken which does not result in creating a legal vacuum. In our opinion, the interpretation we are taking will not result in any legal vacuum, namely, that the Assessing Officer under the old Act has a right to continue as the Assessing Officer under the new Act until the State Government appoints another person as Assessing Officer under Explanation (a) to Section 126 of the Act.
10. For the reasons given above, we see no merit in the Writ Petition and it is dismissed. However, we direct the Assessing Officer to pass a final assessment order preferably within two weeks of filing of the objections by the writ petitioner before him in accordance with law and after giving him reasonable opportunity of hearing.
11. W.P. No.27467 of 2005 is dismissed with the above direction. No costs. Connected Miscellaneous Petition stands closed.
W.P. No.25568 of 2005:-
In view of our order passed in W.P. No.27467 of 2005, no orders are necessary in this Writ Petition. Consequently, WP No.25568 of 2005 is dismissed. No costs. Connected W.P.M.P. is closed.
Writ Appeal No.1694 of 2005:-
This Writ Appeal is preferred as against the interlocutory order dated 18.08.2005 made in WPMP No.27991 of 2005 in WP No.25568 of 2005. Since the main Writ Petition itself has been disposed of, the Writ Appeal has become infructuous and the same is dismissed as such. Connected Miscellaneous Petitions stand closed.
Index: Yes Internet: Yes JI.
To
1. The Executive Engineer-IV, Electricity Department, Pondicherry.
2. The Superintending Engineer-III, Electricity Department, Pondicherry.