Madras High Court
P.Karichiappan (Deceased) vs The Chairman on 26 April, 2021
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.15739 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 19.03.2021
Pronounced On 26.04.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.15739 of 2011
and
M.P.Nos.1 of 2011 & 1 of 2014
(Through Video Conferencing)
1.P.Karichiappan (deceased)
2.Navamani
3.Priya
4.Prakash ... Petitioners
(P2 to P4 substituted as Lrs. of deceased sole
petitioner as per order dated 03.03.2020
made in W.M.P.No.34558 of 2019)
Vs.
1.The Chairman,
Tamil Nadu Electricity Board,
Anna Salai, Chennai – 600 002.
2.The Assistant Executive Engineering
Operation and Maintenance,
Gopi Electricity Distribution Circle
_______________
https://www.mhc.tn.gov.in/judis/
Page No. 1 of 23
W.P.No.15739 of 2011
Tamil Nadu Generation of Electricity and
Distribution of Corporation,
Nambiyur, Gopi Taluk,
Erode District.
3.The Assistant Executive Engineer – (Distribution)
Gopi Electricity Distribution Circle
Tamil Nadu Generation of Electricity and
Distribution of Corporation
Nambiyur, Gopi Taluk,
Erode District. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorari calling for the records of the respondents in
reference No.f.vz;.cnrngh/,2Ng/ek;gp/Nfh.jdp/m.vz;.35/11 dated
13.06.2011 and quash the same as illegal, arbitrary and against the
provisions of Electricity Act, 2003 and Electricity Supply Code 2004.
For Petitioner : Mr.A.R.L.Sundaresan, Senior Counsel
for Mr.P.K.Rajagopal
For Respondents : Mr.D.Krishna Prasad
for N.Damodharan
*******
ORDER
The first petitioner was Managing Partner of M/s.G.K.Spining Mills who has since deceased. Therefore, by an order dated 03.03.2020 in W.M.P.No.34558 of 2019, the legal representatives of the first _______________ https://www.mhc.tn.gov.in/judis/ Page No. 2 of 23 W.P.No.15739 of 2011 respondent (since deceased) were impleaded as second to fourth petitioners.
2. The petitioners are aggrieved by the impugned order dated 13.06.2011 of the third respondent. By the impugned order dated 13.06.2011, the third respondent has held that the first petitioner (since deceased) is liable to pay a sum of Rs.73,13,940/- towards theft of the energy. The alleged theft of energy by the first petitioner (since deceased) was noticed during an inspection held on 18.04.2011 in the petitioner’s spinning mill.
3. It was engaged in manufacturer of cotton yawn. Its meter was checked on 26.03.2011. Thereafter, on 18.04.2011, a notice of inspection was issued to the first petitioner (since deceased) to inspect the meter.
4. On 18.04.2011, the inspection was carried out by the officials of the Electricity Board and an inspection report dated 18.04.2011 was generated and issued to the first petitioner (since deceased). _______________ https://www.mhc.tn.gov.in/judis/ Page No. 3 of 23 W.P.No.15739 of 2011
5. Based on the inspection report, a notice under Section 135(1)(b) & (c) of the Electricity Act, 2003 was issued to the first petitioner (since deceased). Under these circumstances, the first petitioner (since deceased) sent a reply to the respondent. Thereafter, a Provisional Assessment Order dated 19.04.2011 was passed by the second respondent Assistant Executive Engineer (Operation and Maintenance).
6. The second respondent herein provisionally concluded that the unit consumed by the first petitioner (since deceased) as 8,31,940.12 units and rounded it off to 8,31,940 units for 365 days as per the following formula:
129.505 x 0.8 x 22 x 365 = 8,31,940.12 units 1.0 or say 8,31,940 units Recorded Consumption (RC) : 1,18,385 units
7. The Provisional Assessment states the first petitioner (since deceased) committed a theft of 7,13,085 units (8,31,940 - 1,18,385 = 7,13,085) being the difference between the units shown to be consumed and the units actually consumed. Therefore, the first petitioner (since _______________ https://www.mhc.tn.gov.in/judis/ Page No. 4 of 23 W.P.No.15739 of 2011 deceased) was asked to pay a sum of Rs.73,13,938.75 towards the stolen energy.
8. It is the case of the petitioners that to avoid unnecessary harassment and prosecution, the first petitioner (since deceased) paid a sum of Rs.6,50,000/- upfront as compounding fee. It is submitted that having compounded the offence, provisional assessment by the second respondent vide Provisional Assessment order dated 19.04.2011 was bad.
9. It is submitted that though the first petitioner (since deceased) paid the aforesaid sum upfront, the respondent failed to restore the power connection which was disconnected.
10. Under these circumstances, the first petitioner (since deceased) filed W.P.No.11040 of 2011. The said writ petition came to be disposed on 29.04.2011. The Court directed the first petitioner (since deceased) to pay a sum of Rs.25,00,000/- as a condition for restoring the electricity connection.
_______________ https://www.mhc.tn.gov.in/judis/ Page No. 5 of 23 W.P.No.15739 of 2011
11. The learned Senior Counsel for the petitioners submits that it was unable to muster the aforesaid amount of Rs.25,00,000/- and has therefore suffered and was unable to restart the mill all these years. Meanwhile, the first petitioner (since deceased) also filed objection against the Provisional Assessment order dated 19.04.2011 passed by the second respondent/Assistant Executive Engineer (Operation and Maintenance) of the Tamil Nadu Generation of Electricity and Distribution of Corporation. The third respondent affirmed determination in the Provisional Assessment order dated 19.04.2011 vide impugned order dated 13.06.2011.
12. The learned Senior Counsel for the petitioners submits that the impugned demand is unsustainable. It is submitted that determination in Provisional Assessment order dated 19.04.2011 was re-affirmed vide impugned order dated 13.06.2011 in an arbitrary.
13. It is submitted that there was no energy theft by the first petitioner (since deceased). In any event, the officers of the Electricity _______________ https://www.mhc.tn.gov.in/judis/ Page No. 6 of 23 W.P.No.15739 of 2011 Board had visited the unit on 26.03.2011 and would have noticed it there was any theft then and there.
14. It is submitted even if there was any theft which is not admitted, the first petitioner (since deceased) could be accused of having committed theft only for the period between 26.03.2011 and 18.04.2011, i.e. after the visit on 26.03.2011. He therefore submits that there is no factual basis on which it can be said that the first petitioner (since deceased) had committed theft of power.
15. The learned Senior Counsel for the petitioners further submits that Part IV of the Electricity Supply Code deals with the procedure for determining the amount in case of electricity theft.
16. He submits that under Section 23AA of the Tamil Nadu Electricity Supply Code, there is a procedure prescribed, wherein, the Authorized Officer has to compute the quantum of energy consumption for the past 12 months and a compounding notice in Form – 11 in appendix to the said Code may be issued and the amount collected as per Section 152 of the Act.
_______________ https://www.mhc.tn.gov.in/judis/ Page No. 7 of 23 W.P.No.15739 of 2011
17. The learned Senior Counsel submits that after the Electricity Act, 2003 has come into force, the powers is vested only with the Special Court constituted under Part V of the Electricity Act, 2003, not only to try the offence but also to determine the “Civil Liability” against the consumer or person in terms of money for theft of energy which shall not be less than an amount equivalent to two times the tariff rate applicable for the period of 12 months receiving the date of deduction to the theft of energy.
18. The learned Senior Counsel for the petitioners therefore submitted that there is no case was made out for demanding the amount for a period of one year and therefore prayed for quashing the impugned order.
19. He further submits that “Civil Liability” is to be determined finally only by the Special Court. He therefore submits that having collected compounding Fee of Rs.6,50,000/-, the petitioners cannot be asked to pay the amount of Rs.73,13,938.75. _______________ https://www.mhc.tn.gov.in/judis/ Page No. 8 of 23 W.P.No.15739 of 2011
20. The learned counsel for the respondent, on the other hand, defends the impugned order and submits that the arguments of the learned Senior Counsel is unsustainable in the light of the decision of this Court in W.A.Nos.1808 of 2009 and 1811 of 2009 vide order dated 08.04.2019 passed by the Hon'ble Mr.Justice Mr.Venugopal and the Hon'ble Mr.Justice S.Vaidyanathan as which was also followed in several W.Ps.
21. I have considered the arguments advanced by the learned Senior Counsel for the petitioners and the respondent. I have also perused the impugned order and the provisions of the Act and the Code.
22. An inspection was carried on 18.04.2011. As per the inspection report dated 18.04.2011, the first petitioner (since deceased) committed energy theft by tampering the meter.
23. A Provisional Assessment Order was made under Section 126(2) of the Electricity Act, 2003 by the third respondent on 19.04.2011. It was followed by a Final Assessment Order under Section _______________ https://www.mhc.tn.gov.in/judis/ Page No. 9 of 23 W.P.No.15739 of 2011 126(3) of the Electricity Act, 2003 by the third respondent Assistant Executive Engineer – (Distribution).
24. Under Section 135 in Part XIV of the Act, a person who dishonestly abstract or consumes or uses electricity is punishable with imprisonment for a term which may extend to three years or with fine or with both.
25. Sub-Section (1-A) to Section 135 of the Act was inserted into Act with effect from 15.06.2007 vide the Electricity (Amendment) Act, 2007 (Act 26 of 2007). The third proviso to Sub-Section (1-A) reads as under:-
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.
26. The said proviso makes it clear that licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity _______________ https://www.mhc.tn.gov.in/judis/ Page No. 10 of 23 W.P.No.15739 of 2011 charges in accordance with the provisions of the Act, without prejudice to the obligation to lodge the complaint, shall restore the supply line of electricity within forty-eight hours of such deposit or payment. Thus, authorized officers can determine amount payable towards theft under Section 126 of the Act.
27. That apart, Regulation 23(AA) of the Tamil Nadu Electricity Supply Code also authorizes disconnection of supply of electricity and to file a complaint in the police station as per the procedure of Section 135(1-A) of the Act based on the conclusion of the Assessing Officer who has conducted the inspection.
28. The said proviso also makes it clear that the electricity connection can be restored only if the stipulation of the third proviso to Section 135(1-A) of the Act is satisfied. The third proviso to Section 135(1-A) of the Act as extracted above also makes it abundantly clear that 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 the Act, without prejudice to the obligation to lodge the complaint, _______________ https://www.mhc.tn.gov.in/judis/ Page No. 11 of 23 W.P.No.15739 of 2011 shall restore the supply line of electricity within forty-eight hours of such deposit or payment.
29. Provision of Section 154(4) and (5) giving the Special Court to power to determine the “Civil Liability” has to be read in conjunction with power vested with the Special Court constituted under Part XV. The Special Court has been constituted for the purpose of providing speedy trial of offence referred to in Sections 135 to 140 and Section 150 of the Act.
30. The first petitioner (since deceased) had thus rendered itself liable to be punished under Section 135 of the Electricity Act, 2003 and the consequences thereof with imprisonment for a term which may extend to three years or with fine or with both.
31. In this case, no prosecution proceeding was initiated against the first petitioner (since deceased). Therefore, question of a Special Court determining the “Civil Liability” did not arise. _______________ https://www.mhc.tn.gov.in/judis/ Page No. 12 of 23 W.P.No.15739 of 2011
32. Under Section 151 of the Electricity Act, 2003, “No Court shall take cognizance of an offence punishable under the 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. This is notwithstanding anything contained to the code of criminal procedure.
33. Under Section 152 of the Electricity Act, 2003, such offences can also be compounded. The appropriate Government or any Officer authorized in this behalf of can accept from a consumer or a person who has committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under the Act, a sum of money by way of compounding of the offence as specified in the table to Section 152 of the Electricity Act, 2003.
34. However, under Section 126 of the Electricity Act, 2003, irrespective of prosecution for theft of energy under Section 135 read with Section 154 of the Act, the officers are empowered to determine the _______________ https://www.mhc.tn.gov.in/judis/ Page No. 13 of 23 W.P.No.15739 of 2011 amount payable on account of theft. It is a complete code by itself. Independently, the officers under Section 126 of the Electricity Act, 2003 are empowered to determine the amount payable by the first petitioner (since deceased) for the theft of energy. Section 126 of the Act reads as under:-
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 judgment the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment, may, accept such assessment _______________ https://www.mhc.tn.gov.in/judis/ Page No. 14 of 23 W.P.No.15739 of 2011 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 1[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 _______________ https://www.mhc.tn.gov.in/judis/ Page No. 15 of 23 W.P.No.15739 of 2011 of electricity was authorised; or (v) for the premises or areas other than those for which the supply of electricity was authorized.”
35. The power to determine the amount payable by a consumer on account of theft under Section 126 of the Electricity Act, 2003 cannot be in derogation of the powers conferred on the Special Court under Part XV of the Electricity Act, 2003. Determination of “Civil Liability”, by a Special Court, will arise only where there is no determination under Section 126 of the Act.
36. As per the Explanation to Section 154 of the Act, “Civil Liability” means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in Sections 135 to 140 and Section 150 of the Act.
37. It cannot however mean that the power exercised by the third respondent under Section 126 of the Act was without jurisdiction. Question of determining the amounts the Civil Liability would arise only where there is a prosecution for the offence committed by such person accused of committing of the offence under the Act and where a _______________ https://www.mhc.tn.gov.in/judis/ Page No. 16 of 23 W.P.No.15739 of 2011 complaint is lodged before it.
38. Mere compounding of the offence under the Electricity Act, 2003 or payment of any amount provisionally does not mean that the amount determined and payable by the first petitioner (since deceased) under Section 126 of the Act, 2003 can be given a go by.
39. Further, power to determine “Civil Liability” under Section 154 (5) & (6) of the Electricity Act, 2003 by the Special Court is in addition to try the case for offence for where such person is prosecuted. In this case, the records show that the first petitioner (since deceased) compounded the offence to stave off the prosecution. It does not mean that the first petitioner (since deceased) is not liable to pay the amount determined under Section 126 of the Act.
40. The method of determination of “Civil Liability” under Section 154(5) by the Special Court and the amount to be determined by the Authority under Section 126(6) of the Electricity Act, 2003 are same. They are two different methods prescribed under the Act. If there is _______________ https://www.mhc.tn.gov.in/judis/ Page No. 17 of 23 W.P.No.15739 of 2011 prosecution under Section 154 of the Act before the Special Court, the Special Court can determine the “Civil Liability”. Independently, the authorities can determine the amount under Section 126 of the Act. Relevant portion of these two provisions are reproduced as below:-
Section 126 (6) of the Electricity Section 154 (5) of the Electricity Act, 2003 Act, 2003 (6) The assessment under this (5) The Special Court shall section shall be made at a rate determine the civil liability equal to twice the tariff rates against a consumer or a applicable for the relevant person in terms of money for category of services specified theft of energy which shall in sub-section (5). not be less than an amount equivalent to two times of Explanation.--For the purposes of the tariff rate applicable for a period of twelve months this section,-
preceding the date of detection of theft of energy
(a) "assessing officer" means or the exact period of theft if an officer of a State determined whichever is less Government or Board or and the amount of civil licensee, as the case may liability so determined shall be, designated as such by be recovered as if it were a decree of civil court.
the State Government
(b) "unauthorised use of (6) In case the civil liability so electricity" means the determined finally by the usage of electricity-
Special Court is less than the amount deposited by the i. by any artificial means; or consumer or the person, the ii. by a means not authorised excess amount so deposited by the concerned person or by the consumer or the authority or licensee; or _______________ https://www.mhc.tn.gov.in/judis/ Page No. 18 of 23 W.P.No.15739 of 2011 Section 126 (6) of the Electricity Section 154 (5) of the Electricity Act, 2003 Act, 2003 iii. through a tampered meter; person, to the Board or or licensee or the concerned iv. for the purpose other than person, as the case may be, for which the usage of shall be refunded by the Board electricity was authorised; or licensee or the concerned or person, as the case may be, v. for the premises or areas within a fortnight from the other than those for which date of communication of the the supply of electricity order of the Special Court was authorised. together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment.
Explanation.--For the purposes of this section, "civil liability" means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in sections 135 to 140 and section 150.
41. Thus, the arguments of the learned Senior Counsel for the petitioners that after the commencement of Electricity Act, 2003, the Assessing Officer has no power to demand amount towards loss on account of theft in the light of Sections 154(5) and (6) of the Electricity _______________ https://www.mhc.tn.gov.in/judis/ Page No. 19 of 23 W.P.No.15739 of 2011 Act, 2003 cannot be countenanced.
42. The Assessing Officer is empowered not only determine the amount provisionally but also finally. Further, any person aggrieved by a Final Assessment Order under Section 126 of the Electricity Act, 2003, may file an appeal before the Appellate Authority specified by the State Commission under Section 127 of the Electricity Act, 2003. Section 127 of the Electricity Act, 2003 reads as under:-
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 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.
43. Therefore, there are no merits in the present Writ Petition filed _______________ https://www.mhc.tn.gov.in/judis/ Page No. 20 of 23 W.P.No.15739 of 2011 by the petitioners questioning the order passed by the third respondent under Section 126 of the Electricity Act, 2003. Since the petitioners have an alternate remedy by way of an appeal under Section 127 of the Act, liberty is given to the second to fourth petitioners to file statutory appeal before the Appellate Authority, within a period of thirty days from the date of receipt of a copy of this order.
44. If such an appeal is filed within the aforesaid stipulated time, the Appellate Authority shall consider the same on merits and dispose the same in accordance with law after following the procedure prescribed under the Rules and Regulations as applicable.
45. This Writ Petition stands dismissed with the above observations. No cost. Consequently, connected Miscellaneous Petitions are closed.
26.04.2021 Index : Yes/No Internet : Yes/No jen _______________ https://www.mhc.tn.gov.in/judis/ Page No. 21 of 23 W.P.No.15739 of 2011 To
1.The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai – 600 002.
2.The Assistant Executive Engineering Operation and Maintenance, Gopi Electricity Distribution Circle Tamil Nadu Generation of Electricity and Distribution of Corporation, Nambiyur, Gopi Taluk, Erode District.
3.The Assistant Executive Engineer – (Distribution) Gopi Electricity Distribution Circle Tamil Nadu Generation of Electricity and Distribution of Corporation Nambiyur, Gopi Taluk, Erode District.
_______________ https://www.mhc.tn.gov.in/judis/ Page No. 22 of 23 W.P.No.15739 of 2011 C.SARAVANAN, J.
jen Pre- delivery order in W.P.No.15739 of 2011 and M.P.Nos.1 of 2011 & 1 of 2014 26.04.2021 _______________ https://www.mhc.tn.gov.in/judis/ Page No. 23 of 23