Madras High Court
K.Dominic vs The Assistant Executive Engineer on 23 December, 2022
WP(MD)No.9324 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 23.12.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.9324 of 2010
and
M.P.(MD)Nos.1 & 2 of 2010
K.Dominic : Petitioner
Vs.
1.The Assistant Executive Engineer,
Tamil Nadu Electricity Board,
Tuticorin Electricity Distribution
Circle Town (North),
Tuticorin.
2.The Superintendent Engineer,
Tamil Nadu Electricity Board,
Tuticorin Electricity Distribution
Circle Town (North),
Tuticorin. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India seeking
issuance of Writ of Certiorari calling for the records pertaining to the proceedings in
Letter No.2/Executive Engineer/Distribution/N/North/Tuticorin/Ko.Theft of Energy A.
963/10, dated 13.07.2010 and quash the same.
For Petitioner : Mr.N.L.Rajah,
Senior Counsel
for Mr.S.Alagusundar
For Respondent : Mr.S.Dheenadhayalan
*****
1/8
https://www.mhc.tn.gov.in/judis
WP(MD)No.9324 of 2010
ORDER
This writ petition is filed as against the impugned assessment order passed by the
Assistant Executive Engineer in Letter No.2 / Executive Engineer / Distribution / N /
North / Tuticorin / Ko.Theft of Energy A.963/10, dated 13.07.2010, in and by which, the
petitioner was directed to pay a sum of Rs.26,28, 891/- for the theft of 2,72,348 units of
electricity.
2. Learned Senior Counsel for the petitioner submitted that the petitioner is
running a factory named as "CIBIC ICE" at Tuticorin. On 22.06.2010 there was an
inspection by anti-power theft squad wing in the petitioner's factory of Tirunelveli region,
however, no infirmity in the metre was found by the said wing. Again on 13.07.2012,
there was another inspection by the same squad and they recorded that there was a theft of
energy as contemplated under section 135(1) of the Electricity Act, 2003 (hereinafter
referred to as “the Act”) and warned the petitioner of criminal prosecution. He further
submitted that when no infirmity was found during the inspection on 22.06.2010, it is
surprise to note that the respondent board made another inspection on 13.07. 2010 and
found the theft of electricity. However, in view of the warning raised by the respondent,
the petitioner proposed to compound the offence under Section 152(1) of the Act by
paying a sum of Rs.5,10,000/- on the same day itself and accordingly, he has also paid the
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WP(MD)No.9324 of 2010
amount. However, the first respondent issued the impugned assessment notice on the very
same day demanding the petitioner to pay a sum of Rs. 26,28,891/-.
3. Learned Senior Counsel further submitted that only the Special Court has the
jurisdiction to determine the civil liability of the consumer under Section 154(5) of the
Act. According to him, the Special Courts are constituted under Section 153 of the Act
and the Special Courts alone are empowered to try offences under Sections 135 to 139 of
the Act. The Special Courts should also determine the civil liability against the consumer
in terms of money for the theft of energy as per Section 154(5) of the Act and the
respondent cannot usurp the power of determination of civil liability arising out of theft
of energy. The civil liability is also defined as loss of damage incurred by the licensee for
theft of energy. Therefore, the civil liability, if any, can be decided by the Special Court,
viz., Principal District and Sessions Court, Tuticorin, notified under the Act.
4. Learned Standing Counsel for the respondent Electricity Board submitted that
the first inspection made on 22.06.2010 was not a full-fledged inspection and therefore,
another inspection was made on 13.07.2010. During the inspection, it was found that the
petitioner, by removing the clamps which were mounted in the meter box, without
tampering the seals provided in the chamber box, put up an electronic setup inside the coil
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WP(MD)No.9324 of 2010
of the chamber box, so as to control the consumption recorded in the metre. The same
setup is operated through remote control, whereby the petitioner can stop the proper
recording of the metre and it is possible that when the inspection made on 22.06.2010 the
petitioner might have used the remote control to hide the theft of electricity. The
petitioner has also accepted the theft of electricity and paid for compounding the charges.
Since the petitioner has accepted the theft of energy and paid the compounding amount
under Section 152 of Electricity Act, there is no occasion for the Special Court either to
try the criminal or civil proceedings. The assessment order provided to the petitioner was
only a provisional assessment order and by that order, the petitioner was only called upon
to attend the personal hearing, but the petitioner approached this court without resorting
to the available remedy. He further submitted that in pursuance of the interim order
passed by this Court dated 29.09.2010, the petitioner has paid a sum of Rs.10,00,000/-
and the respondents have also restored the electricity service connection.
5. This Court considered the rival submissions made and perused the material
placed on record.
6. The petitioner is running an ice factory at Tuticorin and has also availed an
electric service connection with a load of 99HP (85HP). The flying squad from the
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WP(MD)No.9324 of 2010
respondent department made surprise inspection in petitioner’s ice factory on 13.07.2012
and found there was a theft of energy as contemplated under section 135(1). The offence
of theft of electricity is compoundable under section 152 of Electricity Act, 2003 and this
petitioner, by paying a sum of Rs.5,10,000/- on the date of inspection has compounded
the offence. Thereafter the first respondent has also raised a demand for a sum of
Rs.26,28,891/- under Section 126 of the Act. This, according to the petitioner, is a civil
liability which can be enforced only through a Special Civil Court which is competent to
try the offences under the Act.
7. If the assessing officer, on an inspection of any place, 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 under Section 126 of the Act. The department in this case has taken a
specific stand that the impugned order is only a provisional order under Section 126 of
the Act. The assessment made under Section 126 of the Act has nothing to do with
Sections 135 and 152 of the Act. The compounding of offence by paying a sum of
Rs.5,10,000/- by the petitioner for the offence committed by him under Section 135 has
nothing to do with the assessment made by the assessing officer under Section 126 of the
Act. The petitioner is having a right of submitting his objection to this provisional
assessment as per Section 126(3) of the Act and the assessing officer, after affording
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WP(MD)No.9324 of 2010
reasonable opportunity of hearing to the petitioner, shall pass final order of assessment.
Therefore, there is no reason to interfere with this impugned order at this stage, since it is
only a provisional assessment made by the assessing officer for which this petitioner has a
right of objection and right of personal hearing before the assessing officer.
8. Therefore, this writ petition is dismissed with a liberty to the petitioner to raise
his objection and the assessing officer shall decide the further course of action by
following the procedure contemplated under Clause 23(AA) of the Tamil Nadu Electricity
Supply Code, 2004. In this case the petitioner has already deposited a sum of
Rs.10,00,000/- pursuant to the interim order passed by this Court and therefore the
assessing officer shall proceed with final order without insisting for any further deposit of
amount. There shall be no order as to costs. Consequently, connected miscellaneous
petitions are closed.
Index : Yes / No 23.12.2022
Internet : Yes
gk
https://www.mhc.tn.gov.in/judis
WP(MD)No.9324 of 2010
To
1.The Assistant Executive Engineer,
Tamil Nadu Electricity Board,
Tuticorin Electricity Distribution Circle Town (North),
Tuticorin.
2.The Superintendent Engineer,
Tamil Nadu Electricity Board,
Tuticorin Electricity Distribution Circle Town (North),
Tuticorin.
https://www.mhc.tn.gov.in/judis
WP(MD)No.9324 of 2010
B.PUGALENDHI, J.
gk
W.P.(MD)No.9324 of 2010
23.12.2022
https://www.mhc.tn.gov.in/judis
