Madras High Court
The Superintending Engineer vs Karuppanan on 20 September, 2023
2023/MHC/4371
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.09.2023
CORAM
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)No.709 of 2015
and
M.P.(MD)No.1 of 2015
1.The Superintending Engineer,
Tamil Nadu Electricity Board,
Trichy.
2.The Assistant Executive Engineer,
(Operation and Maintenance),
TANGEDCO, Lalgudi, Trichy District. ...Appellants
-Vs.-
Karuppanan ...Respondent
PRAYER:- Writ Appeal - filed under Clause 15 of Letters Patent Act, to
set aside the order dated 03.06.2015 made in W.P.(MD)No.5370 of 2015
on the file of this Court.
For Appellants : Mr.S.Deenadhayalan
For Respondent : Mr.T.Lenin Kumar
****
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JUDGMENT
(Judgment of the Court was delivered by DR.ANITA SUMANTH, J.)
The Electricity Department is the appellant in this Writ Appeal.
These proceedings have a chequered history and it would be appropriate
to set out the trajectory its journey.
(i)On 13.08.2012, there was an inspection in the premises of
the Writ Petitioner. The officials of the Electricity Department alleged
commission of theft of energy insofar as electricity supply from
agricultural service connection No.1147/TF IV (admittedly the number is
erroneous since the correct service connection number is 534/TF IV) had
been diverted and used in a commercial brick kiln.
(ii)Form-11 invoking Regulation 23AA(22) of the Tamil Nadu
Electricity Supply Code, 2004 (in short ‘Code’) was issued to the Writ
Petitioner offering the option to compound the offence under Section 152
of the Electricity Act, 2003 (in short ‘Act’).
(iii)At this stage the characterisation of the offence as ‘theft of
electricity’ becomes final. This assumes importance in light of the fact
that the Act provides for a duel methodology of assessment, firstly, under
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Section 126 of the Act r/w Regulation 19 of the Code, which provides for
framing of an assessment in cases where a consumer is found to be
indulging in ‘unauthorised use of electricity’ and secondly, under Section
135 of the Act r/w Regulation 23AA of Code in cases of ‘theft of
electricity’.
(iv) Some arguments have been made on the distinction
between 'unauthorised use' and 'theft' of electricity and we will dilate on
this aspect in the subsequent portions of this order.
(v)To continue with the narration of facts, a corrigendum was
issued on 13.08.2012 itself, on the heels of Form-11, correcting the error
in service connection number from 1147 to 534.
(vi)Thereafter, a provisional assessment order in Form-9 for
theft of energy under Section 135/138 of the Act came to be issued.
Under this provisional assessment order, the petitioner was granted an
opportunity to file objections.
(vii)The annexed working sheet raised a demand for a sum of
Rs.1,90,797/-, rounded off to Rs.1,90,800/- and compounding fee of
Rs.16,000/-, which the petitioner has remitted, compounding the offence.
(viii)The first of the five Writ Petitions filed by the Writ
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Petitioner was W.P.(MD)No.12673 of 2012, where the challenge was to
provisional assessment order dated 14.08.2012. The Writ Petition had
been disposed at the time of admission (by R.Sudhakar J.) directing
restoration of electricity connection and permitting the Writ Petitioner to
pursue the matter after filing of objections. The respondents were
directed to pass final assessment orders in accordance with law.
(ix)The second of the Writ Petitions was W.P.(MD)No.16385
of 2012 praying for a stay of proceedings dated 27.11.2012 for
disconnection of electricity supply. That Writ Petition came to be
disposed on 07.07.2014 (by S.Nagamuthu J.). Pending this proceeding, a
final assessment order has been passed and a statutory appeal had been
filed by the writ petitioner.
(x) W.P.(MD)No.16385 of 2012 was thus closed directing the
first respondent therein to pass orders on the appeal within a time frame
fixed by the Court. Inter alia, the Court permitted the respondents to
decide on the question of maintainability of the appeal as well.
(xi)The third Writ Petition was W.P.(MD)No.17214 of 2014.
The challenge was to proceedings of the second respondent therein,
dated 27.11.2012, which is a recovery notice and proceedings dated
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17.09.2014, where the appellate authority had rejected the statutory
appeal filed by the Writ Petitioner on merits. The Writ Petition was
disposed by order dated 27.10.2014 (by M.Venugopal J.).
(xii)Inter alia, the rival contentions of the parties in regard to
whether at all there was provision for a statutory appeal as against final
order of assessment, were noted. However, the Court declined to decide
that issue and, while setting aside appellate order dated 17.09.2014,
remanded the matter back to the file of the appellate authority to decide
the issue of maintainability by way of a reasoned speaking order
uninfluenced by any of the observations made by the Court in that order.
(xiii)As regards restoration of supply, a positive direction was
issued conditional upon part payment of the demand by the Writ
Petitioner. Some payments have been made thereafter, periodically by
the Writ Petitioner, as a result that electricity connection was restored and
is at the moment, live.
(xiv)On 11.02.2015, an order came to be passed by the
authorities referring to a legal opinion received from Standing Counsel
for Tamil Nadu Electricity Board to the effect that the Superintending
Engineer has no appellate power in cases where the assessment was
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made invoking the provisions of Section 135 of the Act r/w Regulation
23AA of Code. The matter was remanded to the file of the Assistant
Executive Engineer to pass final assessment orders.
(xv)A personal hearing was conducted by the authorities
pursuant thereto and a final assessment order came to be passed on
30.03.2015. That order was the subject matter of challenge in
W.P(MD)No.5370 of 2015. After a detailed discussion of the matter, the
Writ Petition came to be allowed by order dated 03.06.2015 and final
assessment order dated 30.03.2015 was set aside directing the
respondents to strictly adhere to the directions already issued in previous
orders including order dated 27.10.2014 in W.P.(MD)No.17214 of 2014.
It is this order dated 03.06.2015 has been assailed before us in the
present Writ Appeal.
2.The primary contention advanced by the appellants, ie., the
authorities of Tamil Nadu Electricity Board, is to the effect that there is
no appeal remedy provided in cases where Section 135 of the Act
relating to theft of electricity has been invoked. This contention is well
placed in light of Section 127 of the Act, which provides for an appeal
only as against any final order made under Section 126, to be filed within
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30 days of such order.
3. Thus, as against an order passed under Section 135 r/w
Regulation 23AA, there is no statutory appeal provided and this position
emanates from the clear and unambiguous language of Section 127 of the
Act. While the respondent/Writ Petitioner does not, and rightly, argue
with this position, it’s submission is that the assessment ought to have, at
the first instance, been made under Section 126 of the Act relating to
unauthorized use of electricity, in which case, a statutory appeal would
lie. Thus, the difference in opinion qua the parties is as to whether the
final assessment ought to have been framed under Section 126 or 135 of
the Act.
4. Section 126 is the statutory provision relating to framing of
assessment and reads thus:
“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
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charge of the place or premises in such manner as may be
prescribed.
1[(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:
2[***]
3[(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
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(iii) through a tampered meter; or
2[(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.]”
5. The provision addresses cases of unauthorized use of
electricity as well, under Clause (b) of the explanation. This includes
unauthorized use through a tampered meter, by artificial means, by
means not authorised, for purposes other than those for which supply was
authorised and in premises other that where the supply has been
authorised.
6.Section 135 of the Act deals with theft of electricity and Sub
Section (1A) provides for immediate disconnection of supply of
electricity where such theft is deducted. The relevant part of the
provision 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
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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:
.....
(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:
..........”
7. Proceedings under Section 126 of the Act must follow the
procedure laid down under Regulation 19 of the Code, that stipulates the
rate applicable as twice the regular tariff as relevant for the specific
category of services specified in Sub Section 5 of Section 126 of the Act.
Per contra, an assessment invoking Section 135 of the Act must be
framed in line with Regulation 23AA of Code, which provides for a
different and more stringent process of assessment. The rate in such
cases would be six times the applicable tariff rate. Furthermore, an
assessment invoking Section 135 of the Act is final and no statutory
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appeal is provided as against the same.
8.Section 126 vests power in the concerned authority to frame
an assessment. The Act however provides for two genres of assessment,
one, a regular assessment under Section 126 and two, an aggravated
assessment, invoking Section 135 of the Act. Section 135 of the Act
carves out those cases relating to theft of electricity, where, the liability is
placed at a greater degree than those cases that are to be assessed
regularly.
9.There is undoubtedly, some amount of overlap in the two
provisions, as both the provisions address unauthorised use of electricity
in various forms. However, if the Officer is of the view that there has
been a conscious (dishonest) attempt to engage in those actions set out in
clauses (a) to (e) of Section 135, then he may, at the first instance, take
recourse to Section 135, which provides for an alternate and more
aggravated assessment. In such cases, an assessment would be framed in
terms of Section 126 r/w Section 135 r/w Regulation 23AA of the Code.
10.In the present case, the Officer has, even at the first
instance, issued Form-11 and inspection report, which are in terms of
Regulation 23AA of the Code and Section 152 of the Act. Thus, he has
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expressed his mind that Section 135 of the Act has been invoked. The
invocation of Section 135 has also been accepted by the Writ Petitioner.
In such circumstances, there is no merit in the contentions of the Writ
Petitioner that an assessment ought to have been made in line with the
prescription under Section 126 and Regulation 19, which limits liability
to twice the applicable tariff.
11.In fact, the petitioner has accepted the offer of compounding
under proceedings dated 13.08.2010 and remitted the fee and with that,
acquiescence with the invocation of Section 135 is complete. It is too late
in the day for the Writ Petitioner to go back on such acquiescence now.
12. We asked whether there was any demarcation as to the
situations that would come under Section 126 and those that would come
under Section 135 for the reason that both the provisions use the term
‘unauthorized use of electricity’. However, no guidelines appear to have
been issued by the authorities in this regard and the invocation of Section
135 would thus fall within the subjective satisfaction of the Officer
concerned. If at all the noticee/consumer believes that the invocation is
erroneous as there is no dishonest act/mens rea on its part, then it is up to
it to reject the offer of compounding and establish innocence in the
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course of trial before the Special Court under Sections 152 to 155 of the
Act.
13. In light of the discussion as above, we do not find any
necessity to relegate the parties once again to the process of appeal and
the direction at paragraph 13 of the order of the Writ Court dated
03.06.2015 is set aside.
14.We now advert to the assessments/appellate order passed by
the authorities and find that all the orders, provisional assessment order
dated 14.08.2012, appellate order dated 17.09.2014 and final assessment
order dated 30.03.2015 are non-speaking and do not contain any reasons
in support of their conclusions.
15.The provisional assessment order contains a working sheet
on the basis of which, the demand has been arrived at. In the working
sheet, the Officer proceeds as though the motor has been working on all
days of the year for 12 hours every day. We find this basis unrealistic
and thus unacceptable.
16.That apart, the appellate order does not adduce any reasons
for confirming the assessment and the finding regarding diversion of
electricity, and the order of final assessment, while referring to the fact
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that explanations were tendered by the Writ Petitioner, does not detail, or
deal with the same.
17.Pending proceedings from 2010, the Writ Petitioner has
paid a sum of Rs.1,50,000/- (approx.) as against a total demand of
Rs.1,90,000/-. Bearing in mind our finding to the effect that the
impugned orders do not reflect proper application of mind and are
unsupported by any evidences, as well as the fact that the parties have
been before the Court from 2012 onwards, we confirm the impugned
final assessment order dated 30.03.2015 to the extent of amount already
remitted by the Writ Petitioner only. To clarify, the demand over and
above the amount already remitted by the Writ Petitioner, is set aside.
18. This Writ Appeal is disposed in terms of this order. No
costs. Consequently, connected miscellaneous petition is closed.
[A.S.M.J.,] & [R.V.J.,]
NCC :Yes/No 20.09.2023
Index :Yes/No
Internet :Yes/No
cmr
DR.ANITA SUMANTH, J.
AND
https://www.mhc.tn.gov.in/judis
R.VIJAYAKUMAR, J.
cmr
W.A.(MD)No.709 of 2015
20.09.2023
https://www.mhc.tn.gov.in/judis
