Madras High Court
M/S. A.R. Metallurgicals Pvt Ltd vs The Superintending Engineer on 16 April, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2025:MHC:1134
W.P.No.13745 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.04.2025
CORAM:
THE HONOURABLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.13745 of 2025
and
W.M.P.Nos.15435 & 15436 of 2025
M/S. A.R. METALLURGICALS PVT LTD.,
HTSC NO.155,
MALLAGAM AKOTHA PALLY VILLAGE,
SHOOLGIRI, DHARMAPURI,
REP. BY ITS
DR. PARVEEZ RAHIM KHAN ... Petitioner
Vs
1. THE SUPERINTENDING ENGINEER,
KRISHNAGIRI ELECTRICITY DISTRCIT CIRCLE,
NO.110, K.V.S.S. CAMPUS,
RAYAKOTTAI ROAD,
KRISHNAGIRI - 635 002.
2. THE SUB - REGISTRAR,
SHOOLAGIRI,
KRISHNAGIRI - 635 117 . ... Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of India for the
issuance of Writ of Certiorarified Mandamus, calling for the records of the
First Respondent in L.No.SE/KEDC/KGI/DFC/AO/AAO/HT/AS/F.H.T.SC.
155D.No.532/ 2023 dated 22.09.2023 quash the same and consequently direct
the second respondent to delete the petitioner property in survey No.311/1B of
1.5650 hectare i.e. 3.87 acres in Nallagankothapalli village from the
encumbrance certificate.
1/10
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/05/2025 01:05:32 pm )
W.P.No.13745 of 2025
For Petitioner : Mr.Krishnamoorthy
assisted by Mr.A.S.Balaji
For R1 : Mr.K.Madhusudanan (TANGEDCO)
For R2 : Mr.R.Sasikumar
Government Advocate
ORDER
This writ petition is filed challenging the order dated 22.09.2023 and to
quash the same and consequently to direct the second respondent to delete the
petitioner’s property in Survey No. 311/1B of 1.5650 hectares (i.e., 3.87 acres)
in Nallagankothapalli Village from the encumbrance certificate.
2. The learned counsel appearing on behalf of the petitioner submits
that, originally, an order was passed on 31.01.1999 assessing a sum towards
electricity theft. The petitioner approached this Court by way of W.P.No. 2754
of 1999. This Court considered the issue in detail and passed an order granting
liberty to the petitioner to file an appropriate appeal under Sections 153 and
154 of the Electricity Act, 2003. The petitioner has already filed Electricity
O.P.No.71 of 2010 before the Principal District and Sessions Court,
Dharmapuri at Krishnagiri and the same is pending. As a matter of fact, the
respondents also preferred Writ Appeal No. 1845 of 2011 against the said
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/05/2025 01:05:32 pm )
order passed in the writ petition and the same was dismissed by an order dated
13.04.2016. While the matter is still pending and yet to be adjudicated by the
concerned District Court, the respondents have suddenly issued the impugned
order under the Tamil Nadu Electricity Board (Recovery of Dues) Act, 1978,
directing the Sub-Registrar not to permit the sale of the property mentioned
above.
3. The learned counsel appearing for the petitioner relies on the
judgment of the Hon’ble Division Bench of this Court in Writ Appeal No.646
of 2003. It was categorically held in that judgment, after considering the
definition in Section 2(2) for the term dues, that any sum not falling within the
meaning of dues cannot be subject to action under the said Act. Paragraph No.
6 of the said judgment is extracted hereunder for ready reference:-
“6. There is no provision anywhere, which says that
the debtor includes the transferor. Similarly, there is no
provision which says that the amount payable in a bill or any
other proceedings becomes a charge on the property or the
purchaser from such person is also personally liable. In the
absence of any such specific provision, we are unable to
accept the contention of the appellant. Hence, this appeal is
dismissed. No costs.”
4. The learned counsel appearing for the petitioner relies on the
judgment of this Court in Shahjahan vs. Superintending Engineer, Tamil
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/05/2025 01:05:32 pm )
Nadu Electricity Board (W.P. No. 3987 of 2004). In that case too, it was
categorically held that there must either be a statutory provision creating such
a charge over the property or an express contract. In the absence of a statutory
charge, the transfer of property cannot be prohibited by the respondents. The
relevant portion of that judgment is extracted hereunder:-
“The petitioner is only the subsequent purchaser in
public auction. By such purchase in public auction, the
question is whether he will get into the shoes of Mr.Manivel
and become the debtor as defined in Section 2(3) of the Act.
In my considered opinion, the anwer is in an emphatic
“no”. The reason is very simple. The amount which is due
from Manivel is only a personal libaility from him. It has
got nothing to do with the property. Absoultely, there is
nothing to show that a charge is created on the property in
respect of such dues. There is no statutory provision
creating such charge over the property. If there is any such
charge created either by means of a contract or by means
of any statutory provision, then, in that event, if the
property is transferred, the charge will also be carried
along with the property, it will also be transferred to the
transferee of the property. In such event, the transferee will
be a debtor and so the amount can be recovered from him.
If he fails to pay the amount, it can be recovered from the
property because there is a charge over the property. The
learned counsel for the respondent is not in a position to
show any such contract or statutory provision creating
charge over the property in respect of the dues from
Mr.Manivel. Therefore, on the date, when the property was
sold in public auction to Malathy, it was sold free of any
encumbrance, In other words, it was sold without there
being any charge over the property.”
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/05/2025 01:05:32 pm )
5. Therefore, the learned counsel appearing for the petitioner submits
that firstly when the liability itself is at large before the concerned District
Court. Secondly, even dehors the question of liability, the matter is beyond the
jurisdiction of the respondents, as the sum claimed for electricity theft does not
fall within the definition of dues under Section 2(2) of the Tamil Nadu
Electricity Board (Recovery of Dues) Act, 1978,
6. Per contra, the learned counsel appearing on behalf of the first
respondent submits that a huge sum of Rs. 6,95,27,918/- is due in respect of
energy theft, and therefore, action has been taken.
7. I have considered the rival submissions made on either side and
perused the material records of the case.
8. Firstly, with regard to the question of liability, it can be seen that an
original assessment order was passed on 31.01.1999. When the petitioner
earlier approached this Court by W.P. No. 2754 of 1999, the same was
disposed of with certain directions. It is essential to extract the operative
portion of the said order, which reads as follows:
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/05/2025 01:05:32 pm )
“6. In view of all the above, the writ petition is
disposed of with liberty to the petitioner to file an
appropriate appeal under Sections 153 and 154 of the
Act. If any such appeal is filed, the petitioner is at liberty
to raise all the grounds raised in this writ petition. It is
made clear that this Court has not expressed any opinion
regarging the limitation for such appeal and the same is
left open.
7. The respondents are directed not to disconnect
the electricity in pursuance of the impugned order for a
period of eight weeks from today to enable the petitioner
to prefer an appeal before the Special Court. No costs.”
9. Accordingly, a copy of the original petition that is said to be pending
before the District Court is filed before this Court. The prayer made in the O.P.
is specifically to declare the order dated 31.01.1999 as null and void. The
prayer portion is extracted hereunder for ready reference:-
“Therefore it is prayed that this Honourable Court
may be pleased
(a) to declare that the impugned order dated
31.01.1999 in the proceedings Lr.No.
SED/GEN/F.Doc.A.R.M./TEE 30/98-99/D 1452/99 dt.
31.01.1999 passed by the respondents as null and void and
consequently grant an order of permanent injunction not to
disconnect electricity to the scheduled premises based on the
above impugned order.
(b) directing the respondent to pay the cost of this
petition.
(c) Grant such other relief or relief's as this
Honourable Court may deem fit and proper.”
10. Therefore, when the petitioner was granted liberty to file an appeal
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/05/2025 01:05:32 pm )
and the petitioner seeks to declare the assessment as null and void, pending the
O.P., unless an interim order staying the said order has been granted by the
District Court, it cannot be contended that the liability is yet to be fixed. Even
now, it is open to the petitioner to approach the same Court for an interim
order.
11. As the matter is pending before the District Court and only for the
purpose of obtaining an interim order, the jurisdiction of this Court under
Article 226 of the Constitution of India cannot be invoked. It is for the
petitioner to approach the very same Court by way of an interim order of stay
of the recovery or of the assessment order and it is for the concerned Court to
consider the request on its merits.
12. As for the second contention that is raised by the learned counsel
appearing for the petitioner, I am of the view that there can be no quarrel with
the legal proposition that unless there is an express contract or a statutory
provision, the respondents cannot proceed to create a charge over the property.
In this regard, the definition of dues under Section 2(2) of the Tamil Nadu
Electricity Board (Recovery of Dues) Act, 1978, is extracted hereunder:-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/05/2025 01:05:32 pm )
“(2) “Dues” means any sum payable to Board on
account of -
(i) Consumption of electrical energy supplied; or
(ii) Any remuneration, rent or other charges for hire
inspection, test installation, connection, repairs, maintenance
and removal of any electric meter, electric machinery, control
gear, fittings, wires or apparatus for lighting, hearing, colling
or motive power or for any other purpose for which
electricity can or may be used, or any industrial or
agricultural machinery operated by electricity: or
(iii) Price of any such goods as aforesaid taken to loan
but not returned.”
13. It can be seen that dues will include consumption of electricity
supplied. The relevant portion of the assessment order is also extracted
hereunder:
“On examination of your explanation to the show cause
notice dated 01.10.98 and the record available in the enquiry
conducted it is found that you have committed the Theft of
Energy by bye-passing the 11KV metering cabicle, by providing
3 Nos. Cable fore shorting of incoming and outgoing jumpers of
R, Y and B, Phases, thus preventing the meter from recording of
the energy consumed by your industry. By committing the said
offence, you have dishonestly abstracted, consumed and used
energy with intent to defraud the Board and thereby you have
caused loss of revenue to the Board.”
14. Thus, it can be seen that the petitioner had prevented the meter from
recording the energy consumed and accordingly, charges were levied.
Therefore, in my view, the dues claimed in this case fall within Section 2(1) of
the Act and hence, the second contention raised by the learned counsel
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/05/2025 01:05:32 pm )
appearing for the petitioner cannot be sustained.
15. In view thereof, this writ petition is disposed of, however, with
liberty to the petitioner to move the District Court for any interim order, if any,
which will be considered by that Court on its own merits. Consequently,
connected miscellaneous petitions are closed. No costs.
16.04.2025
Neutral Citation: Yes
nsl
To
1. THE SUPERINTENDING ENGINEER,
KRISHNAGIRI ELECTRICITY DISTRCT CIRCLE,
NO. 110, K.V.S.S. CAMPUS,
RAYAKOTTAI ROAD, KRISHNAGIRI 635 002.
2. THE SUB REGISTRAR,
SHOOLAGIRI,
KRISHNAGIRI - 635 117 .
D.BHARATHA CHAKRAVARTHY, J.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/05/2025 01:05:32 pm )
nsl
16.04.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/05/2025 01:05:32 pm )
