[Cites 34, Cited by 0]
Telangana High Court
M/S. L. Madan Lal Steels Ltd, vs Government Of Telengana, on 2 December, 2025
Author: Surepalli Nanda
Bench: Surepalli Nanda
* THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
+ WRIT PETITION No. 30937 OF 2014
% Dated 17.04.2015
# Madan Lal Steels Ltd.
Rep by its Managing Director
Manoher Bagoria
S/o Late Madanlal Bagaria
R/o 8-2-685/42/A, Road No.12
Banjara Hills, Hyderabad ...... Petitioner
Vs.
$ Government of Telangana
Rep. by its Principal Secretary
Department of Revenue
Telangana Secretariat Building,
Secretariat, Hyderabad & 3 others ...... Respondents
! Counsel for the petitioner : Miss. Hamsa Devineni
^ Counsel for the respondents : Sri O. Manoher Reddy
<GIST:
> HEAD NOTE:
? Cases referred
1. AIR 1995 SC 21
2. AIR 1965 SC 1595
3. 1987 (3) SCC 169
4. 1994 (5) SCC 314
THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION NO.30937 of 2014
ORDER:
The writ petitioner-Company was a High Tension (HT) Power
Consumer bearing HT Sc.No.MDK-171. It used to undertake melt
manufacturing of ingots by melting scrap iron for supply to steel re-
rolling mills. The electric energy service connection of the petitioner
unit was inspected on 19.03.1991 at about 11.45 AM by a Divisional
Engineer. On finding certain artificial means in the form of
sophisticated electric gadgets connected in the potential circuit on the
rare side of the meter fixing board, the petitioner was suspected to
have pilfered electric energy necessitating further investigation, which
revealed the following:
In the meter box (installed for measuring electric energy
consumed), the meter fixing board will be fixed to the rare side of the
meter box with bolts and seals are fixed to these bolts to prevent any
unauthorized person from gaining access to the inside of the metering
circuit. In the present case, all the 4 numbers of the meter board fixing
bolts seals are found tampered with and artificial means in the form of
sophisticated electric circuit consisting of 2 Nos. DC 12 Volts coils, 1
No.110 V/17 V transformer and 1 No. printed circuit board having No.
SK (NIC-7501) was found connected between the potential wires of Y
& B phases coming from PTs to the test block by meddling thosetential
wires. Besides the above, all the 4 Nos. CT secondary wires
insulation was found removed for about one inch on each wire and
black insulation tape was wrapped around. At that stage, a provisional
assessment of loss of energy caused by the petitioner was assessed
at Rs.7,78,72,081.60 Ps. and the petitioner was directed to pay 50% of
the said provisionally assessed amount for restoration of the power
supply. Questioning this provisional assessment notice, the petitioner
instituted W.P.No.5657 of 1991 in this High Court and that writ petition
was disposed of with a direction to the petitioner to deposit a sum of
Rs.70,00,000/- in four monthly installments of Rs.17,50,000/- each and
upon payment of the 1st installment, the power supply was directed to
be restored. Since the petitioner paid the amount as directed by this
Court in W.P.No.5657 of 1991, the electric energy supply was
reconnected on 06.06.1991. Further, the Superintending
Engineer/Assessment/ Hyderabad, was directed to conclude the
enquiry, preferably, within a period of four months. Thereafter, the
Superintending Engineer/Assessment (Special)/Hyderabad took up
the enquiry. A show cause notice was issued by the Superintending
Engineer/Assessment on 16.04.1991 raising a demand for payment of
Rs.7,61,35,973.80 Ps. towards compensation for pilferage of energy +
Rs.300/- towards supervision charges anddays time was accorded to
the petitioner to make his written submissions. However, after
protracted correspondence, the petitioner requested for copies of
inspection notes and also for arranging inspection of the dismantled
meter box, meter etc., by a team of his Engineers and also sought for
permission for cross-examination of Sri K.S.N. Murthy, Divisional
Engineer, who carried out the inspection of the unit on 19.03.1991, by
his advocate, as also the persons who had disconnected the electric
line on 21.03.1991 and removed the meter board and meter box.
Accordingly, inspection of the dismantled meter box and meter board
was arranged and the petitioner was informed that he could take the
copies of the inspection note, panchanama report, etc., on 20.09.1991.
However, on 20.09.1991, the writ petitioner did not turn up to avail the
opportunity of inspection of dismantled meter box and meter etc. But,
he deputed two individuals by names Sri V.R. Veera Swamy and Sri
K. Prabhakar with necessary authorization to receive the copies of
joint inspection notes and panchanama report. It was informed by
them that they were not authorized to inspect dismantled metering
equipment, but were authorized only to collect the documents.
Accordingly, after furnishing copies of the documents sought for, the
petitioner was granted time to submit written representation by
05.10.1991. However, the petitioner sought for extension of this time
up to 15.10.1991 on the ground that there was curfew imposed in
some parts of Hyderabad city. Finally, a written representation was
submitted by the petitioner on 11.10.1991. The petitioner was
accorded personal hearing in the matter on 02.12.1991. The petitioner
entered appearance through his advocate, Sri D. Manmohan, who
sought for adjournment through a junior counsel on the ground of
indisposition. Accordingly, the matter was adjourned to 16.12.1991.
On that day also, a short adjournment was requested as the counsel
was held up before the Income Tax Appellate Tribunal. Hence,
personal hearing was posted to 19.12.1991. On which day, Sri D.
Manmohan assisted by Sri Khazim Mirza, a retired Divisional Engineer
of the Electricity Board, appeared and made his submissions. The gist
of the contentions canvassed was recorded by the Superintending
Engineer and the signature of the advocate was also taken thereon.
Sri D. Manmohan, learned Advocate for the petitioner, appears to have
requested time till 24.12.1991 to submit written arguments and other
related documents. But, no such written arguments or additional
supporting documents were submitted. Therefore, on 08.01.1992, the
petitioner was informed by the Superintending Engineer that no further
information or documents would be taken into consideration. At that
stage, the written arguments in the matter were submitted on
09.01.1992 and the turnover certificate of the petitioner company was
submitted on 13.01.1992 and they were also taken into consideration
by the Superintending Engineer while finalizing the assessment.
It was contended before the Superintending Engineer that out of
total sanctioned load of 4850 KVA, CMD of 1750 KVA was sanctioned
on 24 hours per day basis and the remaining additional load of 3100
KVA was sanctioned on 8 hours working per day basis. Therefore,
while estimating the consumption of electric energy, it was urged,
erroneously 24 hours working formula has been taken for both the load
factors. The Superintending Engineer, in his assessment order dated
31.07.1992, has clearly pointed out as to how the additional load of
3100 KVA was also consumed by the writ petitioner on 24 hours per
day basis and has also brought out crisply the various dates during the
months of October and December 1987, as to how the petitioner has
paid for additional security deposit for the reason that his unit was
found consuming the additional load for more than 16 hours per day as
revealed by the monthly consumption figures. Thus, the factual
controversy racked up with regard to consumption of 3100 KVA load
has been set at rest.
On behalf of the petitioner, it was also urged that the formula of
levying of penalty at 4 times the normal rate of consumption charge
has been adopted illegally. In the assessment order, it was pointed
out that the petitioner at the time of securing electric energy supply on
10.11.1998 executed the necessary agreement, which is in accord
with Appendix 12 of the revised Terms and Conditions of Supply. As
per condition 39.12.1 of the Terms and Conditions of supply notified by
the Andhra Pradesh State Electricity Board (APSEB) the value of
energy estimated as a result of pilferage of energy shall be charged at
special rates as notified by the Board from time to time. Further as per
Clause 9 of the agreement, the petitioner has agreed to abide by the
Terms and Conditions of supply notified by the Board from time to
time. Therefore, as notified, at that point of time by the APSEB levying
the penalty at the rate of 4 times the normal consumption charges of
energy is perfectly legitimate.
It was also urged that when the meter reading is taken on
monthly basis, the fact that the petitioner has planted an artificial
material behind the meter board would not have gone unnoticed and
hence, the very allegation of pilferage of electric energy is completely
wrong. The Superintending Engineer has rightly pointed out that the
man, who has been tasked to read the meters, would not have had an
opportunity to look for any possible tampering unless there is some
material visible for the naked eye to raise his suspicion. The usage of
sophisticated artificial material to prevent faithful recording of electric
energy consumed came to be detected only on 19.03.1991 when the
matter has been inspected by the Divisional Engineer, who noticed the
seals being tampered. Further, the circuit behind the meter fixing
board could not be seen ordinarily unless the meter board itself is
opened and its back side is examined, is the finding of fact recorded by
the Superintending Engineer in his assessment order. This finding
does not appear to be a perverse one and on the other hand a
plausible one at that. Thus, after properly considering the various
submissions made on behalf of the petitioner, the Superintending
Engineer/Assessment (Special)/Hyderabad held the petitioner guilty of
theft of energy and assessed the resulted loss sustained by the
electricity board on account of pilferage at Rs.6,61,68,347/. While
making a demand for payment of the aforementioned money together
with Rs.300/- towards supervision charges, the Superintending
Engineer granted 30 days time for the petitioner to pay the said
amount.
The petitioner has then filed W.P.No.12620 of 1992, against this
assessment order. Entertaining the said writ petition, this Court
granted stay of further proceedings including disconnection, subject to
the condition of the petitioner depositing a sum of Rs.25,00,000/- on or
before 30.10.1992 and a further sum of Rs.25,00,000/- on or before
30.11.1992. The petitioner has failed to comply with the conditional
order passed by this Court and hence, the service connection for
supply of electric energy was once again disconnected on
20.01.1993. Ultimately, W.P.No.12620 of 1992 was dismissed on
15.10.1993 and the Chief Engineer/the appellate authority was
directed to finalize the appeal preferred by the writ petitioner against
the orders of assessment dated 31.07.1992, within a period of two
months. Thereafter, the petitioner filed W.A.No.1316 of 1993 against
the judgment rendered in W.P.No.12620 of 1992 and finally that
appeal was disposed of on 10.10.2000 with a direction to the appellate
authority to dispose of the appeal. Thereafter, the Chief Engineer has
considered the appeal of the writ petitioner and dismissed the same on
23.10.2001 while holding that the petitioner herein is liable to pay an
amount of Rs.6,55,13,475.80. The order of the appellate authority
dated 23.10.2001 has become final as no challenge was made to it.
Along with the counter affidavit, it was brought out that since the
petitioner has failed to remit the money as determined by the Chief
Engineer on 23.10.2001, the provisions of APSEB (Recovery of Dues)
Act, 1984 and the Rules made thereunder have been invoked and
accordingly, notice in Form-A dated 06.12.2001 was issued
demanding payment of Rs.6,55,13,475.80 within 15 days, failing which
action would be taken to recover the amount due under Section 6 of
the aforementioned Act. Thereafter, since the demand has not
materialized, notice in Form-B on 18.04.2002 was also issued
intimating that a further penalty of 2% per month on the amount due
becomes liable to be recovered in terms of sub Section 2 of Section 3
of the aforementioned Act and accordingly, a total amount of
Rs.6,68,23,745/- due as of then has been demanded by this Form-B
notice. Since the petitioner has not paid the said amount, the
necessary certificate was issued to the District Collector, Medak
District at Sangareddy on 23.08.2002 with a request to invoke the
provisions of Revenue Recovery Act for recovering the arrears from
the petitioner. For strange and inexplicable reasons, the District
Collector, Medak has allowed the claim to hibernate. Based upon the
intimation delivered in Form-C, the Deputy Tahsildar, through his
notice dated 18.09.2014, called upon the petitioner to pay up the
Electricity Board dues, failing which, the provisions of Revenue
Recovery Act would be invoked, treating the dues as arrears of land
revenue in terms of Section 52-A of the Revenue Recovery
Act. It is this notice which triggered the present writ petition.
Heard at great length Sri Devineni Vijay, learned senior counsel
on behalf of Ms. D. Hamsa Devineni, the learned counsel for the
petitioner, and Sri O.Manohar Reddy, learned standing Counsel on
behalf of the 4th respondent-Superintending Engineer, who was
impleaded, as such, on 17.11.2014.
Sri Devineni Vijay, learned senior counsel for the petitioner,
would submit that the writ petitioner has been subjected to the ordeal
of prosecution in C.C.No.1239 of 1997 and the Additional Judicial
Magistrate of First Class, Sangareddy, by his erroneous judgment
dated 21.04.1999, convicted the accused Nos.1 to 5 in that case. But,
however, when the matter was carried in appeal in Crl.A.No.64 of 1999
on the file of Special Sessions Judge for Trial of Offence under SC/ST
(Prevention of Atrocities) Act-cum-V Additional District & Sessions
Judge, Medak, the learned Sessions Judge by his judgment dated
09.11.2006, rightly acquitted the accused and allowed the appeal. It
was also further pointed out by the learned senior counsel that the
State has further carried the matter in Crl.A.No.721 of 2008 and this
Court by its judgment dated 14.11.2011 dismissed the said appeal
confirming the acquittal accorded on merits by the learned Sessions
Judge. Therefore, it is contended that, the petitioner cannot be
victimized by making a demand for payment of more than Rs.6.5
crores for the alleged pilferage of electric energy, which did not
happen at all. It is contended that any action to allow the respondents
to recover any such money, based upon an erroneous assessment
made by the Superintending Engineer, as confirmed in the appeal by
the Chief Engineer, be a patently illegal act in the face of findings
recorded by the criminal Court.
Per contra, Sri O.Manohar Reddy, learned Standing Counsel
has pointed out that Clause 39.15 of the revised Terms and Conditions
of Supply, by which the writ petitioner is bound authorized the Board to
recover the pilferage charges. Clause 39.15 of the Revised Terms and
Conditions of supply reads as under:
"Neither failure to launch criminal proceedings nor the
acquittal of the consumer in such proceedings on a
ground other than that the charge is false shall bar the
proceedings under the provision stipulated therein."
(Underlining is My Own)
And based thereon, it is contended that recovery of penalty for
the energy pilferage is a legitimate exercise.
It is true that the Terms and Conditions of electric supply made it
clear that neither failure to launch criminal proceedings for pilferage of
energy nor acquittal of the consumer in such proceedings on any other
ground than that the charge is false shall bar the proceedings for
recovery of the charges for pilfered energy. Therefore, the all important
question that is required to be answered is whether the petitioner has
been acquitted on the ground that the charge laid against him is a false
one or not. If he is so acquitted then the contention canvassed by the
learned Senior Counsel for the petitioner deserves to be upheld.
The judgment of the learned Sessions Judge, which is placed
at page No.32 of the writ petition paper book, in Para 20, the Sessions
Court, in the ultimate analysis, recorded its finding as under:
"...In this connection, the defence counsel relied on a
decision reported in AIR 1966 SC 849 in Jagannath
Singh @ Jainath Singh vs. B.S. Ranmaswamy
wherein, it is held that:-
A check meter affords an easy method of
proving that the consumer's meter is recording
less than the units consumed and is being
used as an artificial means for abstraction of
the unrecorded energy. To bring home the
charge under S 39 the prosecution must also
prove that the consumer is responsible for the
tampering.
In the present case, the prosecution has not use the
check meter method to know whether really there is
abstraction of energy, despite the fact that the check
meter was present and it was recording correctly as
reflected in the daily log sheets marked as Exs.C1 to
C8. So the above-cited judgment is clearly
applicable to the present case.
19. Further, the trial court has already stated in its
judgment that the APSEB officials were shown
callous and careless attitude in obtaining the seals of
the meter every month so mechanically without
giving due diligence about the aspect of possibility of
tampering the meters. The officers who record the
consumption every month and who opens the seals
every month is not like lineman. They are well
educated and having sufficient technical knowledge,
they are supposed to pay attention even while
recording the monthly consumption and while
opening the seals. A simple statement that due to
rush of work he could not notice as to the tampering
of seals is not sufficient.
20. The learned PP argued that on the basis of the
evidence of PPWs 1 to 15 and especially on the
basis of the evidence of PW 14 who is an expert, it
clearly goes to show that the accused have
committed the pilferage of energy. He further stated
that though the seals were in tact in the meter box
there is possibility for pilferage of energy by the
accused through a remote controller and the
prosecution has successfully proved the guilt of the
accused and the accused are liable for conviction.
But for the above, my answer is that it is the duty of
the prosecution to seize the said remote controller
from the accused. But here in this case, the
prosecution has not recovered any remote controller
from the accused and hence it has failed to establish
that the accused has committed pilferage of energy
with a remote controller.
(Underlining is brought out by me)
21. For the foregoing reasons given by me and
in view of the evidences of Pws1 to 7 and on the
basis of the citation relied upon, I come to the
conclusion that when the seals are intact, there is no
possibility of pilferage of energy by the accused.
Hence I answer this point accordingly in favour of the
accused and against the prosecution.
22. In the result, this appeal is allowed by setting
aside the conviction and sentence passed by the
learned Addl. Judl. Magistrate of First Class,
Sangareddy in C.C.No.1239 of 1997 dated 21-4-
1999."
It is also worth noticing the judgment rendered by this Court in
Crl.A.No.721 of 2008, wherein it was clearly held as under:
"................ If the electronic gadget had been
noticed during the inspection in question, there is no
reason as to why it escaped the attention of the
concerned during the earlier visits, which of course
was attempted to be explained away by the trial
Court by a process of strained reasoning. While the
report of PW.14 was admitted even PW.14 is not
supported by reasons, which were sought to be given
during the evidence of PW.14 that if excessive
pressure is used, the seal bit may appear to be
flattened and the impression on the seal depends on
the pressure used by the hand. The manner in which
PW.14 came to his conclusion was about the
possibility of flattening of bits, loosening of wire,
reintroduction of the wire and repressing of the same
and in equating such a possibility with certainty, the
principle that an accused in a criminal case is
presumed to be innocent until the contrary is proved
was clearly given a go bye. The possibility suggested
by PWs.13 and 14 coupled with the evidence of the
persons, who participated in the inspection, might be
capable of creating very strong doubts about the
complicity of the accused, but they cannot be
equated to any legal proof beyond reasonable doubt
without an unambiguous answer to the fundamental
question as to how any tampering with the meter or
any pilferage of energy or any manipulation of the
readings would have been possible, when admittedly
the seals were in tact and there was no possibility of
pilferage even according to PW.1 and when any
remote control device was not recovered at the
scene or produced before the Court and when the
operation of the electronic gadget said to have been
found in the photographs was not shown to be the
cause for the alleged pilferage. Under the
circumstances, the benefit of doubt given to the
accused by the appellate Court cannot be interfered
with and the possibility of taking a second view on the
evidence by itself cannot be a ground to interfere with
an acquittal by a final fact finding Court on merits
unless its appreciation is perverse and baseless.
Therefore, the Criminal Appeal should fall and it is
accordingly dismissed."
(Emphasis is supplied)
From this it becomes more clear that the petitioner herein has
been acquitted by the learned Sessions Judge by extending the
benefit of doubt, but not on the ground that the charge laid against the
petitioner herein is a false one. This Court has understood the
judgment of the Sessions Court as such and extended the benefit of
doubt to the accused. It is only appropriate to bear in mind that the
petitioner herein is Accused No.1 in the criminal case. It is therefore
clear that the recovery proceedings for the pilfered electric energy are
not barred against the petitioner, particularly, in view of Clause 39.15
of the revised Terms and Conditions of supply of electric energy.
It is also apt to remember that the act of pilferage of electric
energy attracts two different and distinct components. Theft of electric
energy has come to be recognized as an offence and consequently,
any person who has been accused of committing such an offence,
becomes liable to be prosecuted and punished. Electric energy which
is pilfered also needs to be paid for which is purely a civil
consequence and hence as to how much energy has been pilfered
and as to how much of penalty should be levied for such a
misdemeanor are components which attract purely civil consequence.
Therefore, the same act of pilferage of electric energy may have
several facets to be taken note of and dealt with. If the Criminal Court
upon proper consideration of the material/evidence arrives at a
conclusion that the charge of theft of electric energy is a false one, in
such a situation, the question of determining the quantum of energy
pilfered would not arise. Consequently, levying and penalty gets ruled
out. Otherwise than the ground of laying a false charge, any other kind
of acquittal would not come to the aid of the consumer. Hence, the
failure of the prosecution to establish the guilt of the petitioner before
competent criminal Court would not automatically enure to the benefit
of the petitioner to avoid the civil consequences arising from out of the
act of pilferage of electric energy. This apart, the standard of proof
normally adopted by the criminal Court is proof beyond all reasonable
doubt. If a doubt persists in the mind of the Court as to whether the
accused person has actually committed the offence alleged against
him or not, then, the Criminal Court would acquit such an accused
person and let him go unpunished, whereas for purpose of finalizing
the quantity of pilfered energy, a standard procedure and method has
been evolved and as per that method the penalty becomes liable to be
imposed by the competent authority. Accordingly, in the instant case,
the Superintending Engineer/ Assessment (Special)/Hyderabad, by
his proceedings dated 31.07.1992, has made an assessment that the
petitioner is liable to pay a sum of Rs.6,61,68,347/- towards pilfered
energy component. In appeal preferred by the petitioner, the Chief
Engineer, while dismissing the appeal has reduced the said amount to
that of Rs.6,55,13,475.80 and this order in appeal of the Chief
Engineer, has not been challenged by the petitioner and hence, it has
attained finality. Since the petitioner has accepted the said order by not
calling it in question there is no escape for the petitioner from paying
up the said amount.
Now comes the crucial question raised by Sri Devineni Vijay,
learned senior counsel, who contended that the amount determined by
the Chief Engineer on 23.10.2001 having not been acted upon, no
such money can be recovered, as any such claim is barred by
limitation. It was also further contended that the provisions of the
Revenue Recovery Act cannot be invoked at all for recovering the
dues from the petitioner.
In so far as the contention relating to the applicability of the
provisions of the Revenue Recovery Act, it is only appropriate to notice
the fact - as pointed out by Sri O. Manohar Reddy - that the State
Legislature enacted the Andhra Pradesh Electricity Board (Recovery
of Dues) Act, 1984, Act No.28 of 1984. Section 2(2) of this Act defined
dues as meaning a sum payable to the APSEB on account of
consumption of electric energy supply including the minimum charges
payable after disconnection and other charges payable under the
terms and conditions of supply. The expression debtor is defined in
Section 2(2) of this Act as meaning any consumer or other person by
whom any dues are payable to the APSEB. Accordingly, the writ
petitioner being a consumer of electric energy and having fallen in
arrears of payment of consumption charges of electric energy together
with the penalty imposed thereon under the terms and conditions of
supply, answers the description of debtor and the sum payable by him
becomes 'dues'. Subsection (1) of Section 3 of this Act required a bill
to be raised on the debtor in the prescribed form specifying the amount
of dues and the date by which such dues are required to be paid.
Along with the counter affidavit, the notice issued in Form-A, as
prescribed vide Rule 4(1) of the Andhra Pradesh Sate Electricity Board
(Recovery of Dues) Rules, 1985, has been raised on 06.12.2001
requiring full settlement of dues within 15 days from the date of receipt
of the said notice. Subsection 2 of Section 3 further made it clear
that if the dues are not paid by such date, the debtor shall be liable to
pay in addition such penalty as may be prescribed. Sub-rule (2) of
Rule 4 clearly laid down that the penalty leviable is at the rate of 2%
per month or part thereof for the delay beyond the due date.
Section 5 of this Act spelt out that when a notice of demand has
been served upon a debtor or his authorized representative, and if he
denied his liability to pay the dues, penalty or costs or any part of any
of them, he may institute a suit within six months from the date of
service of the notice of demand. Thereafter, Subsection (1) of Section
6 of this Act made it clear that if the aggregate amount of dues, penalty
and costs is not paid within three months of the date of service of
notice, or such extended period the prescribed authority may from time
to time allow, the debtor shall be continued to be in default in respect
of such amount and the same shall be recoverable as if it were in
arrears of land revenue, notwithstanding anything to the contrary
contained in any other law for the time being in force. It is, therefore,
clear that if a debtor commits default of clearing the dues, such a
debtor is deemed as a defaulter in respect of such amount and the
same becomes liable to be recovered as if it were in arrears of land
revenue. In this context, it will be appropriate to notice that Entry No.38
of List III of the VII Schedule to the Constitution dealt with the field of
'Electricity' and consequently, the State Legislature has the
competence to make laws with respect to the matters concerning
recovery of consumption charges, including any penalty leviable for
pilferage of electricity.
So long as no inconsistency is demonstrated between a
parliamentary enactment and the provision contained under
Subsection (1) of Section 6, this enactment which provides for treating
the dues of the writ petitioner herein as arrears of land revenue, shall
hold the field.
The learned Senior Counsel has drawn my attention to the
various provisions of the Electricity Act, 2003, Act No.36 of 2003, in
support of his plea that the impugned action is not in conformity with
the provisions of this enactment.
The Indian Electricity Act, 1910, created the basic framework for
electric supply industry. It provided for licenses to supply electricity in a
specified area. The said Act also created appropriate legal framework
for laying down of wires and other works relating to the supply of
electricity. The Electricity (Supply) Act, 1948, called for creation of a
State Electricity Board and to entrust it with the responsibility of
arranging the supply of electricity in each State. After each State
established electricity boards, a phenomenal growth of infrastructure
relating to generation, transmission and supply of electricity was
noticed. However, when the performance of electricity boards has
been reviewed, it was noticed that some of the decisions taken by the
boards, particularly, such as fixation of tariff were found to be lacking
any professional approach. There was also growing dependence of
the Boards on the support of the State Governments. With a view to
address this particular issue and also for distancing the respective
State Governments from determination of tariffs, the Electricity
Regulatory Commissions Act, 1998 was brought in. However, some of
the States, starting with the State of Orissa including Andhra Pradesh,
have undertaken wholesome reforms and for achieving the same,
broughtforth Reforms Act through the respective State Legislatures.
These reforms have brought forth unbundling of the State Electricity
Boards into separate generation, transmission and distribution
companies. With a view to harmonize and rationalize the provisions
contained in the Indian Electricity Act, 1910, the Electricity (Supply)
Act, 1948 and the Electricity Regulatory Commissions Act, 1998, the
Parliament enacted the Electricity Act, 2003 to bring forth a self-
contained comprehensive legislation taking care of all relevant
aspects. By Section 185 of the Electricity Act, 2003, the Indian
Electricity Act, 1910, the Electricity (Supply) Act, 1948, Electricity
Regulatory Commissions Act, 1998 are repealed. Subsection (2) of
Section 185 of Electricity Act, 2003, saved from such repeal anything
done or any action taken including any inspection, order or notice
made or issued under the repealed laws shall, in so far as the same is
not inconsistent with the provisions of this Act, be deemed to have
been done or taken under the corresponding provisions of this Act.
The provisions of Section 1 to 120 and 122 to 185 of this Electricity
Act, 2003, have been brought into force on 10.06.2003. Learned
Senior Counsel would point out that under Section 56 of the Electricity
Act, 2003, only disconnection of supply for default of payment is
contemplated. It was also pointed out that Section 126 prescribed as to
how, if on an inspection of any place or premises or after inspection of
the equipments, gadgets, machines, devices found connected or used
and if 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 and also provide for a detailed procedure in that regard.
Under Section 127 of this Act, a provision to prefer an appeal to
an Appellate Authority to any person aggrieved by a final order made
under Section 126 is provided. Section 135 of this Act recognized theft
of electricity as an offence punishable with imprisonment for a term
which may extend to three years or with fine or with both and Section
138 also recognized any unauthorized interference with meters or
works of a licencee as an offence punishable with imprisonment for a
term which may extend to three years or with fine which may extend to
Rs.10,000/- or with both and under Section 143 for purposes of
adjudging the cause, the Appropriate Commission shall appoint any of
its Members to be an adjudicating officer for holding an enquiry, after
giving any person concerned a reasonable opportunity of being heard
for purposes of imposing any penalty. Section 147 has also
specifically recognized that the penalties imposed under this Act shall
be in addition to, and not in derogation of any liability in respect of
payment of compensation. It was next contended that under Section
153 of this Act, the State Government was required to constitute as
many Special Courts as may be necessary for speedy trial of offences
prescribed under Section 135 to 140 and Section 150 of the Act. The
procedure and power of the Special Courts has been spelt out in detail
in Section 154. The learned Senior Counsel would place reliance
upon Subsection (5) of Section 154 which spelt out that the Special
Court shall determine the civil liability against a consumer in terms of
money for theft of energy which shall not be less than an amount
equivalent to two times of the tariff rate applicable for a period of twelve
months preceding the date of detection of theft of energy and the
amount of civil liability so identified shall be recovered as if it were a
decree of Civil Court. Therefore, it is contended that only by taking
recourse to a Special Court constituted by the State Government
under Section 153, the recovery can be affected in the matter.
The learned Senior Counsel would also point out that under
Section 170 of this Act any penalty payable by a person under this Act,
if not paid may be recovered as if it were in arrear of land revenue. It
was also urged by the learned Senior Counsel that by virtue of Section
173 and 174, the provisions of this Act have been given primacy and
they shall prevail over any other law for the time being in force.
It is appropriate to notice that Sections 173, 174 and Subsection
(2) of Section 185 when read together, it clearly emerges that the
provisions of the Electricity Act, 2003 will have primacy if there is
anything inconsistent contained in any other law for the time being in
force. As pointed out supra, the provisions contained in the Andhra
Pradesh Electricity Board (Recovery of Dues) Act, 1984, are no way
inconsistent with the provisions of the Electricity Act, 2003, nor does
Section 52-A of the Andhra Pradesh Revenue Recovery Act, 1864,
can be construed as inconsistent with Section 153 of the Electricity
Act, 2003. Hence, there is no necessity for the respondents to initiate
the proceedings all over under this Act.
Section 52-A has been introduced to the A.P. Revenue Recovery
Act, 1864, by the State Amending Act No.18 of 1977. This provision
authorized recovery of sums due to certain banks and other public
bodies as arrears of land revenue. If public corporations are left to a
remedy of a civil suit the recovery is bound to be delayed considerably.
It is with the object of avoiding the unusual delay which normally takes
place in the civil courts the expeditious remedy by enacting Section
52-A has been provided. In this context, it is appropriate to notice that
the Supreme Court in State of Tamil Nadu vs. G.N. Venkataswamy
and others , while reversing the judgment of the Madras High Court
held that the Tamil Nadu Legislature could enact a similar provision -
which was also incidentally numbered as Section 52-A - of Tamil
Nadu Recovery Act, under Entry 11-A of List III of the Seventh
Schedule to the Constitution in the following words, after considering
the earlier judgment of Constitution Bench in State of Bombay v.
Narothamdas Jethabai (1951 SCR 51):
"12. It is no doubt correct that with the coming into
force of Entry 11-A List III it is no more the exclusive
power of the State Legislature to legislate under the
said entry but "administration of justice" and
"constitution and organization of all courts" are the
subjects on which the State Legislature can legislate.
These expressions have been authoritatively
interpreted by this Court in Narothamdas case. It is,
therefore, settled that under Entry 11-A the State
Legislature has the power to make laws thereby
enlarging or reducing the powers of the Courts. The
State Legislature can create new courts, recognize
the existing courts, provide jurisdiction to the said
courts and also take away the existing jurisdiction if it
so desires. We, therefore, see no reason why a State
Legislature cannot confer additional jurisdiction on
existing revenue courts to recover any public dues
as arrears of land revenue."
Again after noticing the principles enunciated in Associated
Cement Companies Ltd v. P.N. Sharma (AIR 1965 SC 1595) and
Dev Singh v. Registrar, Punjab and Haryana High Court [1987 (3)
SCC 169], it was further held by the Supreme Court as under:
"15. The Collector exercises powers under the Act
which is an Act of the State Legislature. He is
invested with the power to decide the controversy
between the State and the defaulter. There is in
existence a lis between the State and the defaulter.
There is assertion and denial. The dispute involves
the rights and obligations of the parties which are
decided by the Collector. The Collector has the
power to sell movable and immovable property of the
defaulter. He can even arrest and detain the person
up to a period of two years. All these powers of the
Collector are the judicial powers of the State. The
only conclusion which can be drawn is that the
Collector under the Act is a revenue court. Once it is
held, as we have, that the Collector is a revenue
court then there is no difficulty in holding that Section
52-A of the Act was enacted by the Tamil Nadu
Legislature under Entry 11-A List III
Schedule 7 Constitution of India."
A full bench of the Andhra Pradesh High court, when called upon
to decide whether only loans and advances made by corporations can
be recovered under Section 52-A of the Revenue Recovery Act, but
not other sums due, the full bench speaking through Justice Syed
Shah Mohammed Quadri, answered the said question in C.J. Raju vs
The State of Andhra Pradesh rep. by the District Collector and
ors. in the following words:
"..........We are unable to make a distinction between
"sums due to State-owned corporations on account
of other transactions" and "sums due to State-owned
corporations on account of loans and advances
made by them". Both, in our view, stand on the same
footing as State-owned corporations, being public
bodies, while recovering either categories of dues,
are recovering only public dues......."
Therefore, the contention canvassed by Sri D. Vijay that the
provisions of the Revenue Recovery Act cannot be invoked is liable to
be repelled.
The learned Senior Counsel would point out that even if it is
assumed that the dues are recoverable from the petitioner, it is barred
by limitation, when the period is so computed from the date the Chief
Engineer has passed final order of adjudication. The learned Senior
Counsel would urge that as per Entry No.113 of the I deviation of the
schedule appended to the Limitation Act, 1963, the period of limitation
prescribed is only three years when the right to sue accrues. On the
strength and basis of the above, he would urge that the recovery
proceedings now initiated shall be quashed.
In this context, it is only appropriate to notice that Clause
39.15 of the terms and conditions of supply, by which the petitioner is
bound, has clearly brought out clearly that the acquittal of consumer in
criminal proceedings on a ground other than the charge is false shall
not bar the proceedings for recovery of the dues. It is, therefore,
essential, when a criminal prosecution is launched by the State
against the petitioner, the respondents are required to await the result
thereof. If a consumer stands acquitted by the Criminal Court on the
ground that the charge laid against him is a false one, no dues can be
recovered at all from such a consumer. Therefore, even if an
assessment of the liability is made either prior to the launching of the
prosecution or during the course of its pendency, incidence of accrual
of the actual recovery has to necessarily wait for a decision to be
rendered by the Criminal Court in the matter. If, ultimately, the Criminal
Court were to hold that the charge held against the consumer that he
has pilfered electric energy is a false one, then, in such an event, even
if the liability of the consumer has already been determined by the
competent authority, but nonetheless, such amount cannot be
recovered. Even if the amount as determined by the Superintending
Engineer is recovered, if the Criminal Court were to declare the charge
of pilferage as a false one later on, then, perhaps, the amount so
recovered would become liable to be refunded. The choice of
recovering first with a prospect to refund it later lies with the Board, but,
it is a matter of discretion to be exercised. Hence, the cause for
recovery of dues determined by the Superintending Engineer or Circle
Engineer, gets deferred till the Criminal Court decides the case. It is no
doubt true that the petitioner herein being the first accused in
C.C.No.1239 of 1997 was convicted by the learned Additional Judicial
Magistrate of First Class, Sanga Reddy on 21.04.1999, but
nonetheless, the said judgment of conviction was the subject matter of
appeal in Crl.A.No.64 of 1999 and the learned Sessions Judge by his
judgment dated 09.11.2006 allowed the criminal appeal and acquitted
the petitioner and the other accused. It will be further interesting to
notice that against the judgment of the learned Sessions Judge, the
State carried the matter in further appeal in Crl.A No.721 of 2008 under
Section 378 Cr.P.C. That was decided by this Court on 14.11.2011,
making it explicitly clear that the accused in the crime were acquitted
by extending benefit of doubt, but not because the charge laid against
them is a false one. It is only appropriate to notice the principle spelt
out under Section 393 Cr.P.C, that, judgments and orders passed by
an Appellate Court upon an appeal shall be final, except in the cases
provided for in Sections 377, 378, 384(4) or Chapter XXX of Cr.P.C.
Therefore, the right to recover the dues as determined by the
Superintending Engineer in the instant case, which order has been
affirmed by the Circle Engineer in appeal preferred by the petitioner
herein, accrued only after the judgment was rendered by this Court on
14.11.2011 in Criminal Appeal No.721 of 2008. The impugned notice
is drawn and served on the petitioner herein on 18.09.2014 and this
writ petition is instituted on 15.10.2014, thus, well within the 3 year
period reckoned from the date the judgment was rendered by this
Court in Criminal Appeal No.721 of 2008 affirming the acquittal of the
petitioner herein and other accused persons extending the benefit of
doubt in their favour. Therefore, the three year period of limitation thus
reckoned, having not expired, the petitioner cannot successfully urge
that the recovery of the dues from him by the respondents is barred by
limitation.
I could find no merit in any of the contentions canvassed in this
writ petition and it is accordingly dismissed with costs quantified at
Rs.5,000/- payable to the fourth respondent.
Consequently, miscellaneous applications pending shall also
stand dismissed.
_______________________________________
JUSTICE NOOTY RAMAMOHANA RAO
17.04.2015
ska/sp
note: LR copy to be marked
b/o
sp
AIR 1995 SC 21
(1994) 5 Supreme Court Cases 314
