1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.12.2011 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)Nos.13896 and 13897 of 2011 and M.P.(MD)Nos.1 and 1 of 2011 J.Kumaresan : Petitioner in both WPs vs. 1.The Superintending Engineer, Tamil Nadu Electricity Department Corporation, (TEDC)/Metro, Trichy. 2.The Assistant Executive Engineer, Operations and Maintenance, TANGEDCO, Samayapuram. 3.The Assistant Executive Engineer, Enforcement Wing, TANGEDCO, Trichy. : Respondents in both WPs Writ Petitions filed under Article 226 of the Constitution of India, praying for the issue of Writs of Certiorarified Mandamus, calling for the records of the second respondent in proceedings bearing Lr.Nos.AEE/O&M/SPRM/F.ENFORCEMENT/D./No.359/11 dated 17.11.2011 and Lr.No.AEE/O&M/SPRM/F.ENFORCEMENT/D./No.366/11 dated 17.11.2011 and quash the same and consequently direct the respondents to restore the electricity service connection in L.T.S./C.No.111/'T'f-IV and L.T.S./C.No.-/'1'f-IV to the petitioner's lands. For Petitioner in both WPs : Ms.J.Maria Roseline For Respondents : Mrs.S.Srimathy for Mr.S.M.S.Johnny Basha, Standing Counsel for TNEB. C O M M O N O R D E R The petitioner has come up with the above writ petitions, challenging the provisional assessment orders dated 17.11.2011 passed by the third respondent, under Regulation 23-AA of the Tamil Nadu Electricity Supply Code, 2004 read with Section 135 of the Electricity Act, 2003, in respect of two agricultural service connections that the petitioner has. 2. Heard Ms.J.Maria Roseline, learned counsel for the petitioner and Mrs.S.Srimathy, learned counsel representing Mr.S.M.S.Johnny Basha, Standing Counsel for respondents. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The petitioner has two electricity service connections for agricultural purposes. One is in respect of a land in Survey No.598/1, where a 5 HP Motor has been installed. It is a Low Tension Service Connection bearing LT SC No.111. Another is in respect of the same land, where a 7.5 HP Motor is installed. The service connection for the same bears the number L.T.S/C No.-/'1'f-IV. 4. On 16.11.2011, there was an inspection of the lands of the petitioner by the respondents 2 & 3 and the petitioner was accused of committing theft of energy, by using the agricultural service connection for taking water to the adjoining College and Hostel. In the land adjoining the petitioner's lands, there is a Catering College, a Polytechnic and a Teacher Training Institute. It appears that the petitioner/his father owns those Colleges or at least a member of the Managing Committee. 5. After the inspection, the respondents immediately disconnected the electricity supply and slapped two orders of provisional assessment dated 17.11.2011, calling upon the petitioner to pay compensation charges of Rs.2,89,275/- and Rs.4,33,905/- respectively. However, the orders of provisional assessment also gave an opportunity to the petitioner to file objections, if any, against the provisional assessment and to appear in person for an enquiry by the third respondent. 6. But without availing the opportunity so granted, the petitioner has come up with these writ petitions, challenging the provisional assessment as contrary to the provisions of the Act and as without jurisdiction. 7. The primary contention of the learned counsel for the petitioner is that once an allegation of theft of energy is made against a person in terms of Section 135 of the Act, the only alternative available to the respondents is to prosecute him before a Criminal Court. Section 135 does not provide for assessment. Alternatively, it is open to the respondents to take recourse to the procedure prescribed under Section 126 for unauthorised use of electricity. If the respondents take recourse to Section 126, the petitioner has several alternatives, such as the one provided by Section 56 or the options provided by Section 126 itself to make payment of part of the amount and contest the assessment. But by taking recourse to Section 135, the respondents have disconnected the supply forthwith and made a demand, under Section 135 without falling back upon Section 126. This, according to the learned counsel, makes the impugned order wholly arbitrary and not in accordance with law. 8. In order to test the correctness of the above contentions, we may have to take note of some of the provisions of the Act and the Supply Code. The Act deals with two types of situations. One relates to unauthorised use of electricity, for whatever reason, which may not strictly amount to theft of energy. Another is a theft of energy which would naturally include an illegal and unauthorised use of energy. Both these provisions have been kept as distinct and different from one another, for various purposes. While there can be no prosecution, if a person is charged with unauthorised use under Section 126, it cannot be said that there can be no assessment if a person is charged under Section 135. https://hcservices.ecourts.gov.in/hcservices/ 3 9. I do not have to go deep into the distinction between the Sections 126 and 135, as they have been dealt with by the Supreme Court in a recent decision rendered in Executive Engineer vs. Seetaraman in C.A.No.8859 of 2011 dated 20.10.2011. 10. A perusal of Section 126 shows that if a person is alleged to have used the energy unauthorisedly, the respondents are entitled to follow the following procedure:- (i) The respondents shall provisionally assess, to the best of his judgment, the electricity charges payable by such person, under the sub- section (1). (ii) The order of provisional assessment is to be served upon the person in occupation under sub-section (2). (iii) The person on whom the order is served, is entitled to file objections in terms of sub-section (3) and after giving a reasonable opportunity of hearing to such a person, the Assessing Officer is entitled to pass a final order. (iv) The person served with the order of provisional assessment has the option to accept the assessment and deposit the assessed amount, within 7 days. (v) If the Assessing Officer finds that the unauthorised use has taken place, the assessment shall be in relation to the whole of the period or limited to a period of 12 months immediately preceding the date of inspection. (vi) The assessment under Section 126 is to be at a rate equal to twice the tariff. 11. The expression "unauthorised use of electricity" is defined in Clause (b) of the Explanation under Section 126. It reads as follows:- “(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 of 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 authorised.” 12. A perusal of Section 126 and the definition of the expression "unauthorised use of electricity" appearing in Clause (b) of the Explanation under Section 126 shows that even the tampering of a Meter or the usage of electricity for a purpose other than the one for which it was sanctioned, may also fall under Section 126. In other words, every case of theft may be covered by Section 126, but not vice versa. 13. But in so far as the theft of energy is concerned, it is seen from sub-section (1) of Section 135 that the sine qua non for accusing a person of committing theft, is his dishonest intention. While sub-section (1) of Section 135 gives a list of the acts of omission and commission which may amount to theft of energy and it also provides the punishment for such theft, sub-section (2) authorises the Officer of the Licensee to search and seize any books and documents from the premises of the person who is charged with theft. Sub-section (3) provides for the preparation https://hcservices.ecourts.gov.in/hcservices/ 4 of a mahazar and sub-section (4) makes the Code of Criminal Procedure applicable to the searches and seizure under the Act. While sub-section (1) to (4) of Section 135 do not give a clue about any assessment, sub- section (1-A) fills up the gap that was available in Section 135 earlier. Sub-section (1-A) of Section 135 reads as follows:- “(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: Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity: Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection: 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.]” 14. What is absent from the sub-sections (1) to (4) is to be found in the third proviso to sub-section (1-A). But for the third proviso to sub-section (1-A), the question of assessment would not have arisen. 15. Apart from the above distinction, one more important aspect cannot be lost sight of. The focus of Section 126 is the recovery of probable consumption charges along with the penalty, if any, imposed under sub-section (6). The scope of sub-section (1-A) of Section 135 is the restoration of electricity supply. While Section 126 enables the consumer to prevent the disconnection of electricity, Section 135 (1-A) enables the consumer to have restoration of supply. Prevention of disconnection is distinct and different from seeking restoration. Restoration of electric supply falls under a different category than prevention of disconnection. While Section 126 is about the prevention, Section 135 is about cure. Therefore the contention that an assessment even in cases arising under Section 135 should fall under Section 126, cannot stand in the light of sub-section (1-A) of Section 135. 16. We must also take note of two important provisions of the Supply Code. One is in Regulation 19 and another is in Regulation 23-AA. The Supply Code was issued by the Tamil Nadu Electricity Regulatory Commission in exercise of the power conferred by Section 50 read with Section 181 of the Act. Therefore, the Code has statutory force. The fact that every consumer is bound not only by the provisions of the Act, but also by the provisions of the Supply Code and Distribution Code, cannot be denied. While Regulation 19 elaborates the procedure prescribed under https://hcservices.ecourts.gov.in/hcservices/ 5 Section 126, Regulation 23-AA provides the procedure for assessment in case of theft of energy. 17. A careful reading of Regulation 23-AA would show that the procedure prescribed for assessment of the value of the loss suffered by the Licensee on account of theft of energy committed by a consumer is almost on identical lines with the procedure prescribed by Section 126 and Regulation 19 of the Supply Code. But it must be remembered that the former is for the purpose of preventing disconnection and the latter is for the purpose of enabling restoration. Every time a request is made for restoration, the Licensee is entitled to impose additional conditions as seen from several provisions of the Act. 18. The contention of the learned counsel for the petitioner is that the power to make an assessment under the third proviso to sub- section (1-A) of Section 135, has to be in accordance with the provisions of the Act. The only provision in the Act providing for assessment is under Section 126. Therefore, it is the contention of the learned counsel that if the respondents want to invoke Section 135 (1-A) for making an assessment, they have to fall back only upon Section 126 and not upon Regulation 23-AA. It is the further contention of the learned counsel for the petitioner that the very charging of twice the amount indicates the invocation of Section 126(6). 19. But the above contentions are legally misplaced. The power to impose twice the charges can also be traced to Regulation 23-AA(7). Therefore, what can be done in matters of unauthorised use, can also be done in the case of theft of energy. Under such circumstances, the objection to the provisional notice on the ground that the assessment does not follow the procedure prescribed by law, cannot stand. Therefore, the writ petition is bound to fail and the only remedy open to the petitioner is to file objections to the provisional assessment and participate in an enquiry. 20. Though the learned Standing Counsel for the Electricity Board submitted that a final assessment order has also been passed on 23.11.2011 and also served on the representative of the petitioner and that the only remedy now open to the petitioner is to file an appeal to the Tribunal at Delhi under Section 111, I do not think that the same need to be taken note of for one reason. The provisional assessment orders impugned in these writ petitions are dated 17.11.2011. Though the signature of the third respondent bears the date 16.11.2011, the date 17.11.2011 is indicated on top of the impugned communication. Paragraph . 05 of the impugned orders gives an opportunity to the petitioner to send his objections within 7 days of receipt of the order. Even if the petitioner is deemed to have received the impugned order on the same date viz., 17.11.2011, he had time upto 24.11.2011 to file objection. Therefore, the final assessment orders could not have been passed on 23.11.2011 even before the expiry of the period of 7 days. 21. Therefore, the writ petitions are disposed of, permitting the petitioner to submit his objections, on or before 21.12.2011 to the third respondent. The third respondent shall fix a date for personal hearing and intimate the same to the petitioner. On the date fixed by the third respondent, the petitioner shall appear and present his case along with https://hcservices.ecourts.gov.in/hcservices/ 6 the supporting documents. Thereafter, the third respondent may pass a final assessment order in accordance with the provisions of the Act and the Code after verifying the ownership of the adjoining Colleges and the involvement of the family members of the petitioner in the management of those Colleges. It should be borne in mind that when more than a lakh of farmers have committed suicide on the one hand, rich people enjoying agricultural service connections and using them for commercial purposes such as Private Colleges, can hardly be encouraged by a Court of Law. 22. Therefore, the writ petitions are disposed of on the above terms. No costs. Consequently connected miscellaneous petitions are closed. It will be open to the petitioner to make payment of the entire demand made under both the impugned orders for restoration of service connection. Svn Sd/- Assistant Registrar[CO] /True copy/ Sub Assistant Registrar To 1.The Superintending Engineer, Tamil Nadu Electricity Department Corporation, (TEDC)/Metro, Trichy. 2.The Assistant Executive Engineer, Operations and Maintenance, TANGEDCO, Samayapuram. 3.The Assistant Executive Engineer, Enforcement Wing, TANGEDCO, Trichy. +2cc to M/s.Sribalaji, Advocate Sr.No.43505. +1 cc to Mr.S.M.S.Johnny Basha, Advocate Sr.No.43559. W.P.(MD)Nos.13896 and 13897 of 2011 Dated:13.12.2011 6P/7C RPB 14.12.2011 https://hcservices.ecourts.gov.in/hcservices/