1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.01.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.36092 of 2002 J.Sekar ... Petitioner vs. 1.The Chairman Tamil Nadu Electricity Board Anna Salai, Chennai-600 002 2.The Superintendent Engineer Madurai Electricity Distribution Circle, Madurai-7 3.The Executive Engineer Distribution/North MEUC Tamil Nadu Electricity Board Teppakulam, Madurai ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorari to call for the records relating to the proceedings of the second respondent in Letter No.Maypo/Ma.Mi.Pa/Metro/Ma.Thu/ASP/APO(A)/Co.Ma.Manu/A.No./ 1032/2002, dated 22.08.2002 and to quash the same. 2 For Petitioner : Mr.J.Pothiraj For Respondents : Mr.G.Vasudevan Standing Counsel for TNEB ----- O R D E R The petitioner submits that he has been provided with service connection bearing No.GG19, in respect of the property situated at No.32, Kuruvikkaran Salai, Madurai, which was sanctioned in favour of one A.V.Shanmuga Nadar. Thereafter, a Rice Mill was established and the petitioner is enjoying the service connection as a consumer. In such circumstances, the third respondent issued a show-cause notice, dated 28.05.2001, to the petitioner stating that he had committed theft of energy by way of tampering the meter security seal provided by M.R.T.Wing and caused loss to the tune of Rs.4,84,875/-, hence a criminal case has been registered in Crime No.441, on the file of the C-3, Teppakulam Police Station. He submitted his explanation on 14.06.2002, stating that he is running only a Cooly Aravai and it was also not a regular business. Notice of inspection was not issued at the time of inspection. Hence, the inspection squad started pulling the sealing wire and it has been cut 3 and soldered again. The Inspecting Squad certified that the security seal in the meter terminal cover is in good condition, but nothing was mentioned in the Mahazar with regard to theft of energy. 2. Further, he submits that in the said meter, it was pointed out by the Inspection Officer that the meter was functioning correctly at the time of testing the meter with the testing kits and as well as with the loads of the industry. Even though the inspecting officials have certified that the meter was functioning properly at the time of inspection on 17.05.2001, the authority issuing the show-cause notice had stated that the energy was illegally abstracted. Based on the said inspection, a criminal case was lodged against him in Crime No.441, on the file of C3-Police Station, Teppakulam Police Station. Fearing harassment by the Police, he found no other alternative except to accept the offer of the respondent to remit the stipulated fine, so as to escape from the harassment by the Police. In the reply, he has also requested the respondent Electricity Board to return 40% of the compensation charges and the compounding amount for withdrawal of the criminal 4 case, which he had remitted to the Board. Therefore, a detailed explanation was submitted to the show-cause notice, dated 28.05.2001. For the said reply, the third respondent, without considering the explanation in it's proper perspective, mechanically and without application of mind passed an assessment order in a cyclostyle paper directing the petitioner to remit the levy in installments. Aggrieved by the said assessment order, he sent a representation, dated 17.08.2001, to the Chief Engineer stating that the assessment order passed by the third respondent is without analyzing the explanation in it's proper perspective and a mechanical order was passed in a cyclostyle paper. Therefore, the purpose of giving an explanation of the said show-cause notice ends in failure. In the said explanation, he had submitted that he had paid a sum of Rs.1,93,950/-, which is 40% of the calculated amount as compensation charges and compounding amount for withdrawal of the criminal case. It is also further stated that as per the order, he had paid six installments, which worked out to Rs.2,91,767/-. This was paid only to avoid disconnection of the supply to avoid police harassment. 5 3. He further submits that he is engaged in Cooly Hulling in most of the year and it is also a seasonal industry, which runs mostly at the harvest time. They have permanent holidays on Sundays and for calculating the quantum, the 52 Sundays were not considered and it was also included for assessment. Further, there is 20 State Holidays in a year and it is also included in the worksheet and it was not deducted. He is hulling only 20 tones of paddy for business purpose and 1,570 tones of paddy for Cooly Hulling. Therefore, the Mill is engaged for eight hours per day. He got permission of 42 H.P., but the consumption is only 37 H.P.Motor power for having a connection of 30 H.P., for hullar and 3 H.P., for Winnower and 3 H.P., for Stone Remover and 1 H.P., for Water Pumping. Therefore, the calculation worked out by the assessing authority is without application of mind and done in a mechanical manner. The said explanation, dated 17.08.2001, was treated as an appeal by the second respondent and a date of enquiry was fixed. In the enquiry, he submitted his written submission narrating the entire facts and circumstances and also raised grounds of appeal before the second respondent. But, the second respondent, without considering the explanation in it's proper perspective 6 passed an order on 22.08.2002, as if he had committed theft of energy by dishonestly tampering the meter seal and putting a hole in the sealing lead. The entire calculation was arrived in a hurried manner without calculating the quantum by way of proper application of mind. After deducting a sum of Rs.1,93,950/-, he was directed to remit a sum of Rs.2,90,925/- towards the theft of energy. In such circumstance, he paid a sum of Rs.1,93,950/- towards compensation charges on 18.05.2001. Hence, there is no need to pay the amount specified in the order passed by the second respondent. That apart, he has also sought for refund of the entire amount as the allegation levelled against him is without any basis and without any materials. The said representation of the explanation submitted to the authorities were not considered properly and the grounds of appeal raised before the second respondent was also not properly considered by the authority. Hence, he has filed this writ petition seeking the relief as stated above. 4. The respondents have filed their counter affidavit stating that it is true that service connection bearing No.GG19 was 7 sanctioned in the name of one A.V.Shanmuganadar in respect of the property situated at No.32, Kuruvikaran Salai, Madurai, but it is not true that the said Sekar has been recognized as a consumer because there was no intimation from the consumer to the Electricity Board as per the terms and conditions of supply of electricity. On the other hand, the agent of the said Sekar, namely, J.Sukumar was present in the said premises at the time of inspection on 17.01.2002 and he has stated that the said service connection was enjoyed by the said J.Sekar as an enjoyer, but not as a consumer and hence he is the responsible person for the loss of energy in the said service connection. A show-cause notice was issued only after the petitioner's consent letter for payment of 40% of the loss of energy and to pay the compounding charges in the criminal case in Cr.No.441 of 2001 of Theppakulam Police Station on 18.05.2001. Therefore, the denial of the petitioner that no notice of inspection was served and no detection of theft was made is not acceptable and false. 5. The respondents further submit that after detecting the theft of energy, the show-cause notice was issued for loss of energy 8 and for criminal liability, a case has been registered in Crime No.441 of 2001, on the file of the C3-Teppakulam Police Station and the same was withdrawn after payment of compounding charges. After admitting the offences, in order to drag on the proceedings, the petitioner had given a false explanation for the show-cause notice, dated 28.02.2002. Hence, the assessment was made as per the provisions of law and as per the terms and conditions of supply of electricity, after giving due opportunity to the petitioner. The Superintending Engineer, Tamil Nadu Electricity Board, Madurai Electricity Board, Madurai Electricity Distribution Circle, has rightly concluded in his order dated 22.08.2002 that the explanation given by the petitioner in his appeal is not satisfactory. After the appeal has been dismissed, the petitioner has not complied with the provisions of law and he had not performed his part of contract as per the terms and conditions of supply of electricity. The calculation for the loss of energy has been made as per the terms and conditions of supply of electricity. The sanctioned load of the said service connection 42 H.P., and the entire capacity has been utilized by the petitioner. 9 6. Further, the respondents submit that the second respondent has concluded in the appeal preferred by the petitioner after giving due opportunity and due consideration of the materials available with him. The payment made by him towards the loss of energy to an extent of 40% of estimated assessment is as per Law. The remaining amount should be paid in the installments. The said amount is towards the loss of energy caused to the Electricity Board due to the theft of energy. The said amount is calculated as per the terms and conditions of supply of electricity. The amount paid by the petitioner for compounding the offence is for his criminal liability as per the specific provision contained in Section 50B of the Indian Electricity (Tamil Nadu Amendment) Act, 1998 and the said amount is in noway connected with the amount estimated for the loss of energy. The theft of energy has been mis-concluded by the petitioner and he has not properly understood the provision contained in Section 39(1) of the Indian Electricity Act. The Executive Engineer applied his mind while calculating the loss of energy due to theft of energy as per the law and on facts. The respondents have applied their mind in appreciating the facts available before them. Therefore, the order passed by the authority 10 is in accordance with the terms and conditions of supply of electricity. The Appellate Authority exercised due care and caution in deciding the matter and as per the terms and conditions of supply of electricity. 7. The respondents further submit that the entire calculation made by the Board is as per the guidelines given by the Rules. Therefore, the impugned proceedings are in accordance with the provisions of law and as per the terms and conditions of Supply of Electricity. The said power has been exercised, after giving due opportunity to the parties concerned and the authority appreciated the materials placed before it. Therefore, there is no violation of principles of natural justice. The said proceedings have been incorporated in the form prescribed by the Electricity Board and hence the refund of deposit amount to the petitioner will not arise. On the other hand, the Electricity Board has to realize the amount due from the consumer/petitioner from the said deposit amount. Hence, the respondents pray to dismiss the writ petition filed by the petitioner. 11 8. The highly competent counsel Mr.G.Vasudevan, appearing for the respondents submits that it is an admitted fact that service connection had been granted in the name of A.V.Shanmuga Nadar and not in the writ petitioners name. The original consumer had not informed that the service connection can be transferred to the petitioners name. The petitioner was issued show cause notice and after receipts of the same, he had given undertaking letter stating that he had given consent for payment at 40% of loss of theft and energy. Further, a case has been registered against the petitioner. The theft of energy had been deducted by the inspection team and it was seen that the petitioner had removed the seal and cut of the wiring. As such, the petitioner had committed theft and caused loss of a sum of Rs.4,04,875/-. Hence, the impugned order was passed and the petitioner was ordered to pay compensation for theft of energy. 9. On considering the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the impugned order of the respondent, this Court does not find any discrepancy in the said order. This Court is of the view 12 that the petitioner had given consent for payment of 40% for the loss of energy and to pay compounding charges in the criminal case filed against him. Hence, the above writ petition does not have any force and as such it is dismissed. No costs. 17.01.2013 Index : Yes/No Internet : Yes/No ub 13 To 1.The Chairman Tamil Nadu Electricity Board Anna Salai, Chennai-600 002 2.The Superintendent Engineer Madurai Electricity Distribution Circle, Madurai-7 3.The Executive Engineer Distribution/North MEUC Tamil Nadu Electricity Board Teppakulam, Madurai 14 C.S.KARNAN, J. ub W.P.No.36092 of 2002 17.01.2013