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2010 Supreme(Mad) 91
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
M. Murugesan Chettiar
Versus
Executive Engineer & Others
W.P. No.2982 of 2001
Decided on : 7-01-2010
For the Petitioners:N. Damodaran, Advocates. For the Respondent:A. Selvandran, Advocates.
Ratios:
a. To charge a person of theft of electricity under the Indian Electricity Act, 1910, there must be some legally acceptable evidence to support it.
b. Creation of artificial means for extraction of electrical energy constitutes tampering in meter.
c. If it is proved that any artificial means or means not authorised by the licencee exists for the abstraction, consumption or use of energy by the consumer, then it shall be presumed, until contrary is proved that pilferage of electricity is possible.
d. It is for the Electricity Department to prove the existence of any artificial means or means not authorised by the licencee to extract electricity energy.
e. Before passing any order against the consumer for the alleged theft of electricity, the authorities should furnish the consumer all the materials that are likely to be used against him.
Headnote:(A)Indian Electricity Act, 1910 (9 of 1910)-Sec.39, 44, 135-Electricity-Theft-Meter-Tampering-Seal-Respondent inspected the electricity installation in the premises of the petitioner and found that the seal was replaced and meter tampered-Respondent assessed the theft of electricity and demanded the petitioner to pay the amount-Appeal by petitioner failed-Order was challenged by the petitioner-Petitioner contended that the forensic opinion revealed that the meter was intact but the letters in the seal was smudged and smudging could not be an evidence of tampering-Respondent contended that the seal was replaced-Held, seeking the opinion of forensic expert itself shows that the authorities were not sure about the tampering-Mere smudging of letters is not an evidence of theft in the absence of proof of tampering of meter-Writ petition allowed and order imposing penalty was set aside.
(B)Indian Electricity Act, 1910 (9 of 1910)-Sec.39, 44, 135-Electricity-Theft-Meter-Tampering-Evidence- To charge a person of theft of electricity under the Indian Electricity Act, 1910, there must be some legally acceptable evidence to support it.
Although the standard of proof required in the departmental action, is not proof beyond reasonable doubt, yet Courts have consistently held that there must be some legally acceptable evidence to arrive at a prima facie conclusion of violation of the provisions of the Electricity Act. Para 17
(C)Indian Electricity Act, 1910 (9 of 1910)-Sec.39, 44, 135-Electricity-Theft-Meter-Tampering-Artificial means-Burden of proof- Creation of artificial means for extraction of electrical energy constitutes tampering in meter- If it is proved that any artificial means or means not authorised by the licencee exists for the abstraction, consumption or use of energy by the consumer, then it shall be presumed, until contrary is proved that pilferage of electricity is possible-It is for the Electricity Department to prove the existence of any artificial means or means not authorised by the licencee to extract electricity energy.
Tampering in meter, constitutes creation of artificial means for extraction of electrical energy and for that purpose, it is sufficient to raise presumption, as the meter is in the custody of the consumer. Once the existence of artificial means is proved, then it is the bounden duty of the consumer to prove that such artificial means, was not applied for the purpose of extraction of energy. Para 26
A bare reading of Section 135 of the Indian Electricity Act, shows that if it is proved that any artificial means or means not authorised by the licencee, exists for the abstraction, consumption or use of energy by the consumer, then it shall be presumed, until contrary is proved that pilferage of electricity is possible. Primarily, it is for the Electricity Department to prove that existence of any artificial means or means not authorised by the licencee to extract energy. Para 27
(D)Indian Electricity Act, 1910 (9 of 1910)-Sec.39, 44, 135-Electricity-Theft-Demand-Natural justice-Materials-Supply-Before passing any order against the consumer for the alleged theft of electricity, the authorities should furnish the consumer all the materials that are likely to be used against him.
The gravity of the charge itself warrants furnishing of copies of all materials that are likely to be used against the consumer. As the report of the inspecting team has not been furnished to the petitioner, there is a violation of principles of natural justice. For the above said reasons, the impugned order is liable to be set aside. Para 29
By order, dated 16. 1997, the Executive Engineer, (O & M), CEDC, Tamil nadu Electricity Board, Chinglepet, first respondent has directed the petitioner to pay a sum of Rs.4,79,384/-, alleging that the petitioner had tampered with the seals and thus, violated the revised grouping supply of the electricity. Aggrieved by the same, the petitioner filed an appeal to the Superintending Engineer, CEDC, TNEB, Chinglepet, third respondent, who by his order, dated 21. 2001, has confirmed the demand. Both the orders are challenged in this writ petition.
2. Facts leading to the writ petition are as follows:
The petitioner is the sole proprietor of Varalakshmi Oil Mills and his main business is conversion of groundnut into groundnut oil. The Mill is connected with Low Tension service connection M.490/Tariff-III B. According to the petitioner, the business is normally for 90 days only. He has been promptly remitting the electricity consumption charges. While so, personnel from Anti Power Theft Squad (APTS) visited the mill on 25. 1997 at 2 p.m., and inspected the meter for nearly four hours. They came again on 25. 1997 at 2 p.m., and inspected the meter and went back without making any remarks. The department people visited the mill once again at 5.30 p.m., and sought for permission to inspect the meter. The said inspection was done in his absence. Thereafter, the officials, for the first time, informed the petitioner that the seals in the meter are found to have been tampered with and the original M.R.T. Seal was replaced with bogus seal and thus, the petitioner has committed theft of energy. The petitioner has alleged that the Assistant Executive Officer (O & M), Tamil Nadu Electricity board, Thirukazhikundram, second respondent, has taken the original meter, under acknowledgement. A show cause notice, dated 25. 1997, was issued to the petitioner, demanding extra electricity consumption charges, of Rs.4,79,384/- alleged to be the loss caused to the Board, due to tampering of the meter. A detailed reply, dated 6. 1997 was submitted to the show cause notice, denying the allegations.
3. It is the grievance of the petitioner that without considering his valid objections, the first respondent has passed a final order and directed the petitioner to remit the alleged loss caused to the Board. Challenging the same, the petitioner filed W.P. No.9847 of 1997. This Court, by order, dated 7. 1997, while directing the petitioner to pay a sum of Rs.1,50,000/-, directed him to file a statutory appeal. Thereafter, detailed objections to the demand as well as to the final assessment was submitted to the appellate authority. It is the grievance of the petitioner that without considering the valid objections raised by the petitioner in proper perspective, the third respondent, by his order dated 110. 1989, dismissed the appeal and confirmed the order of demand. Aggrieved by the same, the petitioner filed W.P. No. 20418 of 1999 and the same was dismissed on 2. 2000. The correctness of the same was challenged in W.A. No. 510 of 2000. The Division Bench of this Court in W.A. No. 510 of 2000, by order, dated 23. 2000, set aside the orders passed by the third respondent, the appellate authority and remitted the matter, for fresh consideration. The Division Bench also directed the petitioner to deposit a sum of Rs.1,00,000/- with the Board, within a period of two weeks and on such deposit, directed the respondents therein to restore electricity supply to the petitioner’s premises. The condition was duly complied with, on 4. 2000 and thereafter, service connection was restored by the respondents. Enquiry was conducted, as per the directions of this Court and by proceedings, dated 21. 2000, the third respondent has passed orders, confirming the order of the first respondent, dated 25. 1997. Both the orders are challenged in this writ petition.
.4. Assailing the impugned orders, Mr. N. Damodaran, learned counsel for the petitioner submitted that the main
