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2019 Supreme(Mad) 944
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, S. VAIDYANATHAN, JJ.
M/s. Emkay Alloys (P) Ltd., Erode District - Appellant
Versus
The Executive Engineer, Tamil Nadu Electricity Board (O&M), Gobichettipalayam, Erode District & Others - Respondents
W.A.Nos.1808 & 1811 of 2009, W.P. Nos. 29882 of 2004 & 3013 of 2014 & W.P.(MD) Nos. 2360 & 2361 of 2008 & other connected Miscellaneous Petitions
Decided On : 08-04-2019
For the Appellant :AR.L. Sundaresan, Satish Parasaran, Senior Counsel, K. Seshadri, R.S. Pandiyaraj, C.S. Krishnamoorthy, Advocates
For the Respondents:Vijay Narayan, Advocate General, S.K. Raameshuwar, P.R. Dhilipkumar, Abdul Saleem, Advocates
Headnote:
Criminal Procedure Code, 1973 - Section 320 - Indian Electricity Act, 1910 - Indian Electricity Rules, 1956 - Rule 138 - Central Act 36 - Electricity Act, 2003 - Section 50, 185 , 152, 152(3) , 154 , 135 , 126, 135(1)(b) and 138(1)(a) and (d) - Tamil Nadu Electricity Supply Code 2004 - Section 135(1A) Regulation 19A and 23(AA) - Electricity Supply Act 1948 - Evidence Act - Sections 40 to 43 - Electricity matter - Theft of energy - Illegal abstraction of electricity -Appellant-Industry (hereinafter referred to as the Appellant) was inspected by Officers of Respondent and though electronic meter had recorded correct consumption, it was alleged by Inspecting Officials that meter was stopped by using magnet bar and they concluded that there was a theft of energy and illegal abstraction of electricity, amounting to an offence - Utter shock and surprise of Appellant, an Assessment Order was passed without conducting any enquiry, calling upon Appellant to pay a sum against which, Appellant had filed a Writ Petition in and said Writ Petition was allowed by this Court with a direction to Appellant to remit to Electricity Board, with further direction to the Second Respondent to re-consider matter afresh -Held, consumers, who are getting electricity supply are governed by terms and conditions of such supply and it is our bounden duty to ensure prevention of loss of energy or theft of energy - In said course, Section 50 of Act, 2003 empowers Regulatory Commission to amend Act, in which no exception can be drawn - Conferment of power to Authorized Officer to determine civil liability under amended Regulation 23(AA) of Code cannot be said to be violative of any of fundamental rights guaranteed in Part III of Constitution or of any other constitutional provision as it only aims at detection of exact levy to be imposed on unauthorized users of electricity so as to generate income to Government and all law making, be it in context of delegated legislation or primary legislation, have to conform to fundamental tenets of transparency and openness on one hand and responsiveness and accountability on other - In case of theft of energy, assessment will be as per clause 23(b) of Conditions of Supply to be read with condition No.11 of Part III of the Conditions of Supply and Miscellaneous Charges framed under and not under Section 126 of Electricity Act, 2003, and in terms of clause 11(1)(iii), energy charges will be leviable at twice applicable rate - W.P.No.2360 of 2008 sans merits and stands dismissed - Consequently, connected Miscellaneous Petitions are closed.
M. Venugopal, S. Vaidyanathan, JJ.
These matters were grouped together and posted before this Bench for hearing on the orders of the Hon'ble Chief Justice under the caption “Specially Ordered Cases” in the light of the fact that the issues involved in all these matters are one and the same.
2. Heard Mr. AR.L. Sundaresan, learned Senior Counsel for Mr. K. Seshadri, learned counsel appearing for the Petitioners in W.A.Nos.1808, 1811 of 2009 and 29882 of 2004 and for Mr. R.S. Pandiyaraj, learned counsel for the Petitioner in W.P.No.3013 of 2014 and Mr. Satish Parasaran, learned Senior Counsel for Mr. C.S. Krishnamoorthy, learned counsel in W.P.(MD) Nos.2360 and 2361 of 2008, Mr. Vijay Narayan, learned Advocate General, assisted by Mr. S.K. Raameshuwar, learned Standing Counsel for TNEB in W.A.Nos.1808 of 2009 and W.P.No.3013 of 2014 and for W.A.No.1811 of 2009, Mr. P.R. Dhilipkumar, learned Counsel for the respondents in W.P.No.29882 of 2004 and for R1 in W.P.Nos.2360 & 2361 of 2008 and Mr. Abdul Saleem, learned Counsel for R2 in W.P.Nos.2360 & 2361 of 2008.
3. For the sake of brevity, the facts are being taken from W.A.No.1808 of 2009, which runs as follows:
(i) The Appellant-Industry (hereinafter referred to as the 'Appellant') was inspected by the Officers of the Respondent and though the electronic meter had recorded the correct consumption, it was alleged by the Inspecting Officials that the meter was stopped by using the magnet bar and they concluded that there was a theft of energy and illegal abstraction of electricity, amounting to an offence under Section 39(1) and 44 (1)(aa) and 44(1)(c) of the Indian Electricity Act, 1910 and Rule 138 of Indian Electricity Rules, 1956;
(ii) It was further stated that a Police complaint was lodged on 04.07.2003 in this regard, for which, a case in Crime No.114 of 2003 came to be registered under Section 39(1) and 44(1)(c) of the Indian Electricity Act, 1910. Subsequent thereto, the First Respondent issued a show cause notice to the Appellant without any enclosures and directed the Appellant to attend the enquiry on or before 29.07.2003 before the Second Respondent.
(iii) However, to the utter shock and surprise of the Appellant, an Assessment Order was passed on 30.07.2003 without conducting any enquiry, calling upon the Appellant to pay a sum of Rs.17,00,28,124/-, against which, the Appellant had filed a Writ Petition in 23010 of 2003 and the said Writ Petition was allowed by this Court with a direction to the Appellant to remit Rs.30,00,000/- to the Electricity Board, with further direction to the Second Respondent to re-consider the matter afresh.
(iv) It was the grievance of the Appellant that on 23.12.2003, the Second Respondent had once again confirmed the amount showing in the earlier show cause notice without allowing the Appellant to cross examine any of the witnesses. Aggrieved by the Act of the Second Respondent, the Appellant had filed yet another Writ Petition in W.P.2078 of 2004, challenging the order dated 23.12.2003 on various ground. During admission of the Writ Petition, interim stay was granted by directing the Appellant to pay Rs.10,00,000/- to the respondent within six weeks and the interim order was duly complied with.
(v) It was submitted by the Appellant that since the alleged offence was detected after introduction of the new Central Act 36 of 2003, namely, Electricity Act, 2003 (in short the 'Act, 2003'), the Appellant had sought to apply the Act, 2003, by filing additional grounds to the Writ Petition. Later on, 11.04.2004, a revised Charge Sheet was filed in C.C.No.28 of 2004 on the file of the learned Judicial Magistrate No.1, Gobichettipalayam. However, consequent to constitution of Special Court designated by the State Government, this Court had directed the learned Judicial Magistrate No.1, Gobichettipalayam to transfer the case to the file of the learned Principal District Judge, Erode, pursuant to which, the same was re-numbered as in S.C.No.111 of 2
