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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
TULSYAN NEC Limited, Rep by its Managing Director, Sanjay Tulsyan – Appellant
Versus
The Chairman, Tamil Nadu Electricity Board, Chennai & Others – Respondent
C.S. No. 283 of 2004
Decided On : 19-04-2021
Electricity Act, 2003 - Sections 126 or 127, 145 - Electricity - Theft of energy - Demand Notice - Whether demand notice in letter is illegal and inoperative - Whether plaintiff is guilty of theft of electrical energy as pleaded by defendants - Whether defendants proved offence of Theft of Electricity against plaintiff as contemplated under Act 2003 - Whether defendants have taken any action to establish offence against plaintiff before issuing assessment order by downloading meter readings and by getting forensic lab report for counterfeit seals - Whether plaintiff is liable to pay amount or any other amount to defendants as demanded by defendants - Whether suit is not maintainable on account of alternative appellate remedy against demand notice as pleaded by defendants -
Finding of the court: Demand notice does not refer to the admissions that consumer has been able to elicit from witnesses examined on side of defendant Board. 3rd defendant has proceeded to blindly accept department’s case totally overlooking fact that department has not produced documentary evidence which they claim is available with them, corresponding meter card of Board, sealing register of CDEC/West, CDEC/North or te photographs showing foul play. These documents have not been produced for scrutiny of Enquiry Officer. Absence of defendant proving their allegation demand raised by 3rd defendant is totally baseless - Observation Mahazar only states that MRT seals in PT chamber when checked by MRT/CEDC/West with available MRT records was found to be unauthorised and bogus. Therefore, allegation that was made against plaintiff was that seal on PT chambers are unauthorised and bogus - Impugned order does not disclose documents based upon which Enquiry Officer has come to conclusion that plaintiff is guilty of theft of electricity and liable to pay penalty as claimed in impugned order - That apart Section 145 of Act, 2003 which bars the jurisdiction of Civil Court is restricted to matters which an Assessing Officer referred to in Section 126 or appellate authority referred to in Section 127 or Adjudicating Officer appointed under this Act is empowered to do so.Instant case would not come within provisions of Section 126 or 127 of Act and consequently suit filed is maintainable. That apart, even assuming that the jurisdiction of civil Court is barred as on date of filing of instant suit appellate authority was not even established.
Result: Order accordingly.
JUDGMENT :
(Prayer: Suit is filed under Order VII, Rule 1 of Civil Procedure Code r/w Order II Rule 2 of the Original Side Rules
(a) for a declaration declaring the demand notice issued by the 3rd defendant by letter No.ACE/CEDC/W/AEE/GL/AE2/F Doc.HTSC 1111/D209/2004 dated 18.02.2004 as illegal, unconstitutional, inoperative.
(b) for a consequential decree for injunction restraining the defendants herein or their men, agents, subordinates, or anyone acting under them from recovering the sum of Rs.3,79,03,901/- from the plaintiff as penalty.
(c) for costs of this suit.
(d) for such further or other reliefs as this Hon’ble Court may deem fit and proper and render justice.) 1. The above suit is filed for a declaration that the demand notice issued by the 3rd defendant by their letter dated 18.02.2004 is illegal, unconstitutional, inoperative and for a consequential injunction restraining the defendants, their men, agents, subordinates, or anyone acting under them from recovering a sum of Rs.3,79,03,901/- from the plaintiff as penalty.
2. Plaintiff’s case:
2.1. The plaintiff would submit that they are a private limited company established as early as in the year 1963. The plaintiff company was originally known as M/s. National Engineering Company Limited, which name was changed to TULSYAN NEC Limited in the year 2000, which is the present name of the plaintiff company. The plaintiff company consists of two divisions, the Steel division and Synthetics division.
2.2. The Steel division has two units, one in Ambattur, Chennai and the other at Gumudipoondi, Thiruvallur District. The Synthetics division has four units, three of which are at Karnataka and one at Goa. In addition to the above, the plaintiff company also has a Windmill division which has put up 6 windmills. Two of these windmills are in Kanyakumari and four of them are at Coimbatore.
2.3. The plaintiff company had entered into an agreement with the TNEB (as it was then known) to supply energy generated by the windmills to the Board. This supply of energy would be adjusted towards the electricity consumption at the plaintiff’s unit at Ambattur.
2.4. It is the case of the plaintiff that on 05.05.1997, the old electricity meter in the Ambattur unit was replaced with a new one. They were replaced with a new electronic meter called “Secure Meter”. The service connection number was HT.1111. This meter had several unique features like recording energy consumption every half an hour and it could be stored for 39 days. That apart, the new meter had features to prevent tampering and fraud since it is so calibrated that tampering could be easily detected. It is the contention of the plaintiff that once in 30 days the Official from the Board would come and extract the recordings.
2.5. On 19.12.2002, the Assistant Executive Engineer (Operations and Maintenance), Ambattur, along with other Officials had come to the plaintiff’s premises to check the meter. It is also the contention of the plaintiff that the meter was placed in a separate room and the lock to the entrance of this room is sealed. That apart, the key to the lock was with the department. On 19.12.2002, when the Officials had visited the premises, the seal on the PT secondary was found intact. However, the Officials had not commented on the genuineness or otherwise of the seal since they did not have the MRT records. The Officials thereafter sealed the gate lock and left.
2.6. On the next day i.e., 20.12.2002, the Assistant Executive Engineer (Operations and Maintenance), Ambattur, and five others came to the premises and broke the seal. They then checked the MRT seals on the PT Chamber and they opined that the seals were bogus and unauthorised. An FIR was lodged and a case registered against the plaintiff company, its Directors and Managing Directors. On the very same day an Observation Mahazar was prepared and a copy given to the General Manager, RMD, however he had not countersigned the same.
2.7. The plaintiff thereafter filed W.P.No
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