Karuppannan vs The Superintendent of Police and Others

R. Mahadevan, J—This writ petition has been filed seeking a Writ of Certiorari to call for the records pertaining to the proceedings of the first respondent passed in his proceedings Memo No. SE/TEDC/M/TV/AEE/MM/SDM/F.DOC/D. 028/15, dated 11.02.2015 and the consequential order passed by the second respondent in his proceedings in Lr. No. AEE/O & M/LLT/F. Theft. APTS/D38/2015, dated 30.03.2015 and quash the same as illegal.

Brief facts necessary for the disposal of this writ petition, are as follows:

2.1. The case of the petitioner is that he, being an agriculturist, has been enjoying the free electricity service connection in S.C. No. 534 to cultivate his lands, which were inherited by him, after the demise of his mother. Originally, the said service connection in S.C. No. 534 stood in the name of his mother and later, it was transferred in the name of the petitioner. Besides the cultivation in his lands, the petitioner is also running a brick chambers, to which, the water supply has been made through bore well as well as the Cauvery sub channel for making bricks.

2.2. While so, on 13.08.2012, the second respondent conducted an inspection in respect of service connection of one Karunakaran in S.C. No. 1147 at Esanaikorai village and the second respondent asked the son of the petitioner, namely, Vedhanayagam, to be a witness for the said inspection and accordingly, it was done and a copy of the inspection report along with the notice to compound the offence was given to the son of the petitioner in order to hand it over to the said Karunakaran.

2.3. However, the second respondent came to the petitioner''s land on 14.08.2012 and disconnected the service connection in S.C. No. 534 as though he had conducted the inspection on 13.08.2012. Thereafter, a notice was issued to the second respondent stating that the inspection was conducted only in respect of S.C. No. 1147, but the service connection in S.C. No. 534 was wrongly disconnected. In reply, the second respondent by order dated 14.08.2012 stated that on 13.08.2012, he conducted the inspection in respect of S.C. No. 534, but in the report, it has been inadvertently mentioned as S.C. No. 1147.

2.4. Subsequently, the second respondent called upon the petitioner to pay a sum of Rs. 16,000/- to compound the offence and since it was refuted, a police complaint has been lodged against the son of the petitioner and a case in Cr. No. 378 of 2012 for the offence under Section 135(1)(d) of the Electricity Act.

2.5. The main grievance of the petitioner is that the second respondent did not afford an opportunity of hearing to the petitioner as per Section 126 of the Electricity Act and the assessment has been wrongly made for a period of one year and though the service connection stood in the name of the petitioner, the complaint has been lodged as against the son of the petitioner.

2.6. Aggrieved thereby, the petitioner filed a writ petition in W.P(MD) No. 12673 of 2012 and this Court, by order dated 27.09.2012, has passed the following order:

"8. The respondents have initiated certain proceedings based on the inspection dated 13.08.2012. There is a point in dispute raised by the petitioner, which has been undertaken to challenge before the authority. Further, the provisional assessment order, more particularly, paragraph No. 5 which provides for filing of objections against the provisional assessment order by way of explanation and for an opportunity of personal hearing at the time of enquiry, amply safeguarded the right of the petitioner and therefore all the grievances raised in this Writ Petition can be urged before the competent authority. At this stage, this Court is not inclined to go into those aspects. Therefore, the relief sought for in the Writ Petition to quash the provisional assessment order and the clarification letter, is declined. However, in order to ensure that the plantain and paddy crops are not destroyed due to short supply of water for want of electricity, considering the offer made by the petitioner, which is accepted by the learned counsel for the respondents, this Court is inclined to pass the following order:

(i) The respondents are directed to restore the electricity service connection No. 534 on payment of 50% of the amount demanded under the provisional assessment order excluding the compounding fee;

(ii) The petitioner is directed to co-operate for the early disposal of the provisional assessment proceedings; and

(iii) The petitioner is at liberty to pursue the matter before the final assessment order is passed as per the relevant provisions of law."

2.7. According to the petitioner, the second respondent did not conduct any enquiry as contemplated under the Electricity Act, but, passed the final assessment order. Challenging the same, the petitioner filed W.P(MD) No. 16385 of 2012 and this Court, by order dated 07.07.2014, directed the respondents not to disconnect the electricity service connection of the petitioner until the appeal is disposed of by the first respondent therein and after affording a further time of four weeks to pay the amount, if any, from the petitioner thereafter.

2.8. Later, the first respondent rejected the appeal filed by the petitioner by order dated 17.09.2014 and directed the petitioner to remit the balance amount within four weeks from the date of receipt of a copy of the said order. Aggrieved by the same, he filed W.P(MD) No. 17214 of 2014 and this Court, by order dated 27.10.2014, set aside the same and remitted back the matter to the first respondent to take up the appeal afresh and dispose of the same on merits after providing necessary and due opportunity to the concerned parties.

2.9. Thereafter, the first respondent did not take steps to decide the appeal on maintainability. However, the second respondent once again passed the impugned order under the caption ''Final Assessment Order for the Theft of Energy under Section 135 of the Electricity Act, 2003'', which has been put to challenge in the present writ petition.

Mr. T. Lenin Kumar, learned Counsel for the petitioner, made the following submissions:

3.1. The second respondent ought not to have passed the impugned order as though he had passed the final assessment order for the first time after conducing the enquiry, for, he had already passed the order dated 20.11.2012 as final order and it was challenged by way of appeal before the first respondent.

3.2. When the first respondent was directed to decide the appeal on maintainability, the second respondent was not at all justified in passing the impugned order as if it is a final assessment order.

3.3 As per Section 126(4) of the Electricity Act, the presumption regarding the unauthorised use of electricity could be made only for three months in respect of agricultural service connection, but, in the case on hand, it was presumed for one year and calculation was arrived at a sum of Rs. 1,90,800/-, which is untenable in law.

3.4. It is the primordial contention of the petitioner that when the issue has been pending before the first respondent by way of appeal, the impugned order passed by the second respondent is vitiated.

3.5. According to the petitioner, the second respondent had conducted the inspection and prepared the inspection report only in regard to the service connection No. 1147, which belonged to one Karunakaran, however, the same has been put against the petitioner as if the second respondent conducted inspection regarding the agricultural service connection No. 534 and it is totally misconceived by the respondents.

3.6. Therefore, the learned Counsel for the petitioner prayed for setting aside the impugned order.

In support of his submissions, the learned Counsel for the petitioner, relied on the decision of this Court in N. Mohammed Farook v. Union of India [W.P(MD) No. 1715 of 2011, decided on 20.02.2012], wherein it is held as follows:

"13. The proceeding under Section 126 of the Electricity Act is essentially a civil proceeding. The said provision permits the Electricity Board to take action to recover the electricity charges in case the inspection conducted in the premises of the consumer revealed that there was unauthorized use of electricity.

The unauthorized use of electricity is defined thus:

"(b) "unauthorized 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 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."

The usage of electricity for a purpose other than for which the usage of electricity was authorized is also a ground to pass an order of assessment under Section 126. Section 126 mandates that the assessing officer should pass an order of provisional assessment initially and after giving notice to the consumer and considering his objections, a final assessment should be made. The statute also gives illustration as to how the assessment has to be made. Section 127 gives a right to the aggrieved to file an appeal.

A careful reading of Section 126 shows that dishonest intention is not at all necessary to pass an order of assessment. There is no requirement to allege mens rea against the consumer for the purpose of passing an order of assessment under Section 126 of the Act.

Section 135 deals with theft of energy. In fact, the said provision comes under part-XIV captioned "offences and penalties". The theft of electricity under Section 135 presupposes that the unauthorized abstraction of energy was done dishonestly. Therefore, there should be an element of mens rea to take action under Section 135 of the Act. Section 135 is essentially criminal in nature. The authority has to arrive at a conclusion that it was an intentional act with the necessary mens rea. it is true that usage of electricity for a purpose other than for which the usage of electricity was authorized is also made an offence under Section 135(1)(e) of the Act. The very same provision is contained in Explanation (b)(iv) of Section 126. Though the order of assessment can be passed under Section 126, without considering the issue as to whether the violation was done knowingly, such an action cannot be taken straightaway under Section 135, unless there is prima facie evidence to show that the violation was with mens rea.

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The Supreme Court in Sri Seetaram Rice Mills, in the light of the objects and reasons appended to 2003 Act, observed that the Act was enacted with a definite purpose to prevent unauthorized use of electricity on the one hand and theft of electricity on the other hand.

Therefore, in a matter like this, the Court should give a workable and meaning interpretation to the provisions. Both Sections 126 and 135 should be harmoniously construed. In case the object of these two provisions are taken into account, it would show that Section 126 is essentially a provision to compensate the Board. On the other hand, Section 135 is primarily penal in nature and in case it was made out that there was an act of theft, action could be taken to collect the charges as well as to prosecute the offender. Therefore, in cases covered under Section 135, necessarily element of mens rea should be present and in all other ordinary cases of violation or to put it more specifically, unauthorized use of electricity, action could be taken under Section 126."

Though the learned Counsel for the respondents took notice on behalf of the respondents as early as on 10.04.2015, no counter affidavit is forthcoming on their side.

Ms. S. Srimathy, learned Counsel appearing for the respondents made the following submissions:

6.1. The agricultural service connection number has been inadvertently mentioned as S.C. No. 1147 instead of S.C. No. 534 in the inspection report dated 13.08.2012 and subsequently, it has been rectified by proceedings dated 14.08.2012 and therefore, the claim of the petitioner for grant of the relief sought for by him, is liable to be rejected.

6.2. The allegation of the petitioner that no opportunity of personal hearing was given to the petitioner is nothing but only to deprive the respondent Board from initiating proceedings against the petitioner for the offence of theft of electricity.

6.3. By committing the said offence, the petitioner had utilised the pumped water for agriculture and bricks manufacturing purpose through canal in the bricks manufacturing unit run by the son of the petitioner, namely, Vedhanayagam.

6.4. The petitioner failed to establish his defence that no theft was committed in the agricultural service connection No. 534 and therefore, the second respondent confirmed the assessment made in the provisional assessment notice and thereby, passed the final order, calling upon the petitioner to pay the remaining amount within four weeks from the date of receipt of the same, with a default clause to disconnect the service connection.

6.5. Therefore, she submitted that the petitioner had unauthorisedly used the electricity and committed the offence of theft of electricity and accordingly, the second respondent passed the impugned order, after adhering to the directions issued by this Court in the earlier litigations and hence, she prayed for the dismissal of this writ petition.

This Court has carefully considered the rival submissions and perused the materials available on record.

Now-a-days, the awareness regarding the measures to save the energy is risen among the general public and the authorities in the helm of affairs are taking steps to generate energy from all sources, like, windmill, solar energy, atomic energy, etc. When that being the factual position, the theft of energy by the consumers, should be condemned and it is, no doubt, a punishable offence also.

Here, in the present case, it is alleged by the respondent Board that an agricultural service connection, which was given with an ideal motive to encourage the agricultural activities, has been misused by a person for other purposes.

It is seen that on the fateful day, i.e. on 13.08.2012, the second respondent conducted the inspection and prepared the inspection report in respect of the service connection No. 1147, to which, the son of the petitioner was a witness and subsequently, on the next day, i.e. on 14.08.2012, the second respondent rectified the inadvertent error occurred in mentioning the service connection number as S.C. No. 1147 instead of S.C. No. 534.

It is not in dispute that the petitioner is the owner of the agricultural service connection in S.C. No. 534. After rectifying the mistakes in regard to the service connection number, the petitioner was called upon to explain as to the theft of electricity and it was followed by the consequential proceedings. At many time, the petitioner challenged the proceedings of the respondents before this Court and this Court had passed the orders, directing the authorities to adhere to the purport of the Electricity Act and to afford due opportunity of personal hearing to the petitioner before passing the orders.

However, a careful scrutiny of the materials placed before this Court and the earlier orders passed by this Court, I am of the considered opinion that the impugned order passed by the second respondent warrants interference, for the following reasons:

12.1. The petitioner had challenged each and every proceedings of the respondents before this Court by filing the writ petitions and this Court has issued directions accordingly.

12.2. The second respondent had already passed the final assessment order dated 20.11.2012 and aggrieved by the same, the petitioner filed the appeal before the first respondent. This Court, by order dated 27.10.2014, remanded the matter to the first respondent to decide on the maintainability of the appeal filed by the petitioner, however, the second respondent once again passed the impugned final assessment order dated 30.03.2015, which, on the face of it, is bad in law.

12.3. Pending the appeal filed by the petitioner before the first respondent, who has seized of the matter as per the directions of this Court, the second respondent has no locus standi to re-adjudicate the issue afresh.

12.4. On this sole ground alone, the so-called final assessment order (for the second time) needs to be interfered with.

In fine, this writ petition is allowed and the impugned order dated 30.03.2015, is set aside. It is made clear that the first respondent shall strictly adhere to the directions already issued by this Court in the order dated 27.10.2014, passed in W.P(MD) No. 17214 of 2014 and decide the issue on merits and in accordance with law. Needless to say, the petitioner shall co-operate with the first respondent authority for the early disposal of the matter. Consequently, the connected miscellaneous petitions are closed. However, there shall be no order as to costs.