M/S.Perichin Infoserv P.Ltd., v. The Assistant Executive

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 27.08.2019

CORAM:

THE HONOURABLE MR.JUSTICE M.DHANDAPANI W.P.No.23333 of 2011 and MP.No.1 of 2011 M/s.Perichin Infoserv P Ltd., T.S.No.135, Nagireddy Thottam, Guindy Industrial Estate, Guindy, Chennai 600 032.

and represented by its Asst Accounts Manager, Mr.K.Panneerselvam, S/o.Kumarasamy.

.. Petitioner Vs.

The Assistant Executive Engineer, O & M/CEDC/South, Guindy, Chennai - 600 032.

.. Respondent PRAYER: Writ petition filed under Article 226 of the Constitution of India, for a Writ of Certiorari, calling for the records in respect of the impugned order of the respondent in his proceedings in Lr.No.AEE/O&M/Guindy dated 30.09.2011 and quash the same.

For Petitioner : DrG.Krishnamurthi For Respondent : Mr.S.K.Rameshwar

O R D E R

The petitioner filed this Writ Petition, to issue a writ of Certiorari, to call for the records relating to the order in Lr.No.AEE/O&M/Guindy dated 30.09.2011 of the respondent and quash the same.

2.The learned counsel appearing for the petitioner would submit that the matter related to the theft of electricity. At the time of identifying the theft, the authorities initiated proceedings under Section 135 of the Act and proceeded with

the civil liability by imposing penalty and in the mean time, the Respondent Board also registered a criminal case. The petitioner paid the compounding fee of Rs.36,000/- Subsequently, the Division Bench of this court has passed an order in similar writ petitions to proceed with the civil liability. Hence, the counsel on instructions would submit that the petitioner may be permitted to deposit the remaining amount without any BPSC charges and penal interest and requests this Court to grant some reasonable time to deposit the same.

3.The learned counsel appearing for the respondent Board admitted the fact that the petitioner has paid some portion of the amount and this court may pass appropriate orders. 4.The said issue has been squarely covered by the decision of the Division Bench of this Court in batch of cases in W.A.Nos.1808, 1811 of 2009, W.P.Nos.29882 of 2004 and 3013 of 2014 and W.P.No.(MD) Nos.2360 and 2361 0f 2008, as follows: 28.It was also stated that Section 185 of the Act, 2003 cannot come to the rescue of the Electricity Board, as the action has been initiated only after the Act, 2003 came into existence and no proceedings initiated under the Old provisions / Repealed Act cannot be continued. Further, the Board cannot initiate proceedings under Clause 8.01 and 8.

02 of the Terms and Conditions of Supply of Electricity (Electricity Supply Act 1948) with regard to theft of energy, as those clauses are no longer in vague as on the date of initiation of proceedings, the Old Act got repealed and the Act 2003 had came into force. Clause 8.01 and 8.

8.00 Theft of Energy and Extra Levy:

8.01 Any consumer who dishonestly abstracts or uses energy shall be deemed to have committed theft within the meaning of Indian Electricity Act, 1910 as amended by the Tamil Nadu Government and the Indian Penal Code and the existence of artificial means for such abstractions shall be prima facie evidence of such dishonest abstraction. Illegal restoration of supply to a disconnected service connection will fail under this category.

8.02 Extra levy for theft of energy by tampering of meters / meter seals will be made at the rates given below:

(a)for a period of twelve months; or (b)for a period from the date of prior inspection if any by the APTS or MRT wing to the date of detection; or

(c)for a period from the date of replacement of meter to the date of detection; or (d)for a period from the date of service connection to the date of detection whichever period of the above is less.

For other cases of theft of energy, the extra levy will be made for a period of twelve months or from the date of service connection to the date of detection whichever period if less at the same rates given below:

(i)For Energy:

(a) Low Tension Service Connection : Highest Low Tension tariff rate x3: The charges arrived at will be rounded off to the next higher rupees. (b)High Tension Service Connection:

Highest High Tension Tariff rate x 4 the charges arrived at will be rounded off to the next higher rupee (ii) For maximum demand: (In High Tension Service Connection):

Highest High Tension tariff rate for maximum demand x 4.

Extra levy for illegal restoration of supply to a disconnected service connection will be made for a period of twelve months, immediately preceding the date of detection of the violation or for the period from the date of disconnection of the service connection to the date of detection of the illegal restoration, whichever period is less, at the rates given above.."

29.The above submission made by the learned Senior Counsel for the petitioners cannot be accepted, because once there is a saving clause provided under the New Act, then there is no impediment or bar for the Department to proceed under the Old Act in the absence of proof that it is inconsistent with the provisions of the Act, 2003. More so, quoting a wrong provision of the Act will not entitle a wrong doer to escape from the clutches of law, especially when Section 126 of the Act, 2003 extends power to the Department / Board / Authorities to ensure that the electricity consumed unauthorizedly is calculated and necessary charges are paid by the defaulter. In the decision, Hitech Mineral Industries (P) Ltd., Salem V.TNERC, Chennai, reported in 2010 (3) MLJ 697, it is inter alia, observed that the persons who steal energy or use energy unauthorisedly have to be punished.

5.In view of the decision held by the Division Bench of this Court and also considering that the petitioner has accepted the Provisional Assessment Order and they have also paid substantial amount to the tune of Rs.36,000/- and agreed to pay the remaining amount without BPSC and penal interest, this Court is inclined to direct the petitioner to deposit the entire due without BPSC and penal interest after adjusting the amount already paid by him within a period of four weeks from the date of receipt of a copy of this order.

6.With the above direction, this writ petition stands disposed of. No costs. Consequently, connected miscellaneous petition if any is closed.

Sd/- Assistant Registrar(CS-VIII) //True Copy// Sub Assistant Registrar Pkn.

To The Assistant Executive Engineer, O & M/CEDC/South, Guindy, Chennai - 600 032.

+1cc to Mr.A.Thirumaran, Advocate SR.73258 +1cc to Mr.S.K.Rameshuwar, Advocate SR.73773 W.P.No.23333 of 2011 and MP.No.1 of 2011 CA(CO) CB(20/11/2019)