{"id":102698,"date":"2009-04-16T00:00:00","date_gmt":"2009-04-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sri-vignesh-industries-vs-the-chairman-cum-managing-on-16-april-2009"},"modified":"2016-07-20T11:02:33","modified_gmt":"2016-07-20T05:32:33","slug":"sri-vignesh-industries-vs-the-chairman-cum-managing-on-16-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sri-vignesh-industries-vs-the-chairman-cum-managing-on-16-april-2009","title":{"rendered":"Sri Vignesh Industries vs The Chairman -Cum- Managing … on 16 April, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
Sri Vignesh Industries vs The Chairman -Cum- Managing … on 16 April, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 16\/04\/2009\n\nCoram\nThe HONOURABLE MR.JUSTICE K.K.SASIDHARAN\n\nW.P.(MD)No.3074 of 2009\nand\nM.P.(MD).Nos.1 and 2 of 2009\n\nSri Vignesh Industries,\nRep. by its Sole Proprietor,\nS.Ramesh Sundar\t\t\t\t\t... Petitioner\n\nvs.\n\n1.The Chairman -cum- Managing Director,\n  Tamil Nadu Electricity Board,\n  Anna Salai, Chennai.\n\n2.The Executive Engineer (I\/C),\n  Tamil Nadu Electricity Board\/Distribution,\n  O&M, Tuticorin Electricity Distribution\n  Circle, Kovilpatti, Tuticorin District.\n\t\t\t\t\t\t... Respondents\n\nPRAYER\n\nWrit Petition filed under Article 226 of the Constitution of India\npraying for the issue of a Writ of Certiorarified Mandamus, calling for the\nrecords relating to the order made in Lr.No.EE\/D, KPT\/TA\/F.Theft\/D.No.665\/09\ndated 19.02.2009 passed by the second respondent and quash the same and\nconsequently, direct the respondents to restore and continue to supply electric\nenergy to the service connection bearing HTSC No.207, belongs to the petitioner.\n\n!For Petitioner\t... Mr.G.Ethirajulu\n^For Respondents... Mr.M.Sureshkumar\n\n******\n:ORDER\n<\/pre>\n
*****<\/p>\n
\t\tThis Writ Petition is directed against the order passed by the
\nsecond respondent in proceedings No.Lr.No.EE\/D,KPT\/TA\/F.Theft\/D.No.665\/09, dated
\n19.02.2009, whereby and whereunder the petitioner was directed to pay a sum of
\nRs.82,43,460\/- on account of dishonest abstraction of electricity.\n<\/p>\n
\t\tPETITIONER’S VERSION:-\n<\/p>\n
\t\t2. The petitioner is running a factory in the name and style of “Sri
\nVignesh Industries”, and is engaged in the manufacture of Calcium Corbide. They
\nwere provided with a service connection by the respondents as per Policy
\nNo.HTSC-207. Even though the allotted power was 400 KVA, it was reduced to 250
\nKVA from time to time on account of the power shortage. Apart from the cut
\nimposed by the Electricity Board, there was also power off during the period
\nfrom 06.00 p.m. to 10.00 p.m. Subsequently, 40% cut was imposed with effect from
\nNovember 2008. In such circumstances, the production of the factory has come to
\na standstill. While so, on 27.11.2008, an inspection was conducted in the
\nfactory premises by the officials of the second respondent and it was found that
\nall the meter seals were intact and an endorsement to that effect was also made.
\nSubsequently, on 27.12.2008 also a joint inspection was conducted by MRT,
\nTuticorin as well as the Enforcement, Tirunelveli and in the said inspection
\nalso, there were no malpractices found and they have also changed the meter
\nchamber log seals and an endorsement was also made to that effect.\n<\/p>\n
\t\t3. While so, on 25.01.2009, the Assistant Engineer, Tirunelveli
\nconducted inspection at the premises and removed the meter and handed over the
\nsame to the Pasuvanthanai Police Station on the ground that there was an act of
\ntheft of energy in the factory premises of the petitioner. Subsequently, the
\nmeter was released and it was handed over to the Section Officer for safe
\ncustody on 28.01.2009. Later, a provisional assessment was stated to have been
\nmade on 27.01.2009 by the second respondent. However, no such assessment order
\nwas received by the petitioner and, therefore, they were not in a position to
\nsubmit their explanation. While so, they received the impugned order dated
\n19.02.2009 calling upon them to pay the amount assessed by the second
\nrespondent. Aggrieved by the said order, the petitioner has filed the writ
\npetition.\n<\/p>\n
\t\tSUBMISSIONS:-\n<\/p>\n
\t\t4. The learned counsel appearing for the petitioner contended that
\nthe procedure adopted by the second respondent was violative of Regulation 23-AA
\nas amended by the Tamil Nadu Electricity Supply (Second Amendment) Code, 2007.
\nAccording to the learned counsel, a prescribed procedure has been incorporated
\nas per the said amendment. The amended provision pre-supposes that before
\ndirecting the consumer to pay the electricity charges on account of theft of
\nenergy, it should be established that there was a theft of energy. According to
\nthe learned counsel, Regulation 23-AA(7) is very clear as it provides that,
\nwhere it is established that there is a theft of energy, the authorised officer
\nshall assess the quantum of energy consumption for the past 12 months as per the
\nassessment formula given in Form-8. By placing reliance on the said Regulation,
\nthe learned counsel for the petitioner contended that there was nothing
\nindicated in the impugned order to the effect that the second respondent has
\nestablished that there was a theft of energy and as such, the very procedure
\nadopted by the second respondent is violative of the mandatory conditions for
\npassing an order of assessment.\n<\/p>\n
\t\t5. The learned counsel further contended that even before the expiry
\nof the time prescribed for submitting the objection, the second respondent has
\npassed the impugned order and as such, the petitioner was prevented from filing
\nan effective explanation in respect of the provisional assessment made by the
\nsecond respondent and as such, serious prejudice has been caused to the
\npetitioner.\n<\/p>\n
\t\tSUPPLY CODE – PROVISION REGARDING THEFT OF ENERGY:-\n<\/p>\n
\t\t6. The issue regarding method of assessment of the electricity
\ncharges payable in case of theft of electricity pending adjudication by the
\nappropriate Court, disconnection of supply of electricity and the removal of the
\nmeter, cable lines, electric plant and other apparatus in case of theft or
\nunauthorized use of electricity and measures to prevent diversion of
\nelectricity, theft or unauthorized use of electricity as well as tampering were
\nconsidered by the Tamil Nadu Electricity Regulatory Commission and accordingly,
\nin exercise of the powers conferred as per Section 181 read with Section 50 of
\nthe Electricity Act, 2003, the regulations framed under the Tamil Nadu
\nElectricity Supply Code were amended with effect from 15th June 2007. As per the
\nsaid amendment, the existing sub regulation 23-AA was substituted by fresh
\nregulation.\n<\/p>\n
\t\t7. Regulation 23-AA (1) empowers the officer authorized under sub-
\nsection (2) of Section 135 to conduct inspection of such place or premises for
\nthe purpose of satisfying as to whether there was an act of theft. In the event
\nof finding any such act of theft or unauthorized distraction of electricity,
\nthe said officer was required to prepare a report at the place itself. The
\nreport should contain the details, like connected load, condition of seals and
\nthe modus operandi adopted for theft of energy. Upon such detection of theft of
\nelectricity, the officer of the licencee or supplier was entitled to disconnect
\nthe supply line of electricity. He was also expected to make a complaint before
\nthe concerned police station. As per Section 23-AA(3), in the event of suspected
\ntheft by tampering of meter or metering equipment, the meter shall be removed
\nand sealed in the presence of the accused as well as witnesses. Similarly,
\nprovisions are also made in case of theft of electricity by bypassing the meter
\nor metering equipment or theft by direct tapping from the licencee’s or
\nsupplier’s lines.\n<\/p>\n
\t\t8. The provision regarding preparation of provisional assessment as
\nwell as issuance of notice to the consumer is contained in sub clause (7) and
\n(8) of the regulation. As per sub clause (7), where it was established that
\nthere was a case of theft of energy, the amount has to be assessed by the
\nauthorized officer as per the formula given in Form-8 and the said provisional
\nassessment should be served on the assessee in Form No.9. Such provisional
\nassessment should also indicate the time limit permitted for filing objection
\nagainst such provisional assessment. Sub clause (8) gives seven days time from
\nthe date of issue of order of provisional assessment to submit the objection
\nagainst the assessment.\n<\/p>\n
\t\t9. Sub clause (11) provides that in the event of the accused person
\nfails to submit his objection to the provisional assessment within seven working
\ndays, the licencee or supplier concerned was within their powers to initiate
\nrecovery action for realizing the amount as shown in the provisional assessment
\norder.\n<\/p>\n
\t\t10. The procedure regarding submission of explanation as well as the
\nenquiry is contemplated in sub clause (12) of the Regulation 23-AA. As per the
\nsaid provision, in the event of submitting an explanation by the consumer within
\nseven working days from the date of receipt of provisional assessment order,
\nsuch explanation should be considered by the authorized officer and a personal
\nhearing also should be given to the accused person. The provision further
\nmandates three days notice to the accused person for his appearance for the
\npurpose of personal hearing. The accused was also entitled to produce documents
\nin support of his contention as well as written submissions in addition to the
\nsubmission earlier made by way of written explanation. It was only in the event
\nof the failure of the accused to appear for personal hearing, in spite of the
\nservice of three days notice, a cause of action arises for passing final
\nassessment. The authorized officer was expected to consider the entire factual
\nmatrix before proceeding further. Sub clause (13) is very clear when it says
\nthat the authorized officer shall analyze the case after carefully considering
\nall the documents as well as the submissions by the accused person, facts on
\nrecord, and the consumption pattern. Therefore, an analysis of the entire matter
\nhas to be made by the authorized officer. It was also not an empty formality, as
\nthe final order to be passed by the authorized officer would involve civil
\nconsequences to the accused. The computation of quantum of energy consumption
\nfor the past twelve months for the purpose of making an assessment order was
\nalso indicated in the regulation itself. The authorized officer was expected to
\npass an order within seven working days from the date of enquiry to assess the
\nelectricity charges and to pass the final assessment. In cases, wherein there
\nwas no appearance of the accused, in response to the provisional assessment, the
\nauthorized officer was within his powers to pass final orders within 15 days
\nfrom the issuance of provisional assessment order. The mode and manner passing
\nthe order has also been indicated in sub clause (15). The authorized officer was
\nexpected to indicate the submissions made by the accused in his objection as
\nwell as during the personal submission, an analysis of the documents as well as
\nevidence produced by the accused and the reasons for acceptance or rejection of
\nthe case projected by the accused. The authorized officer was also obliged to
\nserve a copy of the speaking order to the accused person under proper receipt
\nand he should be given seven working days from the date of receipt of the final
\nassessment order to pay the amount. In case of failure to pay the amount, even
\nafter passing the final assessment order, the licencee was given the power to
\nremove the meter and service line after giving fifteen days notice.\n<\/p>\n
\t\t11. As per the explanation appended to Regulation 23-BB, accused
\nperson was intended to include the owner or occupier of the premises or his
\nauthorized agent or representative. Therefore, there is an elaborate  procedure
\nnow incorporated in the Tamil Nadu Electricity Supply Code and as such, the
\nauthorized officer has to discharge his function strictly as per the scheme of
\nthe Code.\n<\/p>\n
\t\tON POINT:-\n<\/p>\n
\t\t12. The premises of the petitioner was inspected by the officials of
\nthe electricity department on 25.01.2009. As per the impugned order, it was
\nfound that the petitioner was engaged in theft of energy through the process of
\nbypassing the meter by providing two loops in the current coils of the secondary
\nterminals of the metering set by opening the secondary terminal cover of the
\nmetering set, after removing the seals provided and by refixing the terminal
\ncover of the metering set with bogus seals. Accordingly, a provisional
\nassessment was issued to the petitioner on 27.01.2009 requiring them to submit
\ntheir objections within a period of seven days. However, there was no reply from
\nthe petitioner. Therefore, a second notice was issued to the petitioner on
\n10.02.2009 so as to enable them to submit their objections. Still, there was no
\nresponse from the petitioner and as such, the second respondent was constrained
\nto pass the final assessment order as per  proceedings dated 19.02.2009.\n<\/p>\n
\t\t13. The petitioner has contended that the provisional assessment
\nissued on 27.01.2009 was not served on them so as to enable them to submit their
\nexplanation within the time prescribed. In any case, a fresh notice was issued
\non 10.02.2009 calling upon the petitioner to submit their objections within
\nseven days from the date of receipt of the communication. The said communication
\nwas received by the petitioner on 12.02.2009. Since the petitioner received the
\nnotice only on 12.02.2009, the seven working days time would expire only by
\n19.02.2009. However, the impugned order was passed on 19.02.2009 itself. The
\npetitioner has contended that the seven days time expires only on 23.02.2009.
\nSince the notice was received on 12.02.2009, the petitioner was having time only
\ntill 19.02.2009 to submit their reply. In any case, the final assessment was
\nmade on 19.02.2009 itself. Since the time expires only on 19.02.2009, the second
\nrespondent was expected to pass orders only after 19.02.2009.\n<\/p>\n
\t\t14. The second respondent was not expected to issue a second notice
\nto the petitioner as per the provisions of the Tamil Nadu Electricity Supply
\nCode. However, it appears that only on account of the non service of the initial
\nnotice sent on 27.01.2009, the second respondent has issued the second notice on
\n10.02.2009. When the second respondent himself has given the notice to the
\npetitioner granting seven clear days time to submit their objections, he was
\nrequired to wait till the expiry of the said period before passing the final
\nassessment order. Therefore, I am of the view that the petitioner should be
\ngiven an opportunity to submit their objection.\n<\/p>\n
\t\t15. The learned counsel for the petitioner contended that the
\nassessment made by the second respondent was not in accordance with the
\nprescribed procedure. It was also his contention that on account of the power
\ncut imposed by the respondents, the petitioner was granted only 210 KVA instead
\nof 400 KVA with effect from September, 2008. Therefore, according to him, while
\ncomputing the consumption, it was only the actual consumption of 211 KVA has to
\nbe taken into consideration. However, the computation was made on the basis of
\nthe sanctioned kilovolts of 400 and as such, the very basis adopted was
\nincorrect.\n<\/p>\n
\t\t16. The contention of the learned counsel in respect of the
\nprovisional assessment order as confirmed by the final assessment order cannot
\nbe looked into at this stage, as I am remanding the matter to the second
\nrespondent for fresh consideration. Since the second respondent has issued the
\nnotice on 10.02.2009 and as the petitioner is now permitted to file their
\nobjections to the said notice, it would be open to the petitioner to incorporate
\nall their submissions in the written explanation and it would also be open to
\nthem to substantiate their case by way of production of documents. Any
\nobservation made with regard to the merits of the matter would affect the case
\nof both the parties in the adjudication proceedings to be conducted by the
\nsecond respondent. In such circumstances, I am of the view that the matter
\nshould be considered by the second respondent afresh.\n<\/p>\n
\t\tTO SUM UP:-\n<\/p>\n
\t\t17. Accordingly, the impugned order dated 19.02.2009 is quashed and
\nthe matter is remitted to the second respondent for fresh consideration. The
\npetitioner is granted seven working days time from the date of receipt of a copy
\nof this order to file their objections before the second respondent in response
\nto the notice dated 10.02.2009. On receipt of such objections, the second
\nrespondent is directed to give an opportunity of personal hearing to the
\npetitioner and to produce documents to substantiate their contentions and to
\ndispose of the matter on merits. While deciding the matter, the second
\nrespondent is expected to follow the mandatory procedure as contained in
\nRegulation 23-AA of the Tamil Nadu Electricity Supply Code. Since the service
\nconnection has already been disconnected by the respondents, the second
\nrespondent is directed to complete the assessment proceedings as expeditiously
\nas possible and in any case, within one month from the date of receipt of
\nobjections from the petitioner.\n<\/p>\n
\t\t18. The Writ Petition is allowed as indicated above. Consequently,
\nthe connected miscellaneous petitions are closed. No costs.\n<\/p>\n
SML<\/p>\n
To<\/p>\n
1.The Chairman -cum- Managing Director,
\n  Tamil Nadu Electricity Board,
\n  Anna Salai, Chennai.\n<\/p>\n
2.The Executive Engineer (I\/C),
\n  Tamil Nadu Electricity Board\/Distribution,
\n  O&M, Tuticorin Electricity Distribution
\n  Circle, Kovilpatti, Tuticorin District.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Sri Vignesh Industries vs The Chairman -Cum- Managing … on 16 April, 2009 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16\/04\/2009 Coram The HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.3074 of 2009 and M.P.(MD).Nos.1 and 2 of 2009 Sri Vignesh Industries, Rep. by its Sole Proprietor, S.Ramesh Sundar … Petitioner vs. 1.The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-102698","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSri Vignesh Industries vs The Chairman -Cum- Managing ... on 16 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sri-vignesh-industries-vs-the-chairman-cum-managing-on-16-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sri Vignesh Industries vs The Chairman -Cum- Managing ... on 16 April, 2009 - 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