(Prayer in W.P.(MD).2347/2009: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records of the order of the second respondent made in Lr.No.SE/DEDC/DGL/AEE/G.1/A.E2/F.DSRM/D.No.698/2008, dated 12.06.2008, as confirmed by the order of the first respondent in Appeal No.1, dated 28.01.2009, and to quash the said orders of the second and first respondent, dated 12.06.2008 and 28.01.2009.
Prayer in W.P.(MD).8957/2012: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records relating to the order of the 1st respondent bearing Lr.No.SE/DEDC/DGL/AEE/GL/AE.I/R.HT Doc/D.No.1935/11, dated 07.12.2011 and to quash the same and consequently, to direct the respondents to forthwith provide the conversion of 22KV HT supply to 33 KV HT supply to petitioner's HT SC.196 without insisting the payment of Rs.68,63,191/- pending in petitioner's HT SC/No.196 towards theft of energy case detected by APTS on 16/08/2001.
Prayer amended as per the order of the Court dated 10.07.2012 in MP.2/2012
Prayer in W.P.(MD).8966/2012: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records relating to the order of the 1st respondent bearing Lr.No.SE/DEDC/DGL/AEE/GL/AE.I/F.HT Doc/D.No.713/12, dated 14.06.2012 and to quash the same and consequently, to direct the respondents to forthwith provide dedicated feeder unit to the petitioner's HT SC No.297 at Karur Road, Kulathur Post, Dindigul District without insisting the petitioner to pay a sum of Rs.68,63,191/- payable by the sister concern of the petitioner company M/s.Dindigul Steel Rolling Mills (P) Ltd., Karur Road, Dindigul in respect of HT SC No.196 towards the alleged theft of energy case detected by APTS on 16.08.2001. (Prayer amended as per the order of the Court dated 10.07.2012 in MP.2/2012)
Prayer in W.P.(MD).9357/2012: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records relating to the order of the 1st respondent bearing No.SE/DEDC/DGL/AEE/GL/AE.I/F.HT Doc/D.No.645/12, dated 31.05.2012 and to quash the same and consequently, to direct the respondents to forthwith provide the additional demand of 2045 KVA over and above the existing demand of 2000 KVA to petitioner's HT SC No.196 at Kolathur, Dindigul, without insisting the payment of Rs.68,63,191/- pending in petitioner's HT SC No.196 towards the alleged theft of energy case detected by APTS on 16.08.2001.)
Common Order 1. All the above four writ petitions were filed by the same private limited company.
2. In the first writ petition viz., W.P.(MD).No.2347 of 2009, the petitioner sought to challenge the impugned order dated 12.06.2008, which was confirmed by the Appellate Tribunal / Chief Engineer, Tamil Nadu Electricity Board (TNEB) vide order dated 28.01.2009.
3. In that case, energy theft was detected in the petitioner/company on 16.08.2001 and a show cause notice was given on 18.08.2001. As against the said show cause notice, the petitioner/company filed a suit in O.S.No.403 of 2001 before the Sub-Court, Dindigul. But the said suit was dismissed. Thereafter, C.M.A.No.48 of 2003 preferred before the District Court and the same was also dismissed. The petitioner, thereafter, filed Writ Petition before this Court in W.P.No.4347 of 2006 against the Electricity Board claiming that the proceedings would have to be carried out under the Electricity Act, 2003. The said writ petition was also allowed. Thereafter, the Board preferred Writ Appeal in W.A.No.107 of 2007. The Division Bench of this Court by order dated 05.08.2008 permitted the Electricity Board to proceed with the energy theft case of the petitioner as per the Terms and Conditions of Supply.
4. After the disposal of the writ appeal, the Superintending Engineer, Dindigul Electricity Distribution Circle, after giving opportunity to the petitioner, passed the impugned order dated 12.06.2008 and fixed the liability of the petitioner as Rs.1,43,10,791/- for the energy stolen and after giving credit to the amount already paid, directed to pay the balance amount of Rs.1,25,44,791/- in 15 instalments. Aggrieved by the said order, the petitioner filed an appeal before the appellant authority. Before the appellate authority viz., Chief Engineer, an enquiry was conducted in the appeal on 03.10.2008 and by a final order dated 28.01.2009, the appeal was rejected stating that the evidences collected by the officials substantiated the theft of energy.
5. When the said writ petition came up on 18.04.2009, this Court directed the respondents to file counter. Subsequently, the writ petition was admitted on 24.08.2009. On 13.03.2009, this Court recorded that the petitioner had already paid Rs.60 lakhs out of the demand of Rs.1.42 crores and therefore, an conditional order of interim stay was granted on condition that the petitioner deposits a sum of Rs.15,00,000/- within four weeks.
6. On notice from this Court, the respondents have filed a counter affidavit dated 20th October 2009. An additional typed-set was also filed by the petitioner.
7. During the pendency of the said writ petition, the same company/petitioner filed second writ petition in W.P.(MD).No.8957 of 2012. In that writ petition, initially the prayer was for a direction to the respondents to provide the conversion of 22 KV HT supply to 33 KV HT supply to the petitioner's HT SC No.196 and to provide the additional demand of 2045 KVA over and above the existing demand of 2000 KVA to the petitioner's HT SC.No.196 without insisting the payment of Rs.68,63,191/- pending in petitioner's HT SC No.196 towards theft of energy case detected by APTS on 16.08.2001. But, however, since the said request was declined, by order dated 07.12.2011 by stating that after the clearance of arrears amount of Rs.68,63,191/-, the issue of giving additional loan will be considered, the petitioner made amendment petition by filing M.P.(MD).No.2 of 2012t to amend the prayer and it was ordered on 10.07.2012.
8. However, on 23.07.2012 this Court granted an interim direction directing the respondents to provide the conversion of 22 KV HT supply to 33 KV HT supply to petitioner's HT SC No.196 and further to provide the additional demand of 2045 KVA over and above the existing demand of 2000 KVA to petitioner's HT SC No.196 without insisting the payment of Rs.68,63,191/- pending in petitioner's HT SC No.196 towards theft of energy case detected by APTS on 16.08.2001.
9. Subsequently, when that writ petition came up on 16.08.2012, this Court directed that the said writ petition could be listed along with the first writ petition.
10. On notice from this Court, the respondents have filed a counter affidavit, dated 10.08.2012.
11. The petitioner, thereafter, filed another writ petition in W.P.(MD).No.8966 of 2012 seeking for providing dedicated feeder unit to the petitioner's HT SC No.297 at Karur Road, Kulathur Post, Dindigul, without insisting the old payment connected with the energy theft case. When that demand was rejected by order dated 14.06.2012, the petitioner made an amendment petition by filing M.P.(MD).No.2 of 2012 and sought to challenge the order dated 14.06.2012. The said writ petition is yet to be admitted. In that writ petition, a counter affidavit dated 10.08.2010 was also filed.
12. Thereafter, the petitioner has also filed another writ petition in W.P.(MD).No.9357 of 2012 seeking to challenge the order dated 31.05.2012 passed by the 1st respondent (Superintending Engineer) and for consequential direction to provide additional demand of 2045 KVA over and above the existing demand of 2000 KVA to petitioner's HT SC No.196 at Kolathur, Dindigul, without insisting the payment in connection with the energy theft case. By the impugned order dated 31.05.2012, the petitioner was informed that due to the pendency of the previous writ petition in W.P.(MD).No.2347 of 2009 and also the non-payment of variations, his application for an additional demand cannot be considered and his application was returned. In that writ petition, a counter affidavit dated 10.08.2011 has been filed.
13. Pending all the said three petitions, in a common order dated 23.07.2012 this Court granted interim direction for the grant of connection.
14. Since virtually the petitioner's/company's entire relief was granted, by way of the interim direction granted by this Court, there is nothing for adjudication in W.P.(MD).Nos. 8957, 8966 and 9357 of 2012 and the fate of these three writ petitions and interim directions depends upon the out come of the result of the first writ petition in W.P.(MD).No.2347 of 2009. Hence, the writ petition in W.P.(MD).No.2347 of 2009 is taken up first for disposal.
15. The contention raised by the petitioner in W.P.(MD).No.2347 of 2009 was that in W.A.No.107 of 2007, this Court directed the respondents to proceed with the case as per the old Act, notwithstanding the coming into force of the Electricity Act, 2003. Consequent upon the said order, the show cause notice issued in the year 2001 was pursued by the Electricity authority. The petitioner gave an explanation denying all the charges, pointing out that there was no theft of energy and all the seals including the gate seal, top chamber seal and the bottom chamber seal were genuine and there was no tampering of any instrument. Inspecting Authorities themselves noted that there was no theft of energy found at the time of inspection and the only allegation was that in the seal of the bottom chamber, one side of the wire was found cut and inserted and the insulation was found lose, from which the respondents were inferring that the petitioner had committed mal practice. The petitioner pointed out that the seal in the bottom chamber was removed by the officials on 16.06.2001 and after replacing the indicator lamps inside them, closed the chamber and sealed the same and the petitioner had not done anything to the instruments or to the seals or wires. The petitioner has also produced the records for production and the production records remained the same and the pattern of energy consumption remained the same. The petitioner pleaded that the tamper display analysis could be downloaded from the meter and studied, which would show that there is no tampering of seal or theft committed. The load survey graphs could also be compared in order to ensure that there was no tampering or theft committed. However, in the enquiry, the load survey graph was only given for a limited period and it was not compared with the connections. The tamper display analysis, which is a crucial document, was not furnished on the ground that the meter was an old version and hence, there was no provision for tamper display analysis to be downloaded, which was factually a mistake since the meter installed bears the number TEG 01766, which admittedly has all the features of tamper display analysis. The alleged theft was not proved by the materials on record and the appellate authority has also committed a grave error. The petitioner has also placed the relevant records including a copy of the FIR, Observation Mahazar and minutes of the enquiry proceedings. The petitioner has also produced the chart of the EB units consumed for the year 2001-2002 and individual electricity bill and receipt of the electricity bill to show that there was no change in electricity consumption for the subsequent years and to infer that there there was no energy theft.
16. A reliance was also placed upon a judgment of the Honourable Supreme Court in AIR 1966 SC 849 (Jagannath Sigh Vs. Ramaswamy) for contending that in case of energy theft, tampering with meter and taking of unauthorised energy is prima facie evidence of dishonest abstraction and the prosecution must prove aliunde that the accused made the abstraction.
17. Reference was also made to the judgment of this Court reported in 2001- 1 LW (Crl) 379 (TNEB, etc Vs. A.Mani and another) to contend that in case of action under Section 39 of the Electricity Act, burden is on the prosecution to show that there was theft of energy.
18. Addmittedly, both the said judgments arose under the criminal law and in the present case, it is not the prosecution for energy theft, but on the petitioner being the consumer is bound to the terms and conditions of supply.
19. In the counter affidavit filed by the respondents it is stated that the petitioner is having a high tension consumption unit under HTSC No.196, which was initially effected on 27.11.1997 with sanctioned demand of 500 KVA and therefore, additional demand of 500 KVA granted on 02.03.2001, thereby the total demand of the petitioner is 1000 KVA. On 16.08.2001, at about 10.00 hrs the HTSC 196 located at SF No.414/4, Karur Road, Kulathur Village,Vedasandur Taluk, was inspected by Assistant Executive Engineer/NII/Dindigul, Assistant Executive Engineer, MRT Dindigul and Assistant Executive Engineer, APTS, Dindigul with his squad after issuing notice to the petitioner's representative Thiru.V.Shanmugam, who is the in-charge of the concerned. During the inspection it was found that there was theft of energy by cutting the sealing wire of the MRT security seal provided in the bottom chamber of meter security box and tampering with the test terminal block terminals by short circuiting the C.T terminals and disconnecting the potential lead and thereby bypassing the meter from recording the energy utitlised by the industry. By committing the said offense the petitioner dishonestly consumed energy with intend to defraud the Board, thereby the petitioner caused loss of revenue to the Electricity Board. The said offence is punishable under Section 39(1) and 44(1)(C) of Indian Electricity Act 1910. A police complaint was also lodged and registered under Cr.No.722 of 2001 and a mahazar was also recorded at the scene of occurrence. Due to the theft of energy, the petitioner has caused a loss of Rs.1,43,10,791/-. Hence, a show cause notice was issued to the petitioner on 18.08.2001. Thereafter, series of proceedings were initiated including civil suit, Civil Miscellaneous Appeal, writ petition as well as writ appeal. In the writ appeal, a directed was given by this Court to proceed with the proceedings in respect of theft of energy of the petitioner under the old Electricity Act. Pursuant to the said direction of this Court, the respondents issued enquiry notice to the petitioner and the petitioner was given an opportunity of explaining his case with evidence. During the enquiry, the Officials of the Board, who were present during the inspection of theft of energy, were also called for to attend the enquiry. The enquiry was conducted on 16.04.2008, 28.04.2008 and 15.05.2008 before the 2nd respondent / Superintending Engineer, TNEB, Dindigul, in the presence of the petitioner. Based on the enquiry, a detailed order dated 12.06.2008 was passed fixing the liability of Rs.1,43,10,791/- towards theft of energy as per the terms and conditions of the Board. As against the said assessment order, the petitioner preferred an appeal to the 1st respondent / Chief Engineer. The 1st respondent, after giving personal hearing to the petitioner, has dismissed the appeal vide order dated 28.01.2009. As on date, the petitioner has paid only a sum of Rs.74,47,600/- and remaining huge amount of Rs.68,71,191/- is due from the petitioner.
20. With reference to the actual commission of offence, the respondents in the counter affidavit in paragraphs 8 and 9 have stated has follows:-
"8..... In respect of HT consumers, the meter and other setup are put in a separate metal chamber which also fenced and the entrance of the said fence is also under seal. It is submitted that every month the external fence door alone opened by removing the seal for taking reading and other checkups. Even though there is a fence, it is possible that, a person can enter inside the fence without opening the gate and disturbing the gate seal. Further, inside the fence the entire setup of meter and other things will be kept in metal chamber with seal. The metal chamber contains two parts with two doors and in the upper portion of the metal chamber the meter alone is erected and the door of the upper chamber is closed with seal. The lower portion of the chamber provided with a separate door and seal. In the lower chamber contains lamp indicators, Test terminal block and Fuse control for the purpose of conducting load checkups by the Board.
9.) I respectively submit that on 15.06.2001 officials of the board opened the lower chamber and changed the Lamp indicators and closed the lower chamber and subsequently put seal on the door also. It is submitted that on 16.08.2001 on inspection by APTS wing it was found that the seal wire in the lower chamber is removed but it was put in such a way by simply inserting the said wire in the seal. By mere looking of the seal, it seems the same is proper but on touching the seal wire the officials found that the same is disconnected already and only temporarily put in its position. Admittedly, on the prior inspection that is on 15.06.2001 a new seal is fixed with a proper wire. The manipulation in the seal setup is done only by the petitioner. As per the clause 17.02 of Terms and Conditions, the petitioner is duty bound to maintain the seals and responsible for any damage and tampering."
It is further stated that the petitioner by way of by-passing the meter recordings has committed the theft of energy and as per the meter available in the petitioner's premises, the meter is not having the capacity of storing the data for a long time and it was found that a person can enter inside the fence without cutting the seal. The decision arrived at by the Board was not by inference, but based on material things by way of inspection conducted after giving notice. Further, load survey graphs are not relevant for deciding the theft of energy.
21. It must be noted that the petitioner for the last ten years has dragged the Electricity Board from court to court and even it should be under the old Act, it has taken sufficient time. A perusal of the enquiry report shows that there has been evidence let by the Board regarding tampering of meter and seal of chamber. It is also specifically explained that from the cutting of the sealing wire in the bottom chamber of the meter security box, it can be inferred that there has been tampering of the meter and energy consumption. The fact that the subsequent months' productions remained the same and the energy consumption remained the same, does not indicate the stand of the petitioner. The respondents have conducted proper enquiry and established that there was theft of energy and also made an assessment of the loss caused to the Board and this Court do not consider that any case has been made out by the petitioner to interfere with the impugned orders passed by the respondents. Hence, the writ petition in W.P.(MD).No.2347 of 2009 is liable to dismissed.
22. In view of the decision taken in W.P.(MD).No.2347 of 2009, the other writ petitions in W.P.(MD).Nos.8957, 8966 and 9357 of 2012 shall also stand dismissed.
23. By way of interim orders the petitioner is enjoying the additional loan. The continuation of the additional loan will be subject to the petitioner paying the old charges covered by the writ petition in W.P.No.2347 of 2009. If that amounts are not paid within 12 weeks, it is open to the Board to refuse the additional loan as correctly held in the impugned orders.
24. With the above observations, all the above writ petitions are dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.