The prayer in this writ petition is for a writ of certiorari calling for the records comprised in the working sheet dated 05.06.2013 on the file of the second respondent insofar as S.C.No.TF.804/TF-V falling under Samayapuram Distribution Circle and quash the same.
2. The facts which are required to be noticed for disposal of the writ petition are as follows:
(i) The petitioner is a Joint Secretary of a school called SRV Matric and Higher Secondary School at Samayapuram, Trichy District. The said institution is a self-financed institution located in vast extent of 60 acres of land. The said school is having the hostel facilities where 50 percent of the strength of the school are staying.
(ii) The petitioner started the operation of the school from the year 2006 and has put up construction for locating the school.
(iii) For the purpose of construction, the petitioner obtained commercial electricity service connection in S.C.No.712/TF II-b and also obtained another temporary service connection in TSY 5/TF- VI in the individual names of its promoters for the purpose of construction activities as the petitioner was advised that the construction activities could be undertaken only by using temporary commercial service connection.
(iv) That apart, some agricultural lands are there in that 60 acres of land where the agricultural service connection is already available when the lands were purchased for establishing the school.
(v) While so, on 20.5.2009, the second and third respondents had inspected the construction site of the school of the petitioner and they alleged that the petitioner had committed theft of electricity energy by utilising the commercial service connection for the construction purposes and therefore, levied a sum of Rs.4,98,835/-. The respondents further advised the petitioner to change the agricultural service connection into commercial connection since the petitioner was drawing water from the said lands for the purpose of school and accordingly, the agricultural service connection in S.C. No.246 was also converted into commercial service connection i.e. SC No.804/TF-V.
(vi) While so, on 05.06.2013, the respondents' team inspected the school premises of the petitioner at around 6.40 pm and inspected all the service connections i.e., HT SC.No.193/II b, TS 5 / TF-V in the name of the school and they found no discrepancies, except to point out that certain machines were connected to the commercial service connection instead of temporary service connection. The respondents thereafter, proceeded to inspect SC No.804/TF-V standing in the name of the petitioner and after inspecting the same, the respondents alleged that, the petitioner had again utilized the electricity service connection for the purpose other than what it was authorized and at the same time, termed the said action as theft of energy under Section 135 of the Electricity Act, 2003.
(vii) The respondents immediately drew a mahazar in which they observed that the meter 6 of HT SC No.93/TF 26, TS75/TF-V and SC No.804/TF-V were intact and the load test was also accurate. However, they further stated in the mahazar which reads as follows:
?a) that there was construction activities undertaken by the petitioner school for extension of the boys dining hall and a new visitors hall in the administrative building and that there was a ground sump constructed from which the water was used for the construction activities of both the extension of boys dining hall extension as well as the visitors hall and the water stored in the sump was pumped with the help of a 6 HP motor connected to the service connection in TS 5/TF-V and the water from the said motor was also pumped to the overhead tank above the girls hostel and thereafter stored and used for the construction and the girls hostel.
b) that the other service connection in SC 804/TF-V which was in the name of B.Sathyamoorthy, the Joint Secretary, SRV Matriculation and Higher Secondary School was used by pumping water from a bore well and fill in the sump and thereafter pumped with the motor connected to TS-5/TF-V and used for construction purposes.
d) that the power was taken by a cable from HT SCno:193/IIb and connected to a steel rod cutter and welding machine which was used for the construction purposes.?
(viii) Based on the aforesaid allegations, the respondents allegedly threatened the petitioner that unless they compound the offence of theft of energy, they have to face the consequence of arrest and detention. Therefore, the petitioner had agreed to compound the alleged offence and accordingly, paid a sum of Rs.24,000/- towards compounding fee. Thereafter, the respondents served the impugned working sheet calling upon the petitioner to pay a sum of Rs.2,69,970/- in the account of SC No.804/TF-V and a sum of Rs.99,710/- in the account of HT SC.No.193 / TF-II b.
(ix) Insofar as the working sheet arrived at for the service connection in HT SC 193/ TF-III b is concerned, the school had already made representation to consider the request for reducing the levy based upon the number of hours of consumption.
(x) However, the petitioner raised a dispute with regard to the conclusion arrived at by the respondents that theft of energy was noticed insofar as the SC No.804/TF-V is concerned. The said objection was raised by the petitioner on the ground that, the said service connection itself is a commercial service connection and therefore, the question of any unauthorised usage of energy does not arise in that case.
(xi) Inspite of the said objection raised by the petitioner, since the respondents insisted upon to pay the amount claimed by the respondents through the working sheet for a sum of Rs.2,66,670/-, the petitioner challenging the very working sheet, served on him, has approached this Court, by filing the present writ petition, with the aforesaid prayer.
3. In response to this writ petition and the averments contained in the affidavit filed in support thereon, the respondents, through the first respondent, has filed a counter affidavit.
4. In the counter, the respondents have stated that the petitioner is the Joint Secretary of the S.R.V. Matric and Higher Secondary School, Trichy. The petitioner is having one High Tension Service Connection No.193 under Tariff IIB for school purpose and temporary service connection SC.No.5 under Tariff VI for construction purpose inside the campus of the school. The counter further alleged that the petitioner is having Low Tension Service Connection under Tariff V for commercial purpose and the Agricultural Service Connection No.246 under Tariff IV for agricultural purpose outside the campus. The agricultural service connection was disconnected and the account was closed.
5. The counter of the respondents would further state that based on the earlier surprise inspection, compounding charges of Rs.20,000/- and compensation charges of Rs.4,98,835/- was imposed against the petitioner, who paid the same.
6. The agricultural electricity service connection in S.C.No.246 was originally granted on 15.09.1992 in the name of one MathalaiMuthu, who is the adjacent land owner. Therefore, on his request, the same was disconnected on 20.05.2009. Since there was no scope for converting an agricultural service connection into commercial connection, it was advised to the petitioner to seek for a fresh service connection on commercial tariff. Accordingly, on the basis of the petitioner's request, a new service connection was granted on 06.06.2009 in SC.No.804 under Tariff V commercial.
7. According to the respondents in the counter, on 05.06.2013, Anti Power Theft Squad inspected the service connection No.804 and found that theft of energy is committed by the petitioner. The mode of theft, according to the respondents was that, the petitioner was taking water from the well through Panchayat Road through PVC Pipe Line permanently affixed under the ground. The line is laid for 800 meters and taken for the school building and the water is used for the hostel, kitchen and construction of hall and all other activity of the school. At the time of inspection, the distance was approximately stated as 200 meters and thereafter, on measurement, the correct distance was taken as 800 meters.
8. The counter of the respondents would further state that, the respondents had assessed compounding charges of Rs. 8000/- and compensation charges of Rs.2,69,970/- in respect of the service connection No.804. The compounding charges was paid on 06.06.2013 and the compensation charges were paid on 10.07.2013. Based on the said calculations, working sheet, dated 05.06.2013 was served on the petitioner in service connection No.804 tariff V, which is now been challenged by the petitioner in the present writ petition.
9. The counter would further proceed to say that, for theft of energy committed in service connection No.804 under tariff V, provisional assessment order was passed on 06.06.2013 and final assessment order was passed on 13.06.2013. The petitioner filed the present writ petition on 10.6.2013, where the petitioner has challenged the working sheet dated 05.6.2013. Though the provisional assessment order, dated 06.06.2013 was issued on the petitioner, instead of filing objections against such provisional assessment order, the petitioner has rushed to this Court by filing the present writ petition challenging the working sheet alone.
10. I have heard Mr.R.Bharanidharan, the learned counsel appearing for the petitioner and Mr. S.M.S.Jhonny Basha, the learned standing counsel appearing for the respondents.
11. Mr.R.Bharanidharan, the learned counsel appearing for the petitioner would submit that, though there are number of service connections in the campus, where the school is functioning, for the purpose of this writ petition, the service connection in S.C.No.804 commercial tariff V alone has to be taken into account. The learned counsel would submit that, insofar as S.C.No.804 is concerned, it was on the basis of the advise given by the respondents department, the said service connection was obtained under commercial tariff, where 5 HP motor has been fitted for pumping water for various purposes of the petitioner including school purpose. However, apart from S.C.No.804, other service connections are there in the name of the school from where electricity is being utilized for all other purposes of the school.
12. The learned counsel for the petitioner would further submit that, insofar as S.C.No.804 is concerned, since it is a commercial tariff, the water being pumped by a 5 HP Motor for any other purpose cannot be termed as unauthorized usage of electricity and thereby, the respondents cannot bring the activity of the petitioner in pumping water through SC.No.804 under commercial tariff V, as theft of energy.
13. In this regard, the learned counsel for the petitioner would further contend that, the term, 'theft of energy' as has been defined under Section 135 of the Electricity Act, 2003 does not support the case of the respondents. Therefore, the very decision arrived at by the respondents on the date of inspection that the petitioner has unauthorizedly used the service connection other than the purpose for which it was authorised and thereby the said act amounts to theft of energy, is beyond the scope of Section 135 of the Electricity Act.
14. The learned counsel for the petitioner would also submit that, on the date of inspection, the respondents compelled the petitioner to agree for the compounding of offence and to pay the compounding fee, otherwise the petitioner was threatened that he would be arrested and sent to jail. Only under the said circumstances, the petitioner had agreed to pay the compounding fee. Therefore, the said action on the part of the petitioner paying the compounding fee shall not take away the right of the petitioner to challenge the decision taken by the respondents, that, the petitioner has involved in the theft of energy and also the consequential assessment order as well as the working sheet. Therefore, the learned counsel for the petitioner would state that the said action on the part of the respondents terming the action of pumping the water by using the service connection No.804 standing in the name of the petitioner under commercial tariff V cannot be construed as an act of unauthorized usage of energy and therefore, it can never be treated as theft of energy. Hence, the entire action on the part of the respondent, is vitiated.
15. Per contra, the learned standing counsel appearing for the respondents would state that, the petitioner even in the year 2009 had paid compounding fee as well as compensation charges to the respondents / department, for his unauthorized use of energy / theft of energy.
16. The learned standing counsel would state further that, even though service connection No.804 was given under tariff V commercial, it does not give license to the petitioner to utilize the said service connection for all purposes including the purpose of construction work for his school building, that too by taking water to a long way of 800 meters, permanently.
17. The learned standing counsel would further submit that, because of the action on the part of the petitioner in unauthorizedly using the electricity energy through the service connection No.804 and the same was found through the surprise visits / inspection conducted by the respondents, immediately, the petitioner's action was found to be a theft of energy and accordingly, the petitioner also had agreed upon to pay the compounding fee and he paid the same.
18. The learned standing counsel would also submit that, subsequently, based on the provisional assessment order, a final assessment order also was passed on 13.6.2013. However, in the meanwhile challenging the working sheet dated 05.6.2013, the petitioner has approached this Court by filing this writ petition on 10.6.2013. Therefore, the prayer sought for in this writ petition, cannot be granted at this juncture as in the meanwhile, the final assessment order itself, was passed. Therefore, the writ petition is liable to be dismissed.
19. I have considered the rival submissions made by both sides and the materials placed before this Court for consideration.
20. After having gone through the averments made in the affidavit filed in support of the writ petition as well as the counter affidavit filed by the respondents and the arguments advanced by both counsel appearing for the parties, this Court feels that the issue raised in this writ petition is in a very narrow compass.
21. The issue which is in controversy is, as to whether the utility of energy by the petitioner through S.C.No.804 under commercial tariff No.V for the purpose of pumping water to the school activities or any other activities next to the campus or place, where S.C.No.804 is located, amounts to unauthorized usage of energy and by thus, such action would amount to theft of energy within the meaning of Section 135 of the Electricity Act, 2003.
22. Before this Court dwells into the facts of the issue, the relevant provisions of the Act, i.e, Section 135 of the Electricity Act, 2003 can be looked into and for easy reference, the relevant portion of Section 135 of the Act is extracted hereunder:
135. Theft of electricity.- [(1) Whoever, dishonestly,-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
.................................................................?
23. As per the above said extract of Section 135, it can be found that five circumstances have been stated in Section 135(1) of the Act, out of which clauses (a) to (d) of sub section (1) of Section 135 may not be relevant for the present case, as admittedly, the petitioner's action has not been construed as an action within the meaning of the said four clauses. However, according to the respondents, the act of the petitioner in using the energy for pumping the water through S.C.No.804 would amount to usage of electricity for the purpose, which was not authorized. Therefore, it would come under clause 'e' of Section 135(1) of the Act. However, the learned counsel appearing for the petitioner would argue that the said service connection No.804 itself was a commercial service connection under tariff V and the very purpose of getting the said service connection under commercial tariff is only to tap water from the well / bore well for the purpose of utilizing the water source, otherwise the petitioner would not have requested the respondents / department to convert agricultural service connection No.246 into a commercial service connection.
24. Though it was claimed by the respondents' side that the agricultural service connection No.246 originally stands in the third party's name was disconnected on 20.5.2009 and thereafter, it was permanently closed, the SC.No.804 under tariff V commercial was given to the petitioner only on his request, of course, on the advise of the respondents.
25. At any rate, the fact remains that the erstwhile agricultural electricity service connection was disconnected and closed replacing the same by S.C.No.804 on the advise of the respondents / department. Since the petitioner had made a request to give a commercial service connection to the petitioner, accordingly, the service connection in S.C.No.804 under commercial tariff V was sanctioned to the petitioner.
26. The only purpose of getting the said service connection is to tap water from the bore well / well and pumping the water for other purposes which may include some ancillary purposes of the school or school building.
27. However, only in this regard, the respondents projected the case that the S.C.No.804, though was granted as commercial service connection under commercial tariff V, by utilizing the same, water is being tapped by the petitioner, and the said water cannot be transformed or pumped to far off places up to the distance of 800 meters or for other purposes. Therefore, the respondent claims that such kind of utility on the part of the petitioner would certainly fall under the category of clause 'e' of Section 135(1) of the Act and therefore, it can very well be construed as a theft of energy and accordingly, the impugned working sheet issued against the petitioner and the subsequent assessment as well as the final assessment made against the petitioner, are fully justifiable as they are in consonance with the said provision of the Act alone.
28. In respect of these controversy, the learned counsel for the petitioner invited the attention of this Court to the mahazar report of the respondents. In the mahazar report, the following has been mentioned :
@fPnH ifbahg;gkpl;l vd;dhy; vd; Kd;dpiyapy; lhd;b$l;nfh mjpfhhpfs; Ma;t[ bra;jdh;/ Ma;tpy; nkw;fz;l kpd; ,izg;g[ vz;/804-TF Vy; ,Ue;J kpd;rhuk; vLj;J mij xU 5 HP jpwDs;s jz;zPh; nkhl;lhUf;F kpd; ,izg;g[f; bfhLj;J mjpypUe;J btspnaWk; jz;zPiu PVC Pipe K:yk; Rkhh; 200 kPl;lh; J}uk; vLj;J te;J SRV bkl;hpf; icwah; brfd;lup !;Ty; tshfj;jpy; cs;s xU epyj;jo bjhl;oapy; ePiu nrkpj;J kpd; ePiu PVC Pipe K:yk; Rkhh; 50 kPl;lh; J}uk; vLj;Jr; brd;W m';F g[jpjhff; fl;lg;gl;L tUk; tprpl;lh;!; cwhypy; fl;Lkhdg;gzpf;F jz;zPh; gad;gLj;jp tUtija[k;. gpd;dh; epyj;jo bjhl;oapypUe;J Rkhh; 15 kPl;lh; J}uk; jz;zPiu PVC igg; K:yk; vLj;Jr; brd;W m';F g[jpjhf fl;lg;gl;LtUk; gha;!; ildp'; fl;Lkhdg;gzpf;F jz;zPh; gad;gLj;jp tUtija[k; fz;L gpoj;jdh;/ epyj;jo bjhl;oapy; pump bra;a[k; nkhl;lhh; MdJ jw;fhypf kpd;,izg;g[ vz;/75-TF VIy; ,izf;fg;gl;oUe;jJ/ Mdhy; me;j epyj;jo bjhl;of;F njitg;gLk; jz;zPh; Main source jz;zPh nkhl;lhh; 5 HP kpd; ,izg;g[ vz;/804-TF Vy; ,izf;fg;gl;oUe;jJ/?
29/ However in the statement of the respondents the following has been stated:
@gha;!; ildp'; tp!;jhpg;g[ fl;ol fl;Lkhd gzp eilbgWk; ,lj;jpw;F mUfpy; cs;s tl;l totj;jpy; cs;s epyj;jo bjhl;ow;F jz;zPh; ,g;gzpf;F tlfpHf;F K:iyapy; Rkhh; 200 kPl;lh; J}uj;jpy; ,dhk; rkag[uk; gfph;khdk; V ypUe;J 100 KVA K:yk; jhH;tGj;j kpd;ghijapy; tptrha kpd; ,izg;g[fs; ,uz;L tH';fg;gl;l kpd; fk;gj;jpy; jpU/B.rj;jpaK:h;j;jp j-bg/ ghyRg;gpukzpad; (,izr; brayhsh;) SRV bkl;hpf; icwah; brfd;lup !;Ty; tshfk; bgahpy; tH';fg;gl;l kpd; ,izg;g[ vz;/ 804/V/SIMCO/ 3 Ph/4W/10-40 Amps/100 KW 371065492 hPo!; 59839-5 MPT rPy;fs; ehd;F cs;sJ/ blh;kpdy; rPy; ,y;iy/ kPl;lh; ey;y epiyapy; cs;sJ/ ,izg;g[ Kk;Kid kpd;rhuj;jhy; ,af;fp jz;zPh; ,iwj;J PVC igg; K:yk; nkw;fz;l gs;sp tshfj;jpy; cs;s epyj;jo rk;g; bjhl;ow;F g{kpf;foapy; g[ijj;J bfhz;L brd;W epug;gp gha;!; ildp'; kw;Wk; tprpl;lh;!; cwhy; kw;Wk; gs;sp fl;ol cgnahfj;jpw;F gad;gLj;jpf; bfhz;oUe;jJ Ma;tpy; fz;owpag;gl;lJ/?
30. From the reading of statements made in the mahazar as well as in the statement cum report of the respondents, some contradictions can be easily found, especially, in the statement of the respondents, the service connection No.804 also has been shown along with other service connections as if it stands in the name of the school. Since in this writ petition, the very subject matter is only in respect of service connection No. 804 alone, insofar as the averments made on other service connections are concerned, this Court need not go into those aspects. Insofar as the service connection No.804 is concerned, it is an admitted fact that only on the advise of the respondents / department, the petitioner had made a request and obtained the said service connection on commercial basis.
31. No where in the counter affidavit filed by the respondents, it has been mentioned as to what is commercial tariff V and under the said commercial tariff V, the electrical energy can be utilized for what purposes.
32. The petitioner obtained the said service connection No.804 for the purpose of tapping water and only for that purpose, he fitted a 5 HP Motor and pumped the water. Assuming that the said water being pumped out by utilizing the energy of service connection No.804, whether that would amount to unauthorized usage of energy, is yet another question for which, there is no direct answer from the respondents either in their statements or in their counter affidavit filed before this Court. Moreover, according to the working sheet, which is impugned herein, the respondents have given a calculation that, unauthorized tariff amount is 6222 x 10.50 and authorized tariff amount is 6222 x 5.50. From the said calculation, one can infer that the petitioner has been given service connection No.804 under commercial tariff V for which the rate of electricity per unit is Rs.5.50 and the usage now made or has been deducted by the respondents under the said service commission, is to be fixed as commercial activity with a rate per unit of Rs.10.50. This calculation is only based on an assumption, as there is no details being given any where in the documents filed before this Court including the counter affidavit of the respondents. Unless the respondents come forward to state that the activity of pumping water by using the energy under service connection No.804 would not come under tariff V and would come under a different tariff, that should have been specifically, mentioned or stated in the statement itself.
33. Moreover, when the petitioner for the specific usage of pumping water wanted a service connection on a commercial basis, it was only advised by the department and based on which only, the petitioner obtained the service connection No.804. This is evident from the statement given by the respondents in the counter affidavit itself and the relevant portion of the same is extracted hereunder for better appreciation:
? I respectfully submit that the averment in paragraph 3 of the affidavit, the petitioner alleged that the respondent advised the petitioner to change all the agricultural service connections into commercial connections. It is denied as false since there is no provision for conversion of the free agricultural service connection to any other service. The petitioner was drawing water drawn from the free agricultural service, after commission of theft it is seen there was no agricultural activities and therefore, the agricultural service disconnected permanently. After disconnection when the petitioner was seeking a service connection it was advised to get the service connection under commercial tariff. Therefore, a new service connection was granted on 06.06.2009 in SC.No.804 under Tariff V commercial.?
(Emphasis Supplied)
34. Therefore, when the petitioner sought for an alternative commercial service connection for the particular purpose, it was only the respondents, who advised the petitioner to get tariff V commercial service connection and accordingly, S.C.No.804 was sanctioned to the petitioner. However, the petitioner by using the said service connection pumped water and the said activity now is being construed by the respondents as an unauthorized usage of energy and by thus, it was alleged that the petitioner has involved in theft of energy. These conclusions arrived at by the respondents, without any acceptable reasons or basis, as no tariff rate or detail with regard to commercial tariff V since has been given by the respondents, in the opinion of this Court, cannot be accepted.
35. In view of the above said facts and circumstances, this Court is of the considered view that, the impugned working sheet served on the petitioner on the basis of the decision taken by the respondents that the activity of the petitioner in tapping and pumping water by utilizing the energy supplied through the service connection No.804 under tariff V commercial, is not based on any scientific calculation and without any support. Therefore, the impugned working sheet is erroneous and unjustifiable and therefore, it has to be interfered with.
36. The respondents in their counter also have stated that subsequent upon the issuance of the impugned working sheet, provisional assessment as well as final assessment have been made against the petitioner.
37. Since the impugned working sheet itself, is defective and not based on any intelligible scientific data supported by tariff rate of the respondents, the consequential assessment orders said to have been made against the petitioner, cannot have any effect. Therefore, considering all the above aspects, this Court is of the firm view that the impugned order is liable to be interfered with.
38. In the result, the following orders are passed in this writ petition:
(i) The impugned working sheet is quashed; The matter is remanded to the respondents for reconsideration;
(ii) On reconsideration, it is open to the respondents to generate fresh working sheet where all the details required as indicated in this order can be provided;
(iii) On receipt of such working sheet afresh, it is open to the petitioner to respond the same;
(iv) Thereafter, after providing a reasonable opportunity of being heard to the petitioner, the final assessment can be made by the respondents;
(v) Since the working sheet itself, is quashed and the matter is remitted back, the consequential provisional assessment order as well as final assessment orders dated 06.06.2013 and 13.6.2013 said to have been issued by the respondents shall have no effect.
39. Accordingly, the writ petition is ordered in the above terms. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Executive Engineer, O & M, TANGEDCO, Srirangam, Trichy District.
2. The Executive Engineer, O & M, TANGEDCO, Samayapuram, Trichy District.
3. The Assistant Executive Engineer (Enforcement), TANGEDCO, Trichy-20.
.