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Judgment
77 paragraphs · 1,748 wordsKanakaraj, J.—The Petitioner owns an agricultural land measuring 15-17 acres in Section No. 33, Parapatti Village, Salem Taluk. On 24-
11-1983, the Petitioner applied for electricity supply for agricultural purposes to run a 10 H.P. motor in the lands belonging to him. By a letter
dated 28-12-1984, the Petitioner was informed that he could keep the motor pump-set ready within 3 days from the date of receipt of the said
letter so that the Respondents will give electricity supply to his well. The Petitioner states that he dug a bore-well at a cost of Rs. 20,000 and
installed a submersible 3 H.P. motor at a cost of Rs. 15,000. He also claims to have spent a sum of Rs. 10,000 towards laying pipes and for other
incidental expenses.
By a notice dated 12-12-1985, the first Respondent informed the Petitioner that an inspection was made on 23-11-1985 and it was found that
the Petitioner had been illegally abstracting electrical energy by directly hooking wires from the overhead lines. It was further stated that the
electrical energy stolen by the Petitioner was worked out at Rs. 42,970 and along with supervision charges of Rs. 50, the Petitioner was called
upon to deposit a sum of Rs. 43,020. A working sheet was attached to the said letter but the working sheet did not convey any meaning except to
state that the energy was calculated for a period of one year prior to the date of inspection. By a further letter dated 26-12-1985, a provisional
assessment was made and it was alleged that the Petitioner had pilfered electrical energy to the extent of Rs. 42.970. On 24-1-1986, the Petitioner
sent a reply denying the allegations and also stating that criminal cases had been filed by the Respondents and, therefore, it would be proper to
await the result of the criminal cases. It was also pointed out that the Petitioner had an altercation with one Mr. Balasubramaniam, Assistant
Divisional Engineer. The said officer challenged the Petitioner and stated that he will deny electricity supply to the Petitioner and also teach him a
lesson. According to the Petitioner, the allegations of theft is nothing but the result of the said threat. On 27-4-1986, the second Respondent
purported to give certain ^particulars regarding the amount demanded. In this letter, it is seen that the energy allegedly lost by the Respondents was
calculated on the basis of an actual connected load of 10 H.P. On 25-6-1986, a final assessment was made, confirming the preliminary assessment
for Rs. 43,020. It was stated in this letter that the Petitioner can file an appeal after paying the amount demanded. Again, on the basis of an
inspection made on 27-12-1985, a similar demand was made for Rs. 4,110. By Judgments dated 19-12-1989, criminal cases, C.C. Nos. 193 of
1986 and 325 of 1986 filed against the Petitioner ended in acquittal. The Petitioner, therefore, wrote during February, 1988 seeking supply to his
Survey field No. 33, Parapatti Village. The Petitioner''s writ petition, W.P. No. 14950 of 1990 to quash the order dated 25-6-1986 was
dismissed by Govindasamy, J. on the ground that the appeal preferred against the final assessment was pending. A lawyer''s notice was issued on
23-11-1990 demanding disposal of the appeal filed by the Petitioner against the two assessments based on the inspection made on 23-11-1985
and 27-12-1985. The impugned orders were passed on 3-12-1990. one relating to the demand for Rs. 43,020 and the other relating to the
demand for Rs. 4.110. The so called appellate order does not say anything except the appeal was considered carefully and the amount was
calculated in accordance with the Board''s Regulations. A working sheet was enclosed in respect of such demand. The working sheet only says
that on the basis that the Petitioner had availed electricity supply by illegal means to his 10 H.P. motor for a period of one year prior to the date of
inspection, the charges were worked out. The Petitioner has also filed another writ petition, W.P. No. 13429 of 1990 seeking electricity supply to
Survey No. 33, Parapatti village but no interim orders were given on the ground that the orders demanding Rs. 43,020 and Rs. 4,110 had, not
been challenged. In this writ petition, the Petitioner is challenging the appellate order dated 3-12-1990 in respect of both the demands of Rs.
43,020 and Rs. 4,110.
A counter-affidavit has been filed by the Respondents. The contention of the Respondents is that even though the Petitioner was acquitted of the
criminal cases, the liability to pay compensation to the Respondents for the loss incurred by the Respondents cannot be denied. The allegations of
mala fides are denied. It is also stated that the Petitioner has a Service Connection No. 60 under Tariff V. Inasmuch as the Petitioner did not
comply with the demand for payment of the total sum of Rs. 43,130, the amount has been included in respect of the Service Connection No. 80 in
the name of the Petitioner. It is also stated that the Petitioner has filed a suit, O.S. No 539 of 1990 and the same is pending. So far as the appeals
filed by the Petitioner are concerned, it is stated that the appeals were duly examined and there being no substance in the appeals, they were
dismissed.
On the above pleadings, the only question to be decided is whether the Respondents had a lawful claim against the Petitioner for the sums of Rs.
43,020 and Rs. 4,110 on the basis of the inspection made on 23-11-1985 and 27-12-1985. I am totally at a loss to find out any tangible material
in support of the claim of the Respondents.
First of all. the Respondents seem to have proceeded on the footing that the Petitioner has electricity supply to the said Survey No. 33, Parapatti
Village. There does not seem to be any basis for invoking the terms and conditions of the supply when the Petitioner is not at all a consumer in
respect of the said Survey Field No. 33, Parapatti, Village.
Therefore, the Respondents do not seem to be on good ground in invoking the terms and conditions of supply for calculating the alleged loss
suffered by them. Therefore, it is a simple case of a person committing theft of electrical energy by tapping energy from overhead lines and using
the same for the motor pump-set in the Survey Field No. 33, Parapatti Village. This is only an allegation of the Respondents. So long as the
Petitioner is not a consumer in respect of the said Survey Field No 33. the only method by which the Respondents can recover the loss, if any,
suffered by them is to file a suit and prove to the satisfaction of a Civil Court that the Petitioner had abstracted electrical energy to the extent of
21.485 units in the first case and 2,030 units in the second case. It passes one''s comprehension as to how the Respondents can invoke the terms
and conditions of the supply, in a case like this and proceed to make the assessment on a basis totally unknown to law. I do not think any civil
court can accept the loss said to have been suffered by the respondents on the basis of the materials placed before this Court. Even the very
allegation of theft has been denied by the Petitioner and the prosecution has ended in acquittal. Therefore, it is for the Respondents to prove that
the Petitioner had committed theft of electrical energy. There is absolutely no evidence to show that the Petitioner has committed theft nor the
Respondents either in the pre-assessment notice or in the assessment order or in the impugned appellate order have referred to any piece of
evidence to show that the Petitioner had committed theft, Without this basic fact being properly proved, I do not know how the question of
calculating damages at all arises. The Respondents proceed as if the Petitioner had committed theft continuously for a period of one year prior to
the dates of inspection, there is absolutely no scope for such assumption. While I do not want to minimise the crime of theft of electrical energy if it
could be properly proved, I do not appreciate the manner in which the Respondents are taking action in such cases.
In B. Venugopal Mudaliar v. Tamil Nadu Electricity Board, rep. by its Chairman, Madras-2 and Ors. W.P. No. 125 of 1990, dt. 19-12-1990,
Mishra, J. has dealt with an identified case of theft of electrical energy. Before the learned Judge, the contention raised was that the show-cause''
notice was vague and the principles of natural justice had been violated. The same arguments are available in this case also, because the show-
cause notice and the impugned orders are almost in identical terms. Mishra, J. had no difficulty at all in holding that the impugned order in the said
case was totally without jurisdiction and accordingly it was set aside. I am in respectful agreement with the learned Judge and I follow the ratio laid
down in the said case. Besides the reasons given in the said judgment, I have given above the additional grounds on which the impugned orders are
liable to be set aside.
The last submission made by the Learned Counsel for the Petitioner was that the matter may be remitted back to the authorities to enable them
to conduct proper enquiry. I would have normally accepted the said suggestion but for the fact that the Petitioner has not even been supplied with
electrical energy for Survey Field No. 33. Therefore, in my view, the Respondents cannot proceed to estimate the alleged damages against the
Petitioner. The only remedy of the Respondents in a case like this is to file a writ and prove the factum of theft and the actual damages suffered by
them. Therefore, I am not inclined to accept the suggestion to remit the matter back to the authorities. I am clearly of the opinion that the impugned
orders and the orders of assessment are liable to be set aside and, they are accordingly set aside. The writ petition is allowed with costs. Counsel''s
fee Rs. 500.
Kanakaraj, J.
The prayer for supply of electricity to Section No. 33 Parapatti village, will now be taken up for consideration by the Respondents in accordance
with the judgment rendered above and orders passed at an early date, at any rate, on or before 15-3-1991.