D. BALASUNDARAM Vs. CHAIRMAN TAMIL NADU ELECTRICITY BOARD

JUDGEMENT

(1.) This writ petition has been filed challenging a provisional assessment order passed by the second respondent under Section 135 / 138 of the Electricity Act, 2003 (for brevity "the Act") for alleged theft of electrical energy giving liberty to the petitioner to file his objections. The approximate loss caused by the petitioner due to dishonest abstraction of electricity has been provisionally assessed at Rs.1,02,861/-. Along with the provisional assessment order, a working sheet has been enclosed showing as to how the provisional loss has been assessed.

(2.) The petitioner's case is that he owns 11 acres of agricultural lands in Kunnathur, Annur Taluk, Coimbatore District, out of which, an extent of 3.60 acres has been set apart for Matriculation School in the name and style of Sree Matriculation School. The respondent Board has granted an agricultural service connection bearing No.478 having capacity of 7.5KW which has been granted under Tariff IV. It is stated that the Matriculation School has been established and administered by a Trust in which the petitioner's wife is one of the trustee and the School has got 190 students with 17 staff members. The school has been granted two separate electricity connections both being low tension connections and they are live. It is stated that on 19.07.2013, the second respondent inspected the agricultural service connection No.478 and observed that there was unauthorized use of electricity as a bore well was operated using the said service connection for supplying water to the Matriculation School. The petitioner would state that the water was pumped out by using the said electricity service connection for supply of water to the School as an emergency measure as there was lack of water supply through the regular channel. Pursuant to the said inspection, a notice was issued to the petitioner alleging that there is unauthorized use of electricity. The petitioner's case is that if the allegation is of unauthorized use of electricity, the same would fall under Section 126 of the Act for which the petitioner has been issued a communication and a sum of Rs.4,000/- was collected from the petitioner. Subsequently, the impugned provisional assessment order was issued to the petitioner under Section 135 of the Act alleging theft of electricity calling upon the petitioner to pay a sum of Rs.1,02,861/-. The petitioner is stated to have explained to the second respondent that no electrical network of the School was connected with the agricultural service connection No.478, no equipment or motor of the School was connected to SC 478 as it was physically impossible to do so as the distance is more than 165 meters away from the School. Further, it is stated that the second respondent did not find any electrical installation of the School connected to SC 478 and therefore, there can be no theft falling under Section 135 of the Act. The petitioner would further state that since there was a threat meted out with dire consequences, he had paid a sum of Rs.1,02,861/- on 19.07.2013 itself under protest. Further the petitioner would state that the physical condition of the agricultural farm will clearly prove that there has been no deliberate attempt to supply water from the agricultural service connection. The petitioner questions the estimation done by the second respondent to be not in accordance with Section 126 of the Act read with Rule 19 of the Supply Code. Further the calculation made shows that 150 litres of water would have been consumed per person in the school which is too high for 7 hours sanitation requirement as on an average a maximum of 5 litres per person alone would be required and hence, the calculation of quantum of power for the water used in the school is highly erroneous and even if at all power is calculated, the power should have been calculated for a maximum of 1000 litres. Further the petitioner would state that the second respondent has estimated that 7168 units of power was diverted from SC 478 which is baseless since the TANGEDCO in their letter dated 08.02.2013 to the TNERC has claimed only Rs.2500 per H.P. per annum from the Government of Tamil Nadu as subsidy payable for free power supply for agricultural pumpsets and the TNERC by its order dated 24.07.2013 has allowed only this amount and further has estimated the cost of supply for LT services at Rs.5.45 per unit. Therefore, it is stated that even if the alleged use of 2 KW for the purpose of school is accepted for argument sake, the total power consumption for water diverted would amount to only 1231 units for 2 KW and not 7168 units as estimated by the second respondent and therefore the charges can be levied only for 1231 units. Further adopting the same calculation even with the penalty of 100%, the levy of additional charge can only be Rs.13,404/- per year as against Rs.1,02,861/- claimed by the second respondent. Further the second respondent has assumed that the school functions for 365 days in a day and 12 hours per day which is totally wrong as the school functions only for about 220 days in a year and that too for 7 hours per day as per the directions of the Government of Tamil Nadu. Hence, the calculation is arbitrary and illegal.

(3.) The learned senior counsel appearing for the petitioner after setting out the above contentions raised by the petitioner in the writ petition submitted that the second respondent failed to appreciate the fact that the act of the petitioner would fall under Clause (b) of sub-section (iv) and of explanation clause of Section 126 of the Act and at best could only be a case of use for the purpose other than for which usage of electricity was authorized or it could be a case of use of connection for the premises or areas other than those for which the supply of electricity was authorized and definitely not a case of theft of energy under Section 135 of the Act, hence the impugned proceedings are wholly without jurisdiction.