The Superintending Engineer Vs a.Packiam Edwin Jeyakumar

6.The Assistant Accounts Officer Revenue Branch TANGEDCO Lalgudi 621 601 ...Appellants/ 1to 6 Respondents Vs 1.A.Packiam Edwin Jeyakumar ....1^st Respondent/Writ Petitioner 2.Shanthi ....2^nd Respondent/7^th Respondent

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Prayer: Writ Appeal filed under Clause 15 of Letters Patent, to set aside the order dated 07.09.2020 passed inn WP(MD).No.23706 of 2016.

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For Appellants : Mr.S.Deenadhayalan For Respondents :Mr.R.Subramanian for R1

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:No appearance for R2

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J U D G M E N T

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(Made by R.VIJAYAKUMAR,J. )3456

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The respondents 1 to 6 in WP(MD).No.23706 of 2016 (TANGEDCO)

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have filed the present writ appeal challenging the order dated 07.09.2020 wherein an order of final assessment under Rule 23-AA of Tamil Nadu Electricity Supply Code has been set aside.

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2.The officials of the appellant Corporation had conducted an inspection in Survey No.4/2 in V.Duraiyur Village which was owned by the

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writ petitioner. On inspection, it was found that the service connection in S.C.No.436 has been given only to the adjacent survey number namely Survey No.3/1 which is owned by one Shanthi. However, by way of direct hooking method, electricity had been drawn by the writ petitioner to his Survey No.3/1 for operating 7.5 H.P motor for agricultural purposes.

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3.Based upon the inspection report, an F.I.R was registered in Samayapuram Police Station in Crime No.282 of 2016 on 12.07.2016 under Section 135(1)(a) of Electricity Act, 2003 as against the writ petitioner. It is informed that the said FIR has been closed by the police authorities on a later date.

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4.TANGEDCO had issued a Provisional Assessment Order on 05.07.2016 claiming a sum of Rs.1,41,040/- for committing theft of energy due to direct tapping. A working sheet was also annexed to the Provisional Assessment Order. However, no explanation was submitted by the writ petitioner. The Final Assessment Order was issued on 19.07.2016 which was impugned in WP(MD).No.23706 of 2016.

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5.According to the writ petitioner, his grandmother Savariammal was cultivating Survey No.4/2 for which Service Connection No.436 was obtained in her name. She was the owner of the adjacent survey number namely Survey No.3/1 and there was another borewell in the said survey number. Since there was no connection for S.No.3/1, his grandmother had 3/10

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obtained permission from the authority and extended the service connection to Survey No.3/1. When the service connection has been obtained only for

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Survey No.4/2, the authorities were not right in holding that there is no service connection for Survey No.4/2.

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6.The writ petitioner had further contended that after the death of his grandmother in the year 2006, Survey No.3/1 devolved upon her granddaughter who had sold it to one Shanthi. As per the said sale deed, the Service Connection No.436 was sold to the said Shanthi. In fact, the grandmother Savariammal has no right to sell the electricity service which is attached to Survey No.4/2. Therefore, the writ petitioner had sent representation to the authority not to transfer the name of the service connection in the name of Shanthi. Ignoring the representation, the authorities have transferred S.C.No.436 in the name of Shanthi. Therefore, the transfer in the name of Shanthi is not legal. In such circumstances, when the electricity was used only for Survey No.4/2 (for which the service connection in S.C.No.436 has been given), the issue of theft of energy would nor arise. In such circumstances, the writ petitioner had prayed for quashing the Provisional Assessment Order and for a direction to the TANGEDCO to transfer the Service Connection No.436 in his name.

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7.The writ Court found that the service connection in S.C.No.436 was given only for Survey No.3/1. The said service connection number has been 4/10

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purchased by one Shanthi (arrayed as 7^th respondent in the writ petition). The writ Court found that there is no illegality on the part of the TANGEDCO in ordering transfer of service connection in the name of Shanthi.

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8.The writ Court further found that there are two borewells, one in Survey No.3/1 and other in Survey No.4/2. The main switch board and starter is also located in Survey No.4/2. Therefore, the service connection had energised the borewell found in both the survey numbers. Since both the survey numbers were enjoyed by one person (Savariammal at one point of time) and thereafter the ownership fell into two separate hands, there is no dishonesty in utilising the service connection.

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9.On the above said findings, the writ Court proceeded to quash the Final Assessment Order issued by TANGEDCO for theft of energy.

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10.TANGEDCO has preferred this writ appeal challenging the quashing of the Final Assessment Order. However, the petitioner has not chosen to challenge the other part of the order wherein the transfer of service connection in the name of the Shanthi by TANGEDCO has been upheld.

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11.The learned Standing Counsel appearing for the appellants/TANGEDCO submitted that when the writ Court has arrived at a specific finding that the service connection has been effected only for Survey No.3/1, utilising the said service connection for another survey number namely Survey No.4/2, that too by way of direct hooking method would 5/10

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amount to theft of energy. When the theft of energy has been established by the authority, the writ Court was not right in setting aside the Final

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Assessment Order.

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12.The learned Counsel appearing for the appellants had further submitted that the said Savariammal ( grandmother of the writ petitioner) was the owner of Survey No.3/1, she was only a cultivating tenant for Survey No. 4/2. After her death, the property had devolved upon her granddaughter who had sold it in favour of one Shanthi. At no point of time, service connection was given for Survey No.4/2. There was no request for extending the service from Survey No.3/1 to 4/2. Therefore, the writ petitioner was drawing electricity for his borewell in Survey No.4/2 only by direct hooking method which is an offence under Electricity Act. Hence, he prayed for setting aside the order passed by the writ Court and to dismiss the writ petition.

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13.Per contra, the learned counsel appearing for the respondent/writ petitioner had submitted that the service connection in S.C.No.436 was originally granted only to Survey No.4/2 and at the request of Savariammal, it was extended to Survey No.3/1 which was owned by Savariammal. Therefore, the utilisation of electricity in Survey No.4/2 cannot amount to theft of energy. At one point of time, the said Savariammal was the cultivating tenant of Survey No.4/2 and she was the owner of Survey No.3/1. Both were in occupation of Savariammal and hence, the said possession continued. It 6/10

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was further contended that there is no reference about tapping of energy in the inspection report. Hence, the Final Assessment Order is liable to be set aside and he prayed for sustaining the order of the writ Court.

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14.We have considered the submissions made on either side and perused the material records.

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15.As per averments in the writ affidavit, the service connection in S.C.No.436 was given only to Survey No.4/2 and later, it was extended to Survey No.3/1 after obtaining permission from the authority. However, the said contention of the writ petitioner has been rejected by the writ Court by arriving at a finding that initially the service connection in S.C.No.436 has been given only to Survey No.3/1. In fact, the writ Court had even upheld the transfer of service connection in favour of the 7^th respondent in the writ petition for Survey No.3/1. Therefore, it is clear that the service connection was initially given only for Survey No.3/1 in the name of Savariammal.

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16.Though the writ petitioners have challenged the order of transfer of service connection dated 17.06.2014 and the Final Assessment Order dated 21.11.2016, the writ Court had quashed only the Final Assessment Order and not the name transfer order. The writ petitioner has accepted the order of writ 7/10

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Court with regard to the name transfer and has not chosen to file any writ appeal. Therefore, it is clear that the service connection in S.C.No.436 has been given only for Survey No.3/1 and not for Survey No.4/2.

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17.In the inspection report, it has been found that the petitioner has been drawing electricity for the borewell in Survey No.4/2 by direct hooking method. When there is no service connection at all for Survey No.4/2 and the adjacent Survey No.3/1 is owned by a different person, drawing of electricity for Survey No.4/2 by direct hooking method would clearly amount to theft of energy.

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18.The name transfer order in favour of Shanthi has been passed by the authority on 17.06.2014. The Inspection has been conducted two years thereafter namely on 04.07.2016. In such circumstances, the writ Court was not right in arriving at a finding that both the survey numbers were owned by Savariammal at one point of time and therefore, the question of dishonesty is totally absent.

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19.As far as the quantum of penalty is concerned, the writ petitioner has not offered his explanation to the Provisional Assessment Order or raised any objection for the same. In such circumstances, this Court does not find any reason to interfere in the liability or quantum in the Final Assessment Order.

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20.In view of the above said deliberations, the order of the writ Court

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is set aside and the writ appeal stands allowed. No costs. Consequently, connected miscellaneous petition is closed.

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(C.V.K.J.,) (R.V.J.,)