WP/32341/2003 of M/S.SRI KRISHNA ALLOYS REP BY Vs THE SUPERINTENDING ENGINEER on 31 December 2019

Relief

77744 IN THE HIGH COURT OF JUDICATURE AT MADRAS

Pronounced on : 31.12.2019

CORAM:

THE HON'BLE MR. JUSTICE R.SURESH KUMAR

and W.P.M.P.No.37262 of 2004W.P.M.P.No.39215 of 2003 and W.V.M.P.No.2314 of 2003

M/s. Sai Krishna AlloysP.B.No.750, 262/1B-3,Manjakkalpatty Village,Akkempet Post,Sankari - 637 301.Rep. by its Partner, N.Anbalagan ... Petitioner The Superintending Engineer (Metro)Tamil Nadu Electricity Board,Coimbatore Electricity Distribution Circle,Coimbatore.

Prayer: This Writ petition filed under Article 226 of theConstitution of India praying for issuance of a Writ ofCertiorari calling for the records of the respondent inLr.No.SE/CEDC/Metro/AEE.GI/F.DKT/D.230/2003, dated 28.10.2003and quash the same.

For Petitioner : Mr.N.L.Rajah, Senior counsel for Mr.C.S.Krishnamoorthy The prayer sought for in this writ petition is for a writ ofCertiorari, calling for the records of the respondent inLr.No.SE/CEDC/Metro/AEE.GI/F.DKT/D.230/2003, dated 28.10.2003and quash the same.

2. The petitioner, namely Sri Krishna Alloys, is an Industryinvolved in running Steel Re-Rolling / furnace unit in SankariTaluk, Salem District. For the said industry, a High TensionPower supply was given in HTSC No.110 by the respondent Board.The said supply was given in the year 1992. While so, in theyear 1997, all these kind of HT service connections wereprovided with electronic meters which replaced the thenexisting Electro mechanical meter, as that has become mandatoryfor all High Tension services.

3. This kind of electronic meters had the facilities torecord technical details of the industry like power factor,voltage, current pilferage if any, interruption of supply etc.,

4. The last such meter reading prior to the issue inquestion was taken at the said HT service connection on27.04.2003 and thereafter a surprise inspection seems to havebeen conducted on 06.05.2003 at the petitioner industry by therespondent Board officials and in both occasions, it seems that,there had been no adverse remarks against the petitionerindustry.

5. While that being so, on 15.05.2003, there has been asurprise check up with officials of the respondent Boardespecially belonging to anti power theft squad, Coimbatore andthey made a surprise inspection and allegedly found that, theelectronic meter got tampered, accordingly, after havingrecorded or downloaded the relevant particulars from theelectronic meter, the respondent Board officials found certainmaterials for theft of energy, accordingly, on the same day, anFIR was registered in FIR No.459 of 2003 before the concernedjurisdictional police station against the petitioner, i.e., oneAnbalagan, who is the partner of the petitioner industry and onePandian, another partner of the petitioner firm and oneThirunavukkarasu, electrician of the petitioner industry.

6. Pursuant to the said surprise inspection and registeringof the FIR, the respondent Board issued a show cause notice tothe petitioner industry on 27.05.2003 requiring the petitionerto attend the enquiry, which was fixed on 16.06.2003. On receiptof the show cause notice, the petitioner had requested tofurnish the copies of the mahazar, working sheet and otherrelevant records. However, according to the petitioners, thosedocuments were not furnished, still they fixed enquiry on26.06.2003. On 26.06.2003, the petitioner again made a requestto the respondent Board to furnish the relevant records such asbilling data, load survey data for the period from 06.11.2002 to15.05.2003 and also the tampered data etc. In this regard,except the mahazar copy, other records were not furnished andhowever the enquiry was fixed on 10.07.2003.

7. In that circumstances, according to the petitioner, sincethe relevant records were not furnished to the petitioners,without it the enquiry was fixed to be conducted, the petitionerfiled a writ petition in W.P.No.19582 of 2003 before this Court,seeking for direction against the respondent Board forfurnishing the relevant records and also to quash the impugnednotice fixing the enquiry on 10.07.2003.

8. Even prior to the filing of W.P.No.19582 of 2003, thewrit petitioner already approached this Court by filingW.P.No.15361 of 2001, where also a writ of mandamus was soughtfor directing the respondents, i.e., respondent Board to furnishMeter Reading Instrument (MRI) data downloaded in the computerof the vital agency / demand / tampering related information ofHT Electricity Service connection bearing No.137 belonging tothe petitioner.

9. In the said writ petition, this Court, by order, dated29.01.2003, directed the respondent to furnish a copy of theMeter Reading Instrument (MRI) within one month. However it isthe case of the petitioner at that time that, despite the timegiven by this Court, certain documents were not furnished bythe respondent. Therefore the second writ petition, i.e.,W.P.No.19582 of 2003 was filed. In the second writ petition,this Court by order, dated 13.08.2003 has passed the followingorder : "7. In the circumstances, after considering therespective contentions, the writ petition isdisposed of with the following directions :The respondents shall furnish the following : a) Billing data, tampering data except LoadSurvey data.b) Instantaneous Power factor.

c) Average power factor

d) K.V.A - demand

e) Cumulative M.D

f) Total no. of Hour of supply available can befurnished in the Billing data.g) Available Load Survey Data (xerox copy)h) The CMRI details taken on 06.05.2003 and15.05.2003 (xerox copy)8. The learned standing counsel represents thatthe respondents will readily furnish the aboveitems, namely a to h. Within 5 days from the dateof the respondents furnishing the above detailsor copies or extracts, the petitioner may submithis objections or explanation as the case may beand thereafter, the respondents may fix the datefor an enquiry and proceed with the assessment.9. The writ petition is ordered in the above terms. Consequently, W.P.M.P.No.24465 of 2003 isdismissed and W.V.M.P.No.1449 of 2003 is closed.The parties shall bear their respective costs."

10. It is the further case of the petitioner that, despitethe said orders passed by this Court in the two round oflitigations, still some of the documents have not beenfurnished, though majority of the documents have been furnished.In the meanwhile, on 10.10.2003, the respondent Board directedthe petitioner to appear for enquiry which was fixed on22.10.2003. In response to the said notice, the petitioner on15.10.2003 has sent a detailed reply, where also the petitionertook the stand that, still some of the documents which are verycrucial, according to the petitioner, had not been supplied tothe petitioner. Therefore without supplying those documents, theenquiry cannot be conducted, hence, the petitioner sought forsupplying of those documents.

11. In response to the said reply / request of thepetitioner, dated 15.10.2003, the respondent Board on 17.10.2003had stated that, what are all the documents directed to begiven, as directed by the Court, had been given to thepetitioner and therefore no more documents are available assought for by the petitioner to grant or supply and thereforethe respondent in the said communication, dated 17.10.2003directed the petitioner to attend the enquiry which was fixed on22.10.2003.

12. Still not satisfied with the said reply, the petitioneron 19.10.2003 has written a letter stating that, some of thedocuments which are very essential for facing the enquiry arestill not provided to the petitioner, therefore the followingrequest has been made by the petitioner : "8. Therefore I once against request you tofurnish a) All potential missing / power outagesb) Individual potential missing and duration,this will indicate occurrence and re-set ofabnormal conditions.c) Availability of power to the meter duringthe disputed period.d) Individual day load survey graph has notbeen furnished, only compressed graphs wasgiven. This will not helpful to study the halfhourly load pattern of the service.e) Current reversal phase wise.Load survey data as directed by the Hon'bleHigh Court in order, dated 13582/03 andadmission made by EE/Sankari/TNEB (item "g" inthe High Court order)

CMRI reading and details taken 6.5.03 and15.05.2003 (Item "h" in the High Court order)

9. After furnishing the above documents I willsubmit my reply. The High Court has directedto hold the enquiry after furnishing theabove documents and getting explanation orobjections to fix the enquiry. The HighCourt has not directed to "Complete theenquiry within a short period". On the otherhand without furnishing the above documentsthe enquiry cannot be fixed."

13. On receipt of the said request-cum-reply dated19.10.2003 of the petitioner, the respondent Board on 28.10.2003had sent a communication stating that, the records as directedby the High Court have been furnished already to the petitionerand therefore on the enquiry date which has been refixed on14.11.2003, it was directed the petitioner to attend, failingwhich the same would be conducted exparte and decision would bemade. Aggrieved over the said communication, dated 28.10.2003made by the respondent requiring the petitioner to attend theenquiry, which was fixed on 14.11.2003, the petitioner onceagain approached this Court by filing the present writ petitionwith the prayer to quash the said communication, dated28.10.2003.

14. This writ petition was filed on 11.11.2003 and on13.11.2003 in the miscellaneous petition in W.P.M.P.No.39215 of2003, this Court granted an interim order of stay. Subsequently,W.V.M.P.No.2314 of 2003 was filed by the respondent Board tovacate the interim stay and both petitions were heard by alearned Judge of this Court on 23.02.2004, where the learnedJudge passed the following order : "2. Mr.C.S.Krishnamurthi, learned counselappearing for the respondent (WVMP.No.2314 of2003) submits that he requested thepetitioner-Board to furnish the belowmentioned documents :(i) Load survey for the petitioner's serviceconnection(ii) CMRI Reading(iii) Tamper datafor the period from 06.11.2002 to 15.05.2003.ButMr.N.Srinivasan,learnedcounselappearing for the petitioner-Board submitsthat the above said documents are notavailable for the said period.3. Learned counsel appearing for therespondent submits that a technical expertmay be appointed, so that he can verify and

if the said documents are found, he canproduce the same with the permission of thepetitioner-Board, before this Court. Hefurther submits that for that purpose, oneMr.Ranganathan,RetiredSuperintendingEngineer, TNEB, No.156, 8th Street, 'F'Block, Anna Nagar East, Chennai-102 may beappointed.4. Learned counsel appearing for thepetitioner says that he has no objection toappoint Mr.Ranganathan for the said purpose.5.Hence,Mr.Ranganathan,RetiredSuperintending Engineer, TNEB, No.156, 8thStreet, 'F' Block, Anna Nagar East, Chennai-102 is appointed as Commissioner to verify asto whether the above said documents areavailable for the said period and if it isavailable, collect the details and submit areport within a period of four weeks fromtoday. Office is directed to postW.P.No.32341 of 2003 along with thesepetitions after four weeks.6. This order can be communicated to theCommissioner by the counsel for therespondent (WVMP No.2314 of 2003) and theexpenses of the Commissioner shall also beborn by the counsel for the respondent."

15. Pursuant to the said order passed by the learned Judgeas referred to above, the technical person, one Mr.Ranganathanwho was appointed as a Commissioner to file a report, had fileda report before this Court along with supporting affidavit inMarch 2004, where inter alia the Commissioner has stated thefollowing under the heading "Conclusion" :

"2. Before giving a report of possible theftin High Tension service in the MRT wing willprepare a report after inspection and afterstudy of down loaded meter particulars fromthe meters and if they are satisfied thatthere is a prima facie case then only reportabout theft has to given by MRT. But in thiscase meter was down loaded on 06.05.2003 andno such report was available in this records.Again there was inspection on 15.05.2003 themeter was down loaded, but without studyingthe tamper data, load survey data, ExecutiveEngineer (MRT) has given a report that "it ispossible to steal the energy with theexisting arrangement". Even after studyingdown load parameters on 16.05.2003 the Executive Engineer (Meter Relay Test) has notstated anything about the method of theft.With regard to the meters & meteringarrangement only the Meter Relay Test wingare only competent to give a report orcomplaint about the nature of theft and theyare play a vital role in detecting the theft,since the theft of energy means not recordingthe actual consumption. There is no suchreport or complaint by the Meter Relay Testwing in this case.3. In this service last monthly reading wastaken 27.04.2003 and bill was given and thesame was paid well before 06.05.2003. Therewas inspection on 06.05.2003 and meter wasdown loaded and load survey data, tamper datawere taken and they have not found anyabnormality in the service and reported tothe other Higher officials.4. In this service no records for load surveydata and tamper data for the period06.11.2002 to 21.03.2003 are available. Inthe absence of any records it is not possibleto come to the conclusion about theft in thisservice, especially after fixation ofElectronic Meters and after fixation ofElectronic Meter Theft of Energy can beproved scientifically.I am herewith submitting the following copiesgiven by the respondent, which has not beenfurnished to the consumer.1. Billing Data taken on 06.05.2003 &15.05.2003.2. Load Survey Data, i.e., daily load graphtaken on 06.05.2003 & 15.05.2003.3. Tamper data taken on 06.05.2003 &15.05.2003.

(A.RANGANATHAN)"

(A.RANGANATHAN)"

16. Thereafter this writ petition has not been decided andit has been kept pending for all these period. In the meanwhile,on behalf of the petitioner, an additional affidavit was filedon 02.10.2017, where the petitioner sought for moulding therelief in the writ petition to the extent that, the proceedingsinitiated by the respondent Electricity Board, under theprovisions of the terms and conditions of the supply framedunder Section 49 of the Electricity (Supply) Act, 1948, cannotbe continued and that, the proceedings can only be had beforethe Special Court constituted under the Notification, dated 05.10.2006. The said Special Court was constituted under Section153 of the Electricity Act, 2003 by issuing the followingNotification :"Notification issued under G.O.Ms.No.102,Energy (B.1) Department, dated 05.10.2006.G.O.Ms.No.126, Energy (B1) Department, dated14.12.2007 andG.O.Ms.No.47, Energy (B1), 17th May 2010The Government of Tamil Nadu with theconcurrence of the High Court, Chennai,herein constitutes the Court of Sessionsspecified in column (3) of the Table below tobe the special court for the purposes ofproviding speedy trial of offences underSections 135 to 139 of the said Act withinthe jurisdiction comprising of the SessionsDivision, specified in column (4) in respectof the districts specified in column (2)thereof."

17. In the present case, the jurisdiction shall be beforethe concerned Principal District and Sessions Judge, Salem, whoshall determine the civil liability also, if any in terms ofmoney, i.e., alleged loss or damage said to have been sustainedby the Board on account of the alleged offence of theft ofenergy. Since this prayer to mould the relief was sought for bythe petitioner, during the final hearing of this writ petition,detailed arguments were advanced by the learned Senior counselappearing for the petitioner as well as the learned AdditionalAdvocate General appearing for the respondent Board on the issueas to whether the civil liability, if any, arises on the part ofthe writ petitioner, has to be decided by the authorityconcerned under the Electricity Act, 1910 or by the SpecialCourt constituted in this regard under the New Act, namelyElectricity Act, 2003.

18. The said issue has arisen, in other words that hasbecome necessitated to be adjudicated before this Court, becauseof the change in the legislation in the meanwhile.19. In this context, it is to be noted that, the ElectricityAct 2003 came into force from 10.06.2003, which repealed thethen existing Electricity Laws, namely Electricity Act, 1910,Electricity (Supply) Act, 1948 and also the ElectricityRegulatory Commissions Act, 1998.

20. The Electricity Act 2003, herein after would be calledas 2003 Act and the Electricity Act, 1910 be called as 1910 Act.

21. In this context, it is the submission made byMr.N.L.Rajah, learned Senior counsel appearing for the writpetitioner that, under Section 185 of the 2003 Act, the 1910 Act

as well as the Electricity (Supply) Act and ElectricityRegulatory Commissions Act, 1998 were repealed. In view of therepeal, since the new Act 2003 came into effect from 10.06.2003,the criminal case which was pending before the concernedMagistrate Court has already been stand transferred to theSpecial Court, in view of the constitution of the Special Courtunder section 153 of the 2003 Act. Under Section 154(5) of the2003 Act, it empowers the Special Court to determine the civilliability also against a consumer or a person in terms of moneyfor theft of energy. Therefore the learned Senior counsel wouldcontend that, in view of such repeal and the constitution of theSpecial Courts under the 2003 Act, where, in view of thespecific provision, i.e., Section 154(5) of the 2003 Act, notonly the criminal liability but also the civil liability of aconsumer has to be decided only by the Special Court and not byany forum or authority or Court. Therefore if at all any civilliability on the part of the consumer, that is the writpetitioner herein, is to be decided or determined, the sameshall be decided only by the Special Court constituted in thisregard, to which the criminal case already been transferred byconcerned Magistrate Court, where it was originally pending andtherefore the respondent, who is the authority originally toconduct the enquiry against the petitioner to determine thecivil liability, if any, has become functus officio or theirpower is denuded and therefore if at all this Court decidesthat, the enquiry to be conducted on the alleged theft of energypursuant to the surprise inspection conducted by the respondent,dated 15.05.2003, the same shall be decided only by the SpecialCourt and not by the respondent or any other authority under theold Act and therefore in this context, the learned Seniorcounsel would submit that, the moulded relief as has been soughtfor now by the petitioner may be considered by this Court.

22. The learned Senior counsel, in support of his case hasrelied upon the following Judgments :

1. Gujarat Urja Vikash Nigam Ltd., v. Essar Power Ltd., 2008(4) CTC 539

2. A.R.Metallurgicals Private Limited v. The Chairman, TamilNadu Electricity Board and others, 2016 Writ L.R. 850

3. The Chairman, Tamil Nadu Electricity Board and others v.A.R.Metallurgicals Private Limited, 2016 Writ L.R. 851

4. M.Indra v. The Director, Institute of Mental Health,Kilpauk, Chennai, 2016 Writ L.R. 852

5. Delhi High Court Judgment in the matter ofB.S.E.S.Rajdhani Power Ltd., v. P.P.Singh & Anr, dated 10.12.2014

23. Per contra, Mr.C.Manishankar, learned AdditionalAdvocate General made submissions opposing the stand taken bythe petitioner's side and would state that, even though the 2003Act came into effect from 10.06.2003 and by virtue of that, the

1910 Act was repealed, not withstanding the said repeal, theissue raised in this writ petition, i.e., the adjudication ofcivil liability of the writ petitioner / consumer, can very wellbe decided by the authority under the 1910 Act. In support ofthis contention, the learned Additional Advocate General furthersubmitted that, the occurrence was taken place on 15.05.2003when the respondent Board inspected the service connection /premises of the petitioner, where they found that, theelectronic meter got tampered, thereby there had been a strongcase on the part of the respondent Board that, there could havebeen theft of energy by the petitioner side and therefore, onthat date, the criminal law was set in motion by filing an FIR,therefore what has been taken place in May 2003 cannot bebrought forward to be decided under the 2003 Act, whichadmittedly came into effect only from June 2003.

24. The learned Additional Advocate General would alsosubmit that, the Special Court was constituted as contemplatedunder Section 153 of the 2003 Act only from 2006 and thereforeat the time of either occurrence, i.e., on 15.05.2003 and evensubsequently when investigation went on by the concernedInvestigating Agency on the criminal liability of thepetitioner, either the 2003 Act did not come into force or theSpecial Court was not constituted.

25. Merely because the Special Court was constitutedsometime in 2006 and because of litigation after litigation, theissue has been kept pending without making any progress toadjudicate the issue to fix the civil liability on thepetitioner by the respondent Board or its authority, thepetitioner cannot take advantage of the situation and make aplea that, as of now since the Special Court was constituted,the issue has to be referred to the Special Court to decide thecivil liability as well as the criminal liability of thepetitioner within the meaning of Section 154 of the 2003 Act.

26. The issue raised in this writ petition, as of now, asper the request made by the petitioner to give the mouldedrelief as to whether the civil liability on the petitioner is tobe determined by the Special Court constituted under Section 153of the 2003 Act or by the authority under the 1910 Act, can beno longer res integra in view of the number of decisions alreadybeen made by this Court as well as the Hon'ble Apex Court inthis regard.

27. In support of the aforesaid submissions and the standtaken by the respondent Board, the learned Additional AdvocateGeneral has relied upon the following decisions : 1. N.S.Nayak & Sons v. State of Goa, (2003) 6 SCC 562. Gammon India Ltd., v. Special Chief Secretary, (2006) 3SCC 354

3. Executive Engineer (Distribution), T.N.E.B. v. S.J.Gayas,(2008) 2 MLJ 8124. H.P.State Electricity Regulatory Commission v. H.P.SEB,(2014) 5 SCC 2195. K.M.Pareeth v. Kerala State Electricity Board & Ors. 2014SCC Online Ker 28376

6. D.D.Dhorrairaaj v. State, 2017 (4) CTC 846

28. I have given my anxious consideration to the rivalsubmission made by the learned respective counsel for theparties as well as the materials placed before this Court forperusal.

29. In so far as the original issue raised in this writpetition that, the impugned order, dated 28.10.2003 whether tobe sustained or not is concerned, the said impugned order wasquestioned in this writ petition on the ground that, despite thedirection given by this Court to supply the materials relevantto the issue to the petitioner before commencing the enquiry,according to the petitioner, some of the documents yet to besupplied by the respondent Board and on that ground, the enquiryproposed as per the impugned order, dated 28.10.2003 cannot bepermitted to go on and therefore on that ground, the petitionerwanted to quash the said impugned proceedings.

30. To decide the said issue, first let me dwell into thevarious proceedings and the Court orders pertaining to the issuetill the filing of the present writ petition.

31. On 15.05.2003, surprise inspection was conducted by therespondent Board at the High Tension service connection of thepetitioner industry and according to the respondent, they foundsome sabotage or tampering of the electronic meter, therebythere had been chance of theft of energy and accordingly,complaint was given to the concerned police, who registered theFIR against the petitioner, i.e., the partners of the petitioneras well as the electrician attached to the petitioner industry.Subsequently, at least three round of litigations went on, asthe petitioner had filed writ petition in W.P.No.15361 of 2001,where a direction was given on 29.01.2003 by a learned Judge ofthis Court, directing the respondent Board to furnish the MeterReading Instrument (MRI) within a period of one month. In thiscontext, the document sought for by the petitioner, though wasdirected by the Court, was not furnished to them, theyapproached this Court second time by filing W.P.No.19582 of2003, where this Court, by order, dated 13.08.2003 had given aset of directions, which has already been extracted hereinabove.

32. In the meanwhile, the petitioner also approached thisCourt by filing W.P.No.24848 of 2003 seeking a prayer to change

the enquiry officer or adjudicating authority and that wasdirected by this Court by giving a direction to the respondentBoard to consider the request of the petitioner for change ofthe authority / enquiry officer.

33. A learned Judge of this Court in W.P.No.24848 of 2003filed by the petitioner in this regard, had by his order, dated05.09.2003 directed the respondent Board to consider the requestof the petitioner for change of the enquiry officer / authorityand it seems that, pursuant to the said order, the request ofthe petitioner also was accepted and the adjudicating authorityoriginally was fixed has got changed to the present one.

34. Therefore these three writ petitions had already beenfiled by the petitioner for various relief, where theaforementioned or extracted orders have been passed by thisCourt.

35. Ultimately it is the case of the petitioner that,despite these directions had been given in separate writpetitions filed by the petitioners as referred to above, stillfull compliance had not been made by the respondent as fulldocuments as sought for by the petitioner had not been furnished.

36. Therefore the enquiry notice given by the respondent,dated 10.10.2003 was responded by the petitioner on 15.10.2003and that was also further responded by the respondent on17.10.2003. Once again the stand was reiterated by thepetitioner on 19.10.2003, where four or five documents mentionedin para 8 of the said letter, dated 19.10.2003, which hasalready been extracted herein above, were again sought for.

37. However the respondent by the impugned communication,dated 28.10.2003 has stated that, all those documents which areall available with the respondent had been served and theremaining documents sought for by the petitioner or stillinsisting by the petitioner, were not available with therespondent, therefore that could not be supplied andaccordingly, they fixed the enquiry date on 14.11.2003. The saidorder was challenged in this writ petition, where an interimorder of stay was granted by this Court and the same is stillpending.

38. In so far as the non-supply of those documents areconcerned, the writ court by order, dated 23.02.2004 appointed atechnical man as Commissioner to file a report. Pursuant towhich the Commissioner also had filed a report in March 2004 andthe relevant portion of the technical man / Commissioner hadalready been extracted herein above.

39. After perusal of these documents, this Court is of theview that, majority of the documents as has been sought for bythe petitioner and directed to be given by the orders of thisCourt had already been furnished to the petitioner.

40. If at all still more some documents are yet to befurnished is concerned, the report of the Technical manappointed by this Court has made it clear that, some of thedocuments / datas were not available with the respondent and inthis context, para 2 to 4 of the report, which has already beenextracted herein above, would speak for itself.

41. Therefore if at all any documents which were wanted bythe petitioner or directed by this Court, had not been furnishedto the petitioner, certainly those documents either may not beavailable with the respondent or those documents assuming if itis available, if had not been furnished to the petitioner, thosedocuments cannot at any point of time be relied upon by therespondent during the adjudication process.

42. If at all any of the document sought for by thepetitioner which has not been furnished to the petitioner on theground that it is not available, the respondent is precludedfrom relying upon those documents at the time of enquiry /adjudication. Moreover by virtue of the non-filing or non-furnishing of those documents since the respondent looses itschance of relying upon those documents against the petitioner,certainly the petitioner can take advantage of the situationduring the enquiry and therefore in this context, this Court isof the considered view that, no more direction is required to beissued by this Court to the respondent to furnish any other leftout documents, except to observe that, what are all thedocuments so far have been supplied or furnished to thepetitioner by the respondent, that alone shall be relied upon bythe respondent during the enquiry and not beyond that.

43. Therefore on these grounds as has been urged by thepetitioner originally in this writ petition, the impugnedproceedings, dated 28.10.2003 cannot be assailed successfully bythe petitioner.

44. But at the same time, since the enquiry date, i.e.,14.11.2003 has already been gone by, a fresh enquiry date has tobe given by the respondent to enquire into the matter to fix thecivil liability on the part of the petitioner.

45. However only at this juncture now the fresh issue or amain issue has been raised, which is purely a legal issue, bythe petitioner as to whether the adjudication / enquiry shouldbe made by the erstwhile authority under the 1910 Act or theSpecial Court constituted under Section 153 of the 2003 Act.

Therefore this issue has to be necessarily decided so as toenable the parties to adjudicate upon the issue before theconcerned forum either before the authority under the 1910 Actor before the Special Court under the 2003 Act. Therefore thisCourt wants to dwell into these aspects and for the saidpurpose, Judgments referred to or relied upon by both thelearned counsel appearing for the parties have been gone intoand it can be pressed into service.

46. Before such exercise of ascertaining the legal issue,the relevant provisions of the Act, i.e., 2003 Act can be lookedinto.

47. Sections 153, 154 and 185 of the 2003 Act are therelevant provisions which are extracted hereunder :Section 153. (Constitution of SpecialCourts): --- (1) The State Government may,for the purposes of providing speedy trial ofoffences referred to in 1[sections 135 to 140and section 150], by notification in theOfficial Gazette, constitute as many SpecialCourts as may be necessary for such area orareas, as may be specified in thenotification. (2) A Special Court shall consist of a singleJudge who shall be appointed by the StateGovernment with the concurrence of the HighCourt. (3) A person shall not be qualified forappointment as a Judge of a Special Courtunless he was, immediately before suchappointment, an Additional District andSessions Judge. (4) Where the office of the Judge of aSpecial Court is vacant, or such Judge isabsent from the ordinary place of sitting ofsuch Special Court, or he is incapacitated byillness or otherwise for the performance ofhis duties, any urgent business in theSpecial Court shall be disposed of – (a) by a Judge, if any, exercisingjurisdiction in the Special Court; (b) where there is no such other Judgeavailable, in accordance with the directionof District and Sessions Judge havingjurisdiction over the ordinary place ofsitting of Special Court, as notified undersub- section (1). State Amendment - [Maharashtra] - In this application to the State of Maharashtra, inS.153, after sub-S. (4), add the followingsub-section, namely ; -

"(5) Where no Special Court for any area orareas has been constituted under sub-section(1), one or more Additional District andSessions Judges, as may be designated by theHigh Court, for such area or areas, from timeto time, shall exercise the powers of theSpecial Court under this Act and any Judge sodesignated shall be deemed to be a SpecialCourt for the purpose of this Act" -Maharashtra Act 36 of 2005, S.3 (w.e.f. 23-6-2005).Section 154. (Procedure and power of SpecialCourt): --- (1) Notwithstanding anythingcontained in the Code of Criminal Procedure,1973, every offence punishable under[2sections 135 to 140 and section 150] shallbe triable only by the Special Court withinwhose jurisdiction such offence has beencommitted. (2) Where it appears to any court in thecourse of any inquiry or trial that anoffence punishable under sections 135 to 139in respect of any offence that the case isone which is triable by a Special Courtconstituted under this Act for the area inwhich such case has arisen, it shall transfersuch case to such Special Court, andthereupon such case shall be tried anddisposed of by such Special Court inaccordance with the provisions of this Act :Provided that it shall be lawful for suchSpecial Court to act on the evidence, if any,recorded by any court in the case of presenceof the accused before the transfer of thecase to any Special Court : Provided further that if such Special Courtis of opinion that further examination,cross-examination and re-examination of anyof the witnesses whose evidence has alreadybeen recorded, is required in the interest ofjustice, it may re-summon any such witnessand after such further examination, cross-examination or re-examination, if any, as itmay permit, the witness shall be discharged. (3) The Special Court may, notwithstandinganything contained in subsection (1) ofsection 260 or section 262 of the Code of Criminal Procedure, 1973, try the offencereferred to in sections 135 to 140 andsection 150 in a summary way in accordancewith the procedure prescribed in the saidCode and the provisions of sections 263 to265 of the said Code shall, so far as may be,apply to such trial :

Provided that where in the course of asummary trial under this subsection, itappears to the Special Court that the natureof the case is such that it is undesirable totry such case in summary way, the SpecialCourt shall recall any witness who may havebeen examined and proceed to re-hear the casein the manner provided by the provisions ofthe said Code for the trial of such offence: Provided further that in the case of anyconviction in a summary trial under thissection, it shall be lawful for a SpecialCourt to pass a sentence of imprisonment fora term not exceeding five years. (4) A Special Court may, with a view toobtaining the evidence of any person supposedto have been directly or indirectly concernedin or privy to, any offence tender pardon tosuch person on condition of his making a fulland true disclosure of the circumstanceswithin his knowledge relating to the offenceand to every other person concerned whetheras principal or abettor in the commissionthereof, and any pardon so tendered shall,for the purposes of section 308 of the Codeof Criminal Procedure,1973, be deemed to havebeen tendered under section 307 thereof.

(5) The [Special Court shall] determine thecivil liability against a consumer or aperson in terms of money for theft of energywhich shall not be less than an amountequivalent to two times of the tariff rateapplicable for a period of twelve monthspreceding the date of detection of theft ofenergy or the exact period of theft ifdetermined whichever is less and the amountof civil liability so determined shall berecovered as if it were a decree of civilcourt. (6) In case the civil liability so determinedfinally by the Special Court is less than theamount deposited by the consumer or theperson, the excess amount so deposited by the consumer or the person, to the Board orlicensee or the concerned person, as the casemay be, shall be refunded by the Board orlicensee or the concerned person, as the casemay be, within a fortnight from the date ofcommunication of the order of the SpecialCourt together with interest at theprevailing Reserve Bank of India primelending rate for the period from the date ofsuch deposit till the date of payment. Explanation. - For the purposes of thissection, “civil liability” means loss ordamage incurred by the Board or licensee orthe concerned person, as the case may be, dueto the commission of an offence referred toin sections 135 to 140 and section 150. Section 185. (Repeal and saving): --- (1) Save as otherwise provided in this Act,the Indian Electricity Act, 1910, theElectricity (Supply) Act, 1948 and theElectricity Regulatory Commissions Act, 1998are hereby repealed. (2) Notwithstanding such repeal, (a) anything done or any action taken orpurported to have been done or takenincluding any rule, notification, inspection,order or notice made or issued or anyappointment, confirmation or declaration madeor any licence, permission, authorisation orexemption granted or any document orinstrument executed or any direction givenunder the repealed laws shall, in so far asit is not inconsistent with the provisions ofthis Act, be deemed to have been done ortaken under the corresponding provisions ofthis Act.

(b) the provisions contained in sections12 to 18 of the Indian Electricity Act, 1910and rules made thereunder shall have effectuntil the rules under section 67 to 69 ofthis Act are made;(c) the Indian Electricity Rules, 1956made under section 37 of the IndianElectricity Act, 1910 as it stood before suchrepeal shall continue to be in force till theregulations under section 53 of this Act aremade.

(d) all rules made under sub-section (1)of section 69 of the Electricity (Supply)Act, 1948 shall continue to have effect until

such rules are rescinded or modified, as thecase may be; (e) all directives issued, before thecommencement of this Act, by a StateGovernment under the enactments specified inthe Schedule shall continue to apply for theperiod for which such directions were issuedby the State Government.

(3) The provisions of the enactmentsspecified in the Schedule, not inconsistentwith the provisions of this Act, shall applyto the States in which such enactments areapplicable.

(4) The Central Government may, as and whenconsidered necessary, by notification, amendthe Schedule.

(5) Save as otherwise provided in sub-section(2), the mention of particular matters inthat section, shall not be held to prejudiceor affect the general application of section6 of the General Clauses Act, 1897, withregard to the effect of repeals."

48. Under the 2003 Act, in Section 185 under the heading"Repeal and Saving", Indian Electricity Act (1910 Act) as wellas the Electricity (Supply) Act 1948 and the ElectricityRegulatory Commissions Act, 1998 were repealed. Under the savingclause under Section 185(2)(a), it makes clear that, notwithstanding such repeal anything done or any action taken orpurported to have been taken in so far as it is not inconsistentwith the provisions of this Act be deemed to have been done ortaken under the corresponding provisions of this Act.

49. It means not withstanding the repeal, anything hasalready been done or any action taken, that shall be deemed tohave been done under the 2003 Act, provided it should not beinconsistent with the provisions of the 2003 Act

50. In this context, it is the vehement contention of thelearned Additional Advocate General that, the surpriseinspection was conducted on 15.05.2003, on that date, on primafacie case, under which the respondent found some materials toconclude that, there has been a chance of theft of energy,criminal law was set in motion as FIR was filed on the same daybefore the concerned police station.

51. It is the further case of the respondent as projected bythe learned Additional Advocate General that, immediately showcause notice was issued calling explanation from the petitionerand for conducting an enquiry to fix the civil liability on the

part of the petitioner in lieu of the loss sustained by therespondent due to the alleged theft of energy.

52. This occurrences had been taken place in the month ofMay 2003, where the 2003 Act has not come into force, asadmittedly the 2003 Act came into force only from 02.06.2003.Pursuant to the FIR registered, the issue had been pendingbefore the Magistrate Court concerned under the 1910 Act to takethe trial to fix the criminal liability on the petitioner.

53. In so far as the civil liability is concerned, thoughvarious attempts had been made by the respondents to conduct theenquiry against the petitioner, each and every time litigationswere generated as at least 3 writ petitions had been filed bythe petitioner at various point of time and ultimately theimpugned communication to fix the enquiry on 14.11.2003 wasissued by the respondent on 28.10.2003. Even the saidcommunication has been challenged in the present writ petition,as the said writ petition was filed on 11.11.2003, where interimorder of stay was granted on 13.11.2003, subsequently thoughvacate stay petition was filed, this Court, by order dated23.02.2004, appointed a technical person as Commissioner, whowas directed to file a report, who also in pursuant of the saidorder, filed a report in March 2004, which is form part of therecord of this case. Thereafter the issue had been pending forall these years.

54. All these developments have been taken place andthereafter only, in 2006, i.e., from 10.06.2006, the SpecialCourt was constituted by the appropriate Government underSection 153 of the 2003 Act. Pursuant to the constitution of theSpecial Court in all the Revenue Districts, the PrincipalDistrict and Sessions Judge / Court has been designated asSpecial Court under Section 153 of the 2003 Act.

55. In this context, it is to be noted that, under Section154(5), the Special Court may determine the civil liabilityagainst the consumer or a person in terms of money for theft ofenergy, have been provided. Therefore originally Section 154(5)was given the liberty to the State Government to constitute theSpecial Court and once the Special Court is constituted, thecivil liability also can be decided by the Special Court becausethe language employed in sub-section (5) in the opening lineoriginally as it stood was as follows "The Special Court maydetermine the civil liability against a consumer". However thesaid word "Special Court may", has been amended by theElectricity Amendment Act, 2007 (Act 26 of 2007) with thefollowing words "The Special Court shall" w.e.f 15.06.2007.Therefore between 2006 and 15.06.2007, Section 154(5) reads as"the Special Court may determine the civil liability against a consumer". The legislature thereafter thought it fit to make anamendment to make it mandatory that, the civil liability alsoshall be decided by the Special Court, accordingly, theamendment taken place and the word "may" was replaced by theword "shall".

56. It is also a settled proposition in this regard that,the word "may", can presume shall, however the legislaturethought it fit to give a meaning that, the word may in sub-section 5 originally employed before amendment has to beconstrued only as "may", and not "shall", that is the reason whythe amendment was necessitated and the word "shall" replaced theearlier word "may", therefore the legislature thought it fit tomake it as a mandatory one to decide the civil liability bythe Special Court constituted under Section 153 andaccordingly, the word "shall" was inserted only w.e.f.15.06.2007.

57. In this context, some of the Judgments referred to byboth sides can be looked into.

58. The learned Senior counsel for the petitioner reliedupon a Judgment of the Hon'ble Apex Court in the matter ofGujarat Urja Nigam Ltd., v. Essar Power Ltd., reported in 2008(4) CTC 539, where he relied upon the following passages : "25. In our opinion, the submission ofMr.K.K.Venugopal has to be accepted.

26. It may be noted that Section 86(1)(f) ofthe Act of 2003 is a special provision foradjudication of disputes between the licenseeand the generating companies. Such disputescan be adjudicated upon either by the StateCommission or the person or persons to whomit is referred for arbitration. In ouropinion the word 'and' in Section 86(1) (f)between the words 'generating companies' and'to refer any dispute for arbitration' means'or'. It is well settled that sometimes 'and'can mean 'or' and sometimes 'or' can mean'and' (vide G.P.Singh's 'Principle ofStatutory Interpretation' 9th Edition, 2004page 404).27. In our opinion in Section 86(1)(f) of theElectricity Act, 2003 the word 'and' betweenthe words 'generating Companies' and thewords 'refer any dispute' means 'or',otherwise it will lead to an anomaloussituation because obviously the StateCommission cannot both decide a disputeitself and also refer it to some Arbitrator.

Hence the word 'and' in Section 86(1)(f)means 'or'.

Hence the word 'and' in Section 86(1)(f)means 'or'.

28. Section 86(1)(f) is a special provisionand hence will override the general provisionin Section 11 of the Arbitration andConciliation Act, 1996 for arbitration ofdisputes between the licensee and generatingCompanies. It is well settled that thespecial law overrides the general law. Hence,in our opinion, Section 11 of the Arbitrationand Conciliation Act, 1996 has notapplication to the question who canadjudicate / arbitrate disputes betweenlicensees and generating Companies, and onlySection 86(1)(f) shall apply in such asituation.29. This is also evident from Section 158 ofthe Electricity Act, 2003 which has beenquoted above. We may clarify that theagreement dated 30.05.1996 is not a part ofthe license of the licensee. An agreement issomething prior to the issuance of a licence.Hence any provision for arbitration in theagreement cannot be deemed to be a provisionfor arbitration in the licence. Hence also itis the State Commission which alone has powerto arbitrate / adjudicate the dispute eitheritself or by appointing an Arbitrator....

34. It is well settled that where a statuteprovides for a thing to be done in aparticular manner, then it has to be done inthat manner, and in no other manner, videChandra Kishore Jha v. Mahavir Prasad, AIR1999 SC 3558 (para 12), Dhananjaya Reddy v.State of Karnataka, AIR 2001 SC 1512 (para22), etc. Section 86(1)(f) provides a specialmanner of making references to an arbitratorin disputes between a licensee and agenerating company. Hence by implication allother methods are barred."

59. In an unreported Judgment, in B.S.E.S.Rajdhani PowerLtd., v. P.P.Singh & Anr, the Delhi High Court has held asfollows : "154. Procedure and power of Special Court.--.....

(5) The Special Court shall determine thecivil liability against a consumer or a person in terms of money for theft of energywhich shall not be less than an amountequivalent to two times of the tariff rateapplicable for a period of twelve monthspreceding the date of detection of theft ofenergy or the exact period of theft ifdetermined whichever is less and the amountof civil liability so determined shall berecovered as if it were a decree of civilcourt.

......

Explanation.--For the purposes of thissection, "civil liability" means loss ordamage incurred by the Board of licensee orthe concerned person, as the case may be, dueto the commission of an offence referred toin sections 135 to 140 and section 150."

17. The Explanation in Section 154 providesthe link between the exercise of the twojurisdictions of the Special Court, i.e., thecriminal jurisdiction and the civiljurisdiction. The definition of "civilliability" in terms of Explanation isexclusive. It "means" loss or damage that isincurred "due to commission of an offence."The word "due to" necessarily requires theSpecial Court to first determine the criminalliability arising out of the commission of anoffence punishable under Sections 135 to 140and Section 150 of the Act.

18. If, in a given case, at the end of atrial, the Special Court comes to theconclusion that no offence is made outagainst the Respondents before it, thequestion of the Special Court thereafterdetermining the civil liability cannot arise.There is only one trial for determining boththe criminal liability as well as the civilliability. It is on the same evidence thatboth liabilities have to be determined. Infact, it was fairly stated by Mr.Fernandesthat the understanding of the provision byBRPL was such that in the event of a full-fledged trial resulting in acquittal of anaccused, the question of requiring theSpecial Court to determine the civil

liability does not arise. Indeed, in suchcases, where the acquittal orders haveattained finality, BRPL had promptly obeyedthe consequential orders requiring it torefund the amounts that may have beendeposited when the proceedings were pending.

...

25. In view of the Explanation to Section 154the submission of Mr. Fernandes that Section154(5) is a stand-alone provision shouldfail. In other words, it is not possible toaccept the submission that a Special Courtcan determine the civil liability "against aconsumer or a person in terms of money fortheft of energy" irrespective of there beinga deemed acquittal of such consumer as aresult of the compounding of the offenceunder Section 152 (3) of the Act. TheExplanation is clear that determination ofthe civil liability has to necessarily bepreceded by a positive determination of "thecommission of the offence". In terms of theExplanation, the quantum of the civilliability has necessarily to be "loss ordamage incurred...... due to the commissionof an offence......" If, in fact, there is nodetermination of commission of an offence, itis not possible for the Special Court toproceed to determine the civil liability. Inother words, a collective reading of Section152, Section 154(5) and the Explanation toSection 154 reveals that the legislature didnot intend that a different set ofconsequences should follow where acquittalwas not at the end of a full-fledged criminaltrial but on account of a "deemed acquittal"as a result of the compounding of the offenceunder Section 152 of the Act.

26. The view expressed by the Special Courtthat since it is a criminal court, it cannotdetermine the civil liability, is incorrectin view of the scheme of Section 154 of theAct. However, the conclusion in the impugnedorder of the Special Court that there cannotbe any determination of the civil liabilityin the face of an acquittal as a result ofcompounding of the offence under Section 152

of the Act cannot be faulted. It is clarifiedthat the orders passed by DC under Section152 which have already attained finality willnot be affected by the present order."

60. That apart, the learned Senior counsel for thepetitioner has relied upon some of the orders made in CriminalOriginal Petitions, where the criminal trial pendingbefore the concerned Magistrate court, in so far as the case oftheft of energy under the 1910 Act stands transferred to theconcerned Special Court in view of the constitution of theSpecial Court under Section 153 of the 2003 Act.

61. The learned Senior counsel would also rely upon theorder passed by a learned Judge of this Court inCrl.O.P.No.10427 of 2005 and Crl.O.P.No.29370 of 2004, to submitthat, two out of three accused shown in the FIR against whom thecharges had been quashed by this Court in the said two ordersand now the charge is pending only against the said Anbalaganwho represent the present writ petition.

62. It was also pointed out by the learned Senior counselfor the petitioner that, as against those two orders made inCrl.O.Ps referred to above quashing the charge against the twoout of three accused, the respondent Electricity Board preferredSLPs before the Supreme Court of India, where initially thoughnotice was issued and subsequently those SLPs were dismissed,thereby the orders passed by this Court in the said Crl.Opsquashing the charge made against two out of three accused, havebeen confirmed.

63. However, Mr.C.Manishankar, learned Additional AdvocateGeneral appearing for the respondent Electricity Board hasrelied upon the following passage of the Judgment in ExecutiveEngineer (Distribution), T.N.E.B v. S.J.Gayas reported in (2008)2 MLJ 812.

"25. As has already been adverted to supra,serious allegations of theft of energy worthlakhs of rupees is made against the consumersin the cases on hand and only at theirinstance the proceedings were either stalledor dragged on till the new Act came intoforce. When, as per the directions of thelegal fora, fresh assessment orders wereissued following the procedure prevalent ason the date of detection of the allegedtheft, the consumers have initiated theseproceedings to further drag on the matters,with the sole aim of avoiding or delaying the amounts assessed. It is also to be pointedout that by the new amendment Act of the year2007, the tariff rates prevalent in the oldAct are restored. Since the commission ofoffence, its detection and the commencementof the necessary proceedings all took placebefore the coming into force of 2003 Act, theconsumers cannot claim any benefits duringthe interregnum period of 2003 Act and the2007 Act. Therefore, the other argumentadvanced on the part of the consumers thatonly the Special Court is entitled todetermine the civil liability against theconsumer, as per Section 153(5) of theElectricity Act 2003 and hence, theassessment orders issued by the electricityDepartment shall be quashed on that groundalso, does not arise for consideration in thecases on hand, in view of our specificfinding that for the cases in hand, only theprovisions of the old Act are applicable."

64. The learned Senior counsel for the petitioner alsorelied upon the following Judgment of the learned single Judgeof this Court in A.R.Metallurgicals Private Limited v. TheChairman, Tamil Nadu Electricity Board and others, reported in2016 WLR 850, wherein it has been held as follows : "2. Now the learned Senior Counsel appearingfor the petitioner would submit that in viewof Sections 153 and 154 of the IndianElectricity Act of 2003 (hereinafter referredto as ‘the Act’), the remedy for thepetitioner is to file an appropriate appealbefore the Special Court constituted underthe Act. According to the learned SeniorCounsel, the Writ Petition may be disposed ofwith liberty to the petitioner to prefer anappeal.

3. A perusal of Section 185 of the Act wouldgo to show that any order passed under theIndian Electricity Act of 1910 would beconstrued to be an order made under thecorresponding provision of the present Act.In view of the said provision, the orderimpugned in this Writ Petition should beconsidered to have been passed under the Actof 2003 and therefore, an appeal should liebefore the Special Court. That is the viewtaken by a learned single judge of this Court

in W.P. No. 335 of 2002 dated 19.8.20099 (S.Navarathinam v. The Executive Engineer(Distribution), Tamil Nadu Electricity Board,Tiruchendur). The learned Senior counsel alsorelied on a judgment of the HonourableSupreme Court in Gujarat Urja Vikash NigamLimited v. Essar Power Limited reported in2008-4-CTC 539).

4. In view of the above legal position asheld, the remedy for the petitioner atpresent is to file an appropriate appealunder Sections 153 and 154 of the Act beforethe Special Court."

65. The said decision was appealed by the respondentElectricity Board, where a Division Bench of this Court in 2016WLR 851 has held as follows :

"In the issue of theft of electricity priorto the commencement of the Indian ElectricityAct, 2003, the learned Single Judge, by theimpugned order dated 09.08.2010, refused toentertain the writ petition of the respondentby delegating it to the appellate remedy.The only aspect is that keeping in mind theprovisions of the new Act, the appellateremedy is stated to be before the SpecialCourt constituted under the new Act.2. In coming to the conclusion, the learnedSingle Judge has relied on the provision ofSection 185 of the new Act stipulating thatany order passed under the old Act would beconstrued to be an order made under thecorresponding provision of the present Act.In fact, the matter in issue is really ofprocedural nature as to where the appealwould lie.

3. We regret that this issue has been hangingfire now for seven years and we find noreason to interfere with the impugned order.

4. The appeal is dismissed. No costs."

66. The learned Additional Advocate General has howeverrelied upon heavily the decision of the learned Judge of thisCourt, where exactly the similar issue was confronted, in thematter of D.D.Dhorrairaaj v. State reported in 2017 (4) CTC 846,where the learned Judge has in detail dealt with the exact issuenow has been confronted before this Court and has given aquietus. For the sake of convenience and easy understanding, therelevant paras of the said decision of the learned Judge in Dhorrairaaj's case is extracted hereunder :

"9. Assuming for a moment that in theyear 2003, The Indian Electricity Act, 1910and the Electricity (Supply) Act, 1948 arerepealed by the Parliament simpliciter, then,by virtue of Section 6(e) of the GeneralClauses Act, the prosecution against thepetitioner herein before the criminal Courtand the determination of civil liabilitybefore the authorities will not standextinguished, because, those actions arestatutorily protected by Section 6 of theGeneral Clauses Act and they have to benecessarilytakentotheirlogicalconclusions. 10. The question now is, whether the2003 Act has denuded the aforesaid twojurisdictions, viz., the jurisdiction of theMagistrate to proceed with the trial and thejurisdiction of the authorities to determinethe civil liability?

11. Section 185(5) of the 2003 Act whichhas been extracted above clearly savesSection 6 of the General Clauses Act andthere is no evidence to infer that the 2003Act has extinguished either the jurisdictionof the Magistrates for trial of the offence;or the jurisdiction of the authorities fordetermining the civil liability for the actsthat have taken place prior to coming intoforce of the 2003 Act.

12. To sum up, from a bare reading ofthe aforesaid provisions of the old and thenew Act, prosecutions under the old Act arestatutorily protected and there is noambiguity at all to come to a differentconclusion as canvassed by the learnedcounsel for the petitioner. On the contrary,if his submission is accepted, Section 185(5)of the 2003 Act would become otiose.13. Now coming to the various rulings,it is true that a learned Single Judge inA.R.Metallurgicals (supra) had taken a viewthat the civil liability under the old Actshould be referred to the Special Courtcreated under the new Act.

14. Indubitably, the new Act hasrepealed the 1910 Act and the 1948 Act andhas vested the Special Court with the powerto try the offences as well as determine thecivil liability arising out of the offencecommitted by the consumer. When the 2003 Actcame into force on 02.06.2003, Section 151did not have any proviso. However, Sections153 and 154 as they stand now, were availablethen too. The first and second provisos toSection 151 were introduced only with effectfrom 15.06.2007. Bearing this in mind, if theopening sentence of Section 153, viz., "theState Government may, for the purposes ofproviding speedy trial of offences referredto" is viewed, it is apparent thatconstitution of Special Courts is notmandatory. It was left to the discretion ofthe State Governments to constitute a SpecialCourt taking into consideration the backlogof electricity theft cases in the State andthe need for providing speedy trial ofoffences. The constitution of Special Courtshave been left to the State Governments andtherefore, the Parliament was aware that themoment the 2003 Act comes into force, theState Governments cannot be expected toconstitute Special Courts overnight, becausethe constitution of a Court is not by a magicwand. It requires a discussion by the StateGovernment with the High Court for makingavailable Judicial Officers and the necessaryinfrastructure to man the Court. Forinstance, in the State of Tamil Nadu, theSpecial Courts under the 2003 Act wereconstituted with the concurrence of the HighCourt only in 2006 by G.O.Ms.No.102, Energy(B1) Department dated 05.10.2006. That is whySection 151 of 2003 Act used the expression"no Court shall take cognizance of". It doesnot say "the Special Court shall takecognizance of". This means that even in theabsence of Special Courts, the Courtempowered under Classification II of ScheduleI of the Code of Criminal Procedure can takecognizance of the offence under the 2003 Act.But, one may, after reading Section 154 ,impulsively jump to a conclusion that theoffence under the Act can be tried only by a Special Court, notwithstanding the provisionsof the Code of Criminal Procedure. Aharmonious reading of Sections 151, 153 and154 would lead to the conclusion that it isonly when the State Government constitutesthe Special Court, with the concurrence ofthe High Court, that all other Courts aredenuded of the jurisdiction to try theoffence. It is only then that the SpecialCourt will have exclusive jurisdiction to trythe offences under the 2003 Act.

15. It is also a fact that the orderpassed by the learned Single Judge has beenconfirmed by the Division Bench in theChairman, Tamil Nadu Electricity Board vs.A.R.Metallurgicals Private Limited [2016W.L.R. 851]. With due deference, however,neither the Single Judge nor the DivisionBench, in A.R.Metallurgicals (supra), hadnoticed the earlier judgments of this Courtrendered by two Single Judges in State (TNEB)rep.byInspectorofPolice,Sethupavasathiram Police Station, Thanjavur[unreported order in Crl.R.C.(MD) No.108 of2008 dated 09.06.201] and Hi-Tech MineralIndustries (supra). They have also missedthe Division Bench judgment in the ExecutiveEngineer(Distribution),TamilNaduElectricity Board, Thiruchendur vs. S.J.Gayas(supra).

16. Be that as it may, the issue hasbeen settled beyond cavil by the judgment ofthe Supreme Court in Himachal Pradesh StateElectricity Regulatory Commission and anothervs. Himachal Pradesh State Electricity Board[(2014) 5 SCC 219]. The issue before theSupreme Court was whether the action taken bythe Himachal Pradesh State ElectricityRegulatory Commission under the repealedElectricity Regulation Commissions Act, 1998should be transposed into the 2003 Enactment.In other words, under the 1998 Enactment, anappellate remedy was provided with the HighCourt, whereas, in the 2003 Enactment, theappellate remedy lay before the AppellateTribunal created under Section 110. Whiledealing with this issue, the Supreme Courtconsidered Section 185 of the 2003 Act and has held as follows:

"25. At this stage, we may state withprofit that it is a well-settled propositionof law that enactments dealing withsubstantive rights are primarily prospectiveunless they are expressly or by necessaryintentionorimplicationgivenretrospectivity. The aforesaid principle hasfull play when vested rights are affected. Inthe absence of any unequivocal expose, thepiece of legislation must exposit adequateintendment of legislature to make theprovision retrospective. As has been statedinvariousauthoritiesreferredtohereinabove, a right of appeal as well asforum is a vested right unless the said rightis taken away by the legislature by anexpress provision in the statute by necessaryintention. 28. We have referred to the aforesaidparagraphs as Mr Gupta has contended thatwhen there is repeal of an enactment andsubstitution of new law, ordinarily thevested right of a forum has to perish. Onreading of Section 185 of the 2003 Act inentirety, it is difficult to accept thesubmission that even if Section 6 of theGeneral Clauses Act would apply, then alsothe same does not save the forum of appeal.We do not perceive any contrary intentionthat Section 6 of the General Clauses Actwould not be applicable. It is also to bekept in mind that the distinction betweenwhat is and what is not a right by theprovisions of Section 6 of the GeneralClauses Act is often one of great fitness.What is unaffected by the repeal of a statuteis a right acquired or accrued under it andnot a mere hope, or expectation of, orliberty to apply for, acquiring right (seeM.S. Shivananda v. Karnataka SRTC [(1980) 1SCC 149 : 1980 SCC (L&S) 131] )."(emphasissupplied)

17. The following statement of law inthe judgment of the Division Bench inA.R.Metallurgicals(supra)isclearlycontrary to the above extracted observationof the Supreme Court in Himachal Pradesh State Electricity Board.

"2. In coming to the conclusion, thelearned Single Judge has relied on theprovision of Section 185 of the new Actstipulating that any order passed under theold Act would be construed to be an ordermade under the corresponding provision of thepresent Act. In fact, the matter in issue isreally of procedural nature as to where theappeal would lie."

(emphasis supplied)

In other words, when the Supreme Court saysthat the right of appeal as well as the forumof appeal is a vested right, the observationof the Division Bench that the "issue isreally of procedural nature as to where theappeal would lie" cannot be reconciled. ThisCourt is bound by the aforesaid judgment ofthe Supreme Court in Himachal Pradesh StateElectricity Regulatory Commission (supra).

18. A comparison of Section 39(1) of1910 Act with Section 135 (1) of the 2003 Actwould show that those two provisions are notin pari materia. Of course, Section 41(1)(c)of the 1910 Act is in pari materia with 138(1)(d) of the 2003 Act. Nevertheless, thatcannot mean that for the offence committed bya person prior to coming into force of the2003 Act, he should be prosecuted via theprocedure laid down for prosecution of theoffence under the 2003 Act. The forum cannotbe automatically shifted in the absence ofan intention to the contrary in the new Act.This can be viewed from another angle also.After a magisterial trial under the old Act,the accused will be entitled to an appealbefore the Sessions Court and a furtherrevision before the High Court. However,after a trial by a Special Court under thenew Act, the accused will have a right ofappeal only before the High Court underSection 156 of the 2003 Act. Thus, byshifting the trial from the Magistrate Courtto the Special Court, the accused will bedenied an opportunity to approach the HighCourt under its revisional jurisdiction,challenging the appellate order of theSessions Judge, which opportunity cannot be ordinarily denied by a judicial fiat eitherin exercise of powers under Section 407 or482 Cr.P.C.

19. The reliance placed upon by thelearned counsel for the petitioner on Section154(2) of the 2003 Act requires expatiation.As explained earlier the moment theParliament passed the 2003 Act, one cannotexpect the State Government to constitute aSpecial Court immediately. As pointed above,though the 2003 Act came into force on02.06.2003, the Special Courts in Tamil Naduwere constituted only on 05.10.2006.Section 154(2) is so designed that it isintended to adjudicate cases instituted inordinary Courts in respect of offencescommitted after the coming into force of the2003 Act, but before the constitution ofSpecial Court by the State Government. Tofurther elaborate, if an offence under the2003 Act has been committed after coming intoforce of Act on 02.06.2003 and before theconstitutionofSpecialCourt,theprosecution can be launched only before thejurisdictional Magistrate at the firstinstance. If the trial prolongs after theconstitution of the Special Court, the trialCourt is empowered under Section 154(2) totransfer the case to the Special Court. Thisprovision is not intended to transfer allpending trials in respect of offencescommitted prior to coming into force of the2003 Act, as that would militate against theprovisions of Section 185(5) of the 2003 Actand Section 6(e) of the General Clauses Actand lead to ridiculous and ludicrousconsequences. This power has to be exercisedonly by the trial Court and the superiorCourts cannot order such transfer. Thesuperior Court can only judicially review theorder of the trial Court ordering or refusingto transfer the case to the Special Court."

67. On perusal of all these decisions referred to above, thefollowing conclusive derivatives are emerged :

(a) Though the 1910 Act has got repealed by 2003 Act, by virtue of saving clause,especially by Section 185 of the 2003 Act,

whatever has been done or action taken, thathas been saved as if that those actions hadbeen taken under the 2003 Act, provided ifthe same is not inconsistent with theprovisions of 2003 Act.(b) The Section 153 of the 2003 Actenables the State Government to constituteSpecial Court, that was done in this Stateonly in the year 2006 and from June 2006onwards, Special Courts have come intoeffect.(c) Under Section 154(5) originally thewords employed was that, the Special Court"may" determine the civil liability, thatsituation was prevailing till 14.06.2007.However the Legislature, i.e., the Parliamentthought it fit to make an amendment making itas mandatory that, the civil liability"shall", be decided only by the Special Courtto be constituted in this regard underSection 153 of the 2003 Act. (d) The position which was prevailed atthe time of 2003 Act came into effect, thatis, what has been done already under the 1910Act, since has been saved, those issue has tobe gone into or to be decided under 1910 Actitself as it has been specifically savedunder Section 185(2) of the 2003 Act.(e) Nevertheless in view of Section 6(e)of the General Clauses Act as has been heldby the learned Judge in Dhorrairaaj's case(cited supra), the position has been madevery clear that the continuity of thecriminal proceedings under the old Act is notaffected by virtue of the repeal made underthe 2003 Act.

68. In so far as it relates to the issue of as to whetherthe 2003 Act override the provisions of the Arbitration Act isconcerned, the said dictum of the Hon'ble Apex Court in GujaratUrja Vikash Nigam Ltd, case (cited supra) has declared that, theprovision under the 2003 Act is a special provision which canalways override the general provisions especially Section 11 ofthe Arbitration Act, 1996.

69. In Metallurgical's case (cited supra), the learnedsingle Judge has decided as to where the appeal has to bepreferred and accordingly under Sections 153 and 154 of the 2003Act, the appeal shall be entertained by the Special Court.However the said Judgment which has been confirmed by the

Division Bench reported in 2016 WLR 851, may not advance thecase of the writ petitioner to drive the prosecution includingthe decision of the civil liability before the Special Courtconstituted under Section 153 of the Act.

70. In view of Section 185 of the 2003 Act r/w Section 6(e)of the General Clauses Act and also by taking into account theamendment made in Section 154(5) of the 2003 Act to insert theword 'shall' instead of the word 'may' to make it mandatory thatthe civil liability also to be decided by the Special Court onlyw.e.f. 15.06.2007, the arguments advanced by the learned Seniorcounsel for the writ petitioner cannot be accepted by this Court.

71. Since the issue has been elaborately discussed and aquietus has been given in the afore referred decisionsespecially in the decision of Dhorrairaaj's case by the learnedJudge, I am in complete agreement with the said view taken bythe learned Judge in the Dhorrairaaj's case which has beenextensively relied upon and extracted herein above.

72. The admitted fact was that, the occurrence taken placeon 15.05.2003 was well before the 2003 Act came into effect.Even after the Act came in to effect, the Special Court was notimmediately constituted and it was constituted only on05.10.2006 as per G.O.Ms.No.102, Energy (B.1) Department. Up to15.06.2007 the word 'may' alone was employed in Section 154(5)of the 2003 Act, thereby it can only be construed that, thedetermination of civil liability of the consumer can beundertaken by the Special Court, that does not mean that onlythe Special Court should undertake the adjudicative aspect tofix the civil liability of the consumer.

73. Moreover in this case, had the petitioner not approachedthis Court one after another by filing series of writ petitions,the issue could have been decided very many years back, i.e.,well before the 2007, amendment made in 154(5) of the 2003 Act.

74. Moreover it is a settled proposition that, anything isdone by making any amendment in the legislation or by bringing anew legislation repealing the erstwhile one, especially in thecontext of criminal liability, the same shall be only inprospective nature and not with retrospective effect. This issuealso has been dealt with by the learned Judge in Dhorrairaaj'scase (cited supra).

75. Moreover once the civil liability is hanging in the saidproceedings initiated by the respondent which included theimpugned communication, dated 28.10.2003 fixing the enquiry on14.11.2003, that liability to be resolved and decided only by

the authority under 1910 Act alone.

76. Merely because the criminal case pending before theMagistrate court was transferred to the Special Court, thatwould not ipso facto take away or abrogate the jurisdiction ofthe erstwhile authority under the 1910 Act, i.e., therespondent to decide the civil liability of the petitioner.

77. Moreover some of the Judgments cited by the petitionerside to state that, it become an automatic to transfer thecriminal case pending before the Magistrate to the SpecialCourt, on perusal, would reveal the fact that, all those caseswere ordered to transfer the case to the Special Court on theconsent given by the Public Prosecutor concerned in each of suchcase.

78. The very mandatory effect of deciding the civilliability of a consumer at the hands of the Special Court hascome into effect only from 15.06.2007 by virtue of the amendmentmade in this regard by employing the word 'shall' instead of'may' in Section 154(5) of the 2003 Act. The said positioncannot be visualised prior to the said date. Therefore what hasbeen taken place or occurred in May 2003 cannot be considered tobe the occurrence to be decided by the Special Court as has beenmandated under Section 154(5) of the Act by the word 'shall' inthe said sub-section, merely because it came into effect byvirtue of amendment only from 15.06.2007. Therefore the attemptmade by the learned Senior counsel appearing for the petitionerthat, once the 2003 Act came into effect and Sections 153 and154 has been enacted and the Special Court was constituted inthe year 2006 and the word 'shall' has been employed inSection154(5) of the Act in 2007 as of now still the issue ispending, the same shall be decided by the Special Court, cannotbe accepted by this Court.

79. All these aspects as has been mentioned above has beendiscussed and decided by the learned Judge in Dhorrairaaj's case(cited supra), which has given the complete answer to all theseissues, where also all these decisions supported by both sideshave been dealt with elaborately. I am in full agreement withthe said view expressed by the learned Judge in the saidDhorrairaaj's case (cited supra) and that apart, the presentconclusion arrived at in this case is also supported by specificreasons discussed above.

80. For all these reasons, this court feel that, theimpugned order need not be quashed as the petitioner can takeadvantage of the situation if at all any documents still has notbeen furnished to the petitioner and moreover it has alreadybeen held in the first part of this order that, the respondent during the enquiry shall not rely upon any document other thanwhat has been supplied to the petitioner.

81. Also the enquiry as contemplated through the impugnedorder, which was originally contemplated in the notice forenquiry issued by the respondent on various dates in the year2003, can very well be conducted or adjudicated to fix the civilliability on the petitioner, if any, pursuant to the charge ofalleged theft of energy as allegedly found on 15.05.2003 duringthe surprise inspection conducted by the respondent Board andcan very well be decided by the respondent's authority under the1910 Act.

82. Accordingly, the petitioner is relegated to submititself to the adjudicating / enquiry authority of the respondentBoard under the 1910 Act and face the enquiry in accordance withlaw.

83. Resultantly, while disposing the writ petition, thisCourt passes the following orders :

(i) that the impugned order is sustainable,as it does not require to be quashed.(ii)Since the enquiry date fixed as14.11.2003 already been gone by, the newenquiry date can be decided by therespondent and due intimation to becommunicated to the petitioner.

(iii) The respondent while conducting theenquiry / adjudication shall not rely uponany documents other than what has beensupplied to the petitioner.

(iv) The respondent authority is very wellentitled to or is having jurisdiction toconduct the enquiry or to adjudicate theissue to find out the civil liability onthe petitioner, if any, on the allegedtheft of energy case, dated 15.05.2003 andaccordingly, such authority can proceed todetermine the said issue in accordance withlaw.

With the aforesaid directions, this writ petition is disposed of. However there shall be no order as to costs.Consequently, connected miscellaneous petitions are closed. Sd/-Assistant Registrar(CS-)// True Copy//Sub Assistant RegistrartsvnToThe Superintending Engineer (Metro)Tamil Nadu Electricity Board,Coimbatore Electricity Distribution Circle,Coimbatore. +1cc to Mr.C.S.Krishnamurthi, Advocate, SR.No.1426.Order in W.P.No.32341 of 2003SSV(CO)CSR: 10.02.2020