THE EXECUTIVE ENGINEER, vs M.KADIRVEL,

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W.A. (MD) No.1698/2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on Pronounced on
29.09.2026 30.10.2026
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
AND
THE HONOURABLE MR. JUSTICE N.DILIPKUMAR
W.A. (MD) NO. 1698 OF 2021
CNR:{HCMD010511422021}
AND
C.M.P. (MD) NO. 7276 OF 2021
1. The Executive Engineer
Operation & Maintenance
Tamil Nadu Electricity Board
Karur Electricity Distribution Circle
Karur.
2. The Assistant Accounts Officer
Office of the Executive Engineer
Tamil Nadu Electricity Board
Revenue Branch / Urban
Karur, Karur District. .. Appellants
- Vs -
M.Kadirvel .. Respondent
Writ Appeal filed under Clause 15 of the Letters Patent Act against the
order dated 27.11.2018 passed by the learned single Judge in W.P. (MD)
No.5128/2009.
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For Appellants : Mr. S.Deenadhayalan
For Respondents : Ms. Gopika Nambiar for
Mr. C.Nahil Nandha
JUDGMENT
M.DHANDAPANI, J.
The impugned order of the learned single Judge in W.P. (MD)
No.5128/2009 dated 27.11.2018 in and by which the demand notice issued u/s 4
of the Tamil Nadu Electricity Board (Recovery of Dues) Act, 1978 was quashed is
put in issue through the present appeal.
2. The facts leading to the filing of the writ petition, as evidenced through
the order of the learned single Judge and captured from the said order, is as
under :-
The petitioner is owning a mosquito net manufacturing
unit in the name and style of “Senthil Filaments”. The unit was
functioning at Door No.22, Chinna Goundanoor,
Uppidamangalam, Karur District. It was granted electricity
service connection vide S.C.No.2061. The petitioner is also
having his residence at the very same address and he was
enjoying electricity supply vide S.C.No.2067. There was an
inspection of the petitioner's factory by the second respondent
on 19.11.2007 at around 21.30 hours. It was noted that there
was an illegal tapping of electricity. Thereafter, the second
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respondent issued an order of provisional assessment for theft
of electrical energy vide letter bearing No.AEE/O&M/PYR/F
Doc/D No.202/07 dated 19.11.2007. The figure mentioned in
the provisional assessment order was Rs.28,28,499/-.
2. The petitioner lodged his objections to the demand set
out in the provisional assessment order. But the second
respondent rejected the objections of the petitioner and
passed the final assessment order vide letter bearing
No.AEE/O&M/PYR/F.Doc/D.No.227/07 dated 04.12.2007. The
same was put to challenge in W.P.(MD)No.10918 of 2007.
During its pendency, the second respondent issued a letter
bearing No.AAO/RB/U/KRR/ASI/F.SC.2061/D.No.454/08 dated
13.10.2008, enclosing the bill under Section 3(1) of the TNEB
(Recovery of Dues Act) 1978 and also informed the petitioner
that the petitioner has to pay a sum of Rs.26,30,669/- within a
period of thirty days from the date of service of the bill.
3. Challenging the same, the petitioner filed an appeal
before the first respondent. The first respondent by
proceedings bearing No.E.E/O & M/URBAN/KARUR/2009
dated 09.03.2009 rejected the said appeal. Subsequently, to
enforce the earlier proceedings, the second respondent issued
demand notice under Section 4 of TNEB (Recovery of Dues) Act
1978 on 17.03.2009. Challenging the same, this writ petition
has been filed.
3. Learned single Judge held that the Electricity Act 2003 has been laid
down as an exhaustive code in respect of the subject matter of electricity and
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that the earlier enactments had been repealed. Further it was held that the
Electricity Act which is a central enactment is operating the same field in which
the state legislation is also operating and further it was held that there is a direct
conflict between two statutory schemes and the absence of the Tamil Nadu
Electricity Board being in existence due to the paradigm shift in the law it was
held that the respondents were not justified in clinging on to old concepts that
are no longer in vogue and on the above reasoning, the impugned notice was
held to be one without the authority of law. Aggrieved by the same, the present
writ appeal has been filed by the appellants.
4. Learned standing counsel appearing for the appellants submit that there
is no denial of the theft of electricity by the respondent and in fact, by paying the
compounding charges, the respondent had accepted the guilt and in such a
situation, the demand notice, which is a continuation of the same cannot be
challenged by the respondent.
5. It is the further submission of the learned standing counsel that the
Tamil Nadu Electricity Board (Recovery of Dues) Act, 1978, (for short ‘Recovery
Act’) has received the assent of the President and the mere repeal of the
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Electricity (Supply) Act, 1948 by means of the Electricity Act, 2003 (for short ‘Act,
2003’), would not render the provisions of the Recovery Act repugnant. It is the
further submission of the learned standing counsel that the replacement of the
Tamil Nadu Electricity Board (for short ‘the Board’) by the other two arms, viz.,
TANGEDCO and TANTRANSCO, the generating and transmission entities would
not affect the hold of the Board, as the Board holds all the shares of the two
entities. Therefore, the Recovery Act cannot be said to be repugnant to Section
56 (1) of Act, 2003.
6. It is the further submission of the learned standing counsel that both
the Recovery Act and Act, 2003, prescribes the modes of recovery of electricity
dues and such being the case, the manner of recovery alone cannot make the
provisions of the Recovery Act repugnant to Act, 2003. It is the further
submission of the learned standing counsel that Section 175 of Act, 2003 clearly
stipulates that Act, 2003 shall be in addition to and not in derogation of other
laws and such being the case, deeming the Recovery Act as repugnant to Act,
2003 is wholly erroneous.
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7. It is the further submission of the learned standing counsel that there is
no repugnancy in the Recovery Act and it will prevail as it has received the assent
of the President as early as on 13.06.1978. Further, it is submitted that the
learned single Judge erred in holding that the Recovery Act is repugnant as per
Article 254 (1) of the Constitution without adverting to Article 254 (2) of the
Constitution.
8. It is the further submission of the learned standing counsel that when a
law occupies the field and prescribes the manner for recovery and a new law is
put in place repealing the earlier enactment and the new law provided that the
said law will be in addition and not in derogation of the old law, as both the laws
occupy the same field and the laws create distinct procedure to recover the dues,
the said in procedure between the two laws could only be added and there
cannot be any deletion of the procedure, which is the crux of Section 175 of Act,
2003. However, this crucial point has been failed to be noticed before the order
was passed by the learned single Judge holding that the provisions of the
Recovery Act is repugnant to Act, 2003.
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9. It is the further submission of the learned standing counsel that even
otherwise, on the basis of the new law, viz., Act, 2003, the respondent had
accepted the theft of electricity, which was the basis for the impugned
provisional assessment and had paid the compounding charges of Rs.2,10,000/=
as calculated u/s 152 of Act, 2003, to wriggle out of prosecution u/s 135 of Act,
2003, the theft having been accepted by the respondent, the respondent had
paid the compounding charges. When the theft had been accepted by the
respondent and compounding charges have been paid without any demur,
moreso, when the notice alongwith the calculation had been on the basis of
Section 3 (1) of the Recovery Act, the respondent is estopped from contending
that the provisions of the Recovery Act is repugnant to Act, 2003 insofar as
demand made, which is also part and parcel of the levy made towards
compounding charges.
10. It is the further submission of the learned standing counsel that
Section 6 of the Recovery Act provides for recovery of the amount as land
revenue in addition to other modes of recovery as prescribed, inclusive of the
prescription under Act, 2003 and such being the case, the respondent having
accepted the theft of electricity and paid the compounding charges, the act of the
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appellants in resorting to recovery of the amount due from the respondent by
taking recourse to the Recovery Act cannot be said to be erroneous as the said
provision stands protected by Section 175 of Act, 2003, which clearly states that
the provisions contained in Act, 2003 are only in addition and not in derogation
of the other laws, which hold the field. However, there is no discussion with
regard to Section 175 of Act, 2003 in the order passed by the learned single
Judge, while the repugnancy is tested only on the basis of Section 56 of Act, 2003
vis-a-vis Section 6 of the Recovery Act.
11. It is the further submission of the learned standing counsel that the
Recovery Act has been enacted only for the purpose of collecting the dues, which
are payable to the Board as could be evidenced from the objects and reasons for
enacting the Recovery Act, which also provides that the mode of recovery
provided therein would be without prejudice to the other modes of recovery,
which clearly shows that the said provision is not repugnant to Act, 2003, as even
Act, 2003 provides that the provisions therein are only additions to the already
existing laws. When the respondent has accepted the theft of electricity and had
compounded the offence by paying the compounding charges, the respondent
cannot seek to wriggle out of the payment due to the Board by claiming that the
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said amount could, if at all, be collected only through a suit, which is a
cumbersome procedure for which alone the Recovery Act was enacted and the
mode prescribed in the Recovery Act being in addition to the other modes of
recovery provided even under Act, 2003, the action of the appellants in resorting
to recovery under the Recovery Act cannot be faulted with.
12. In fine, it is the submission of the learned standing counsel that the
provisions of the Recovery Act and Act, 2003 should be harmoniously read, more
particularly with regard to the repeal and saving clause provided u/s 185 of Act,
2003, which would clearly show that the provision of recovery mandated under
the Recovery Act is not repugnant to Act, 2003. However, without adverting to
the other provisions of Act, 2003, which has saved the repugnancy alleged under
the Recovery Act, the impugned order has come to be passed, which requires
interference at the hands of this Court.
13. Per contra, learned counsel appearing for the respondent submits that
Section 2 (1) of the Recovery Act defines the term 'Board' which means the Tamil
Nadu Electricity Board constituted under S.5 of the Electricity (Supply) Act, 1948.
Upon enactment of Act, 2003 by the Parliament, by virtue of Section 185 of Act,
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2003 the Electricity (Supply) Act, 1948 stood repealed and the Board, which was
created by the Electricity (Supply) Act, 1948, immediately ceased to exist.
14. Though Section 131 of the Act, 2003 provides for creation of a transfer
scheme whereby the properties, liabilities, rights, etc., of the Tamil Nadu
Electricity Board stood vested in the Government which would then re-vest it in a
Government Company, which is the fulcrum of the argument of the appellant
that the dues to the Board would not get extinguished, it is the submission of the
learned counsel that there is no dispute about the fact that the dues to the
Electricity Department survive even after the extinguishment of the Board.
However, it is the contention of the learned counsel that upon the repeal of the
Electricity (Supply) Act, 1948 which created the Tamil Nadu Electricity Board, the
Recovery Act would not survive.
15. It is the further submission of the learned counsel that upon the
enactment of Act, 2003 and after framing a scheme under Section 131 of the Act,
2003, the Government of Tamil Nadu ought to have amended the Recovery Act
and substituted the successor to the Tamil Nadu Electricity Board in its place. It is
the further submission of the learned counsel that even assuming for the sake of
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argument that the scheme formulated by the State of Tamil Nadu had revived the
Tamil Nadu Electricity Board itself, even then it would be necessary for the State
to amend Section 2 (1) of Recovery Act. This is because as per Section 2(1) of the
1978 Act, the Tamil Nadu Electricity Board is constituted under the Electricity
(Supply) Act, 1948, which has now been repealed by Section 185(1) of the
Electricity Act, 2003.
16. It is the further submission of the learned counsel that any law made
by the State Legislature, the assent of the Governor of the State would suffice
and the assent of the President is required only in circumstances as is
contemplated under Article 254 of the Constitution. Since the law made by the
State through the Recovery Act was repugnant to the Electricity Act, 1910, the
assent of the President was obtained and once the said law stood repealed and
replaced by Act, 2003, then it is incumbent on the State to resubmit the said
Recovery Act for the assent of the President and in the absence of any assent of
the President, the said Recovery Act would be repugnant to Act, 2003 as Act,
2003, only permits recovery of the dues to the Electricity Department by way of
civil suit and disconnection of electricity supply.
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17. It is the further submission of the learned counsel that even the
repealed Electricity (Supply) Act, 1948, provided only for recovery of the dues to
the Board by institution of a suit in the event of expiry of period of limitation.
The Recovery Act was enacted only to overcome the difficulty faced by the
Electricity Board in realising the amount by filing a civil suit, as the procedure is
cumbersome and realisation takes quite a lengthy period.
18. It is the further submission of the learned senior counsel that as the
mode of recovery contemplated u/s 24 of the Indian Electricity Act, 1910 and
Section 60-A of the Electricity (Supply) Act, 1948 on the one hand and Section 6
of the Recovery Act on the other hand were contradictory, the provisions being
repugnant to each other, the assent of the President was required, which was
obtained to make the Recovery Act valid.
19. It is the further submission of the learned counsel that such realisation
of dues by the Recovery Act had left the consumers in lurch, as they could not
dispute the liability or quantum and were forced to pay out the amount
demanded, to obviate the difficulties faced by the consumers by following the
summary proceedings for realisation of the due amount, where the consumers
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would not be left with any avenue to question the liability or the quantum, Act,
2003 had put in the built in safeguard of providing only the institution of a civil
suit and disconnection of electricity as the course for realising the dues. In the
absence of assent of the President, the Recovery Act would be repugnant to Act,
2003, as the repugnancy was done away with only in respect of the Electricity
(Supply) Act, 1948 and Indian Electricity Act, 1910 by the Presidential assent for
the Recovery Act and not in respect of Act, 2003. Once Act, 2003 has been
enacted, the State was bound to have resubmitted the Recovery Act for the
assent of the President and the absence of assent of the President would render
the Recovery Act repugnant to Act, 2003.
20. It is the further submission of the learned counsel that Section 56 (1) of
Act, 2003 is a pari materia provision to Section 24 of the Indian Electricity Act,
1910. No assent of the President having been obtained for the Recovery Act
after coming into force of Act, 2003, the provisions for recovery of dues as
contemplated under the Recovery Act would be repugnant to Act, 2003 as the
Presidential assent obtained previously to obliterate the repugnancy insofar as
the Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948 would not save
the Recovery Act upon coming into force of Act, 2003, as per the law laid down in
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Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical
Educational & Charitablke Trust – Vs – State of Tamil Nadu & Ors. (1996 (3) SCC
15) .
21. It is the further submission of the learned counsel that the aforesaid
ratio has taken into consideration the fact that the Parliament, under Article 254
(2) of the Constitution can enact at any time any law that varies or repeals the
law made by the Legislature of the State even though the latter has received
Presidential assent. To drive home the aforesaid point, learned counsel, referring
to the decision of the Apex court in Pt.Rishikesh & Anr.- Vs – Salma Begum
(1995 (4) SCC 718) , it is submitted that once Parliaments amends the law and the
State legislation, which had previously got Presidential assent is repugnant to the
Central legislation, once again the State Legislature has to reserve the said order
for the consideration for the assent of the President and the lack of Presidential
assent in the face of repugnancy leads to implied repeal of the Recovery Act.
22. Pointing out the various repugnancy between the Recovery Act and
Act, 2003, it is the submission of the learned counsel that the mode of recovery
by way of suit to recover the electricity dues as contemplated under Act, 2003 is
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the only mode by which the amount could be recovered and the recovery of the
amount as land revenue contemplated under the Recovery Act is wholly
erroneous. It is the further submission of the learned counsel that Act, 2003, is
a consolidating statute and a complete code and the Recovery Act contemplating
a different mode or recovery is repugnant to Section 56 of Act, 2003 and,
therefore, there is implied repeal of the Recovery Act.
23. It is the further submission of the learned counsel that the non
obstante clause provided under Section 174 of Act, 2003 would have an
overriding effect over any other law, which is inconsistent with Act, 2003 and,
therefore, the inconsistency of the provisions of the Recovery Act will stand
negated through the binding nature of the provisions of Act, 2003, spelt out
through Section 174.
24. It is the further submission of the learned counsel that the Electricity
Supply Code, 2004, has been framed, which provides for the manner in which
action is to be initiated against a consumer, who has allegedly committed theft of
electricity. Specifically adverting to Regulation 23 therein, it is the submission of
the learned counsel that even the provisional assessment and final assessment
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orders passed in the present case refers to Act, 2003 and the Supply Code and
reference in this regard was drawn to Regulation 23 (20) of the Tamil Nadu
Electricity Supply Code.
25. Pointing out the above, learned counsel submitted that Regulation 2
(a) of the Tamil Nadu Electricity Supply Code, 2004 defines ‘Act’ as the Electricity
Act, 2003 and, therefore, a combined reading of Regulation 23 of Chapter 4 of
the Tamil Nadu Electricity Supply Code, 2004 and Regulation 2 (a) would mean
that the Department can recover the dues payable by an accused person, who
committed theft of electricity by resorting to the provisions of Act, 2003 alone,
more particularly Section 56 and it cannot take recourse to the Recovery Act for
recovery of the dues.
26. It is further submitted by the learned counsel that if really the
Parliament had intended the provisions of the Recovery Act to be one of the
modes of recovery of electricity dues along with a civil suit, then it would have
been expressly provided as has been provided in certain provisions of Act, 2003.
Since there is a conscious omission of the recovery of electricity charges by way
of arrear of land revenue, the intention of the Parliament is writ large and,
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therefore, the Recovery Act cannot be pressed into service for the purpose of
recovering the amount due from the respondent.
27. It is therefore the submission of the learned counsel that rightly
appreciating all the aforesaid factors, the learned single Judge had set aside the
impugned notice of recovery, which does not warrant any interference at the
hands of this Court.
28. This Court gave its careful consideration to the submissions advanced
by the learned counsel appearing on either side and perused the materials
available on record.
29. The facts in the present case relating to the theft of electricity by the
respondent has not been deliberated by the learned single Judge; rather the
learned single Judge had only gone into the legality of the provisions of the
Recovery Act vis-a-vis Act, 2003 more particularly with reference to the
repugnancy of the provision u/s 6 of the Recovery Act as against Section 56 of
Act, 2003. Therefore, this Court would dissect the various provisions under the
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Recovery Act and Act, 2003 to find out whether Section 6 of the Recovery Act is
repugnant to Section 56 of Act, 2003.
30. The Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948
governed the field of electricity before the said Acts were repealed Act, 2003,
which came into force on 10.06.2003. However, when the repealed Acts were
governing the field, the theft of electricity and the manner of recovery of the
amounts for the said theft was provided for u/s 24 of the Indian Electricity Act,
1910, which stood as under :-
“ 24. Discontinuance of supply to consumer neglecting to
pay charge :-
(1) Where any person neglects to pay any charge for
energy or any [sum, other than a charge for energy,]
[ Substituted by Act 1 of 1922, Section 10, for " other sum" .]
due from him to a licensee in respect of the supply of energy to
him, the licensee may, after giving not less than seven clear
days' notice in writing to such person and without prejudice to
his right to recover such charge or other sum by suit, cut off
the supply and for that purpose cut or disconnect any electric
supply-line or other works, being the property of the licensee,
through which energy may be supplied, and may discontinue
the supply until such charge or other sum, together with any
expenses incurred by him in cutting off and reconnecting the
supply, are paid, but no longer.”
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31. The aforesaid provision, without prejudice provides for realising such
charges, which are due from the person by filing a suit while also permitting the
cutting off of electrical supply to the said person.
32. As already stated above, while the Indian Electricity Act, 1910 as also
the Electricity (Supply) Act, 1948, stood thus, there arose a necessity to enact the
Recovery Act, as the recovery of dues due to theft of electricity and other
fraudulent activities through filing of a suit was cumbersome and, therefore, the
Recovery Act was enacted and came into force on 13.06.1978 and the objects
and reasons therein, show the necessity for such enactment, which is as under :-
“Prior to the formation of the Tamil Nadu Electricity Board,
arrears of current consumption charges, etc., due to the
Electricity Department were recovered as arrears of land
revenue by invoking the provisions of the Revenue Recovery
Act 1864 (Tamil Nadu Act II of 1864). This facility was
withdrawn subsequently after the formation of the Tamil
Nadu Electricity Board, as the arrears were not due to
Government. The Tamil Nadu Electricity Board has, therefore,
to file civil suits for recovery of arrears. The process of filing
suits and execution petitions for bringing the part of
consumers to pay the arrears, even after the decrees were-
passed, is a time consuming process and very often it takes a
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number of years for recovery of arrears. Even then, the
consumers take up the matter on appeals and the Tamil Nadu
Electricity Board has to face endless litigation to realise the
amount. In view of the above practical difficulties, the Tamil
Nadu Electricity Board has suggested that suitable legislation
may be undertaken providing for expeditious recovery of the
arrears of current consumption charges, etc. After carefully
examining the proposal of the Tamil Nadu Electricity Board,
the Government have decided to undertake a separate
legislation for this purpose.”
33. From the above objects and reasons, it is clear that the time
consuming nature of the recovery process in filing a suit to recover the dues
payable has resulted in the enactment of the Recovery Act. This legislation,
which has been enacted by the State, has been submitted to the President for
assent and had also received the Presidential assent. Thereby, while the Indian
Electricity Act, 1910 provided for recovery of the dues by filing a suit and also
disconnection of electrical supply, divergent to the said provision, which is found
in Section 24 of the Indian Electricity Act, the Recovery Act was enacted, which
provided for recovery of the dues as land revenue. The Presidential assent had
set at naught the repugnancy between the Indian Electricity Act, 1910 and the
Recovery Act, which is not in dispute.
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34. Ever since the coming into force of the Recovery Act, the recovery of
dues payable to the Board has been recovered by resorting to the provisions of
the Recovery Act. For almost two and a half decades, the Recovery Act had been
used for recovering the dues. Then came Act, 2003, which was enacted by
repealing the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948,
which came into effect on 26.05.2003. One of the salient features of the Bill,
which culminated into Act, 2003 was the provisions relating to theft of electricity
to have a revenue focus.
35. The enactment of Act, 2003, resulted in the repealing of the Indian
Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity
Regulatory Commissions Act, 1998. The objects behind such enactment and the
reasons for the same have been spelt out while enacting Act, 2003. The manner
of recovery of dues payable for the electricity is provided for u/s 56 of Act, 2003
and for better appreciation, the same is extracted hereunder :-
“ 56. Disconnection of supply in default of payment :-
(1) Where any person neglects to pay any charge for
electricity or any sum other than a charge for electricity due
from him to a licensee or the generating company in respect of
supply, transmission or distribution or wheeling of electricity
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to him, the licensee or the generating company may, after
giving not less than fifteen clear days’ notice in writing, to such
person and without prejudice to his rights to recover such
charge or other sum by suit, cut off the supply of electricity
and for that purpose cut or disconnect any electric supply line
or other works being the property of such licensee or the
generating company through which electricity may have been
supplied, transmitted, distributed or wheeled and may
discontinue the supply until such charge or other sum,
together with any expenses incurred by him in cutting off and
reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if
such person deposits, under protest, -
(a) an amount equal to the sum claimed from him, or
(b) the electricity charges due from him for each month
calculated on the basis of average charge for electricity paid
by him during the preceding six months,
whichever is less, pending disposal of any dispute between
him and the licensee.
(2) Notwithstanding anything contained in any other law
for the time being in force, no sum due from any consumer,
under this section shall be recoverable after the period of two
years from the date when such sum became first due unless
such sum has been shown continuously as recoverable as
arrear of charges for electricity supplied and the licensee shall
not cut off the supply of the electricity.”
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36. Section 56 also provides for recovery of such charges or other sums,
which are due by filing a suit and also by cutting off the electrical supply. The
aforesaid provision is a pari materia provision to Section 24 of the Indian
Electricity Act, 1910.
37. During the subsistence of Section 24 of Indian Electricity Act, 1910, the
Recovery Act came into force on 13.6.1978 upon receiving the assent of the
President, as the Recovery Act provided for the recovery of the sum payable by
the person as land revenue, which was not in line with Section 24 of the Indian
Electricity Act, which provided for recovery only by way of suit and, therefore, to
overcome the repugnancy, Presidential assent was obtained and the said
Recovery Act had been enforced.
38. Upon the enactment of Act, 2003, a pari materia provision is included
therein by way of Section 56 (1), wherein also the recovery mode is shown as
filing of a suit. In the wake of the said provision, the notice had come to be
issued under the Recovery Act to recover the amount due as land revenue by
invoking Section 6 of the Recovery Act, which, according to the respondent, is
repugnant to Section 56 (1) of Act, 2003, as subsequent to the enactment of Act,
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2003, the Recovery Act had not received the Presidential assent and, therefore,
Section 6 of the Recovery Act is repugnant to Section 56 (1) of Act, 2003. This
contention has been upheld by the learned single Judge for the reasons stated in
the order, the relevant portion of which is quoted hereunder :-
“11. As rightly contended by the petitioner's counsel,
Section 56 of the Act clearly states that the dues can be
recovered by filing of a civil suit. Section 56(2) incorporates the
bar of limitation. Thus, there is an obvious repugnancy
between the scheme of the Electricity Act 2003 and the
scheme sets out in the TNEB (Recovery of Dues) Act 1978. Rule
23(A)(a) of the Tamil Nadu Electricity Supply Code, 2004
categorically provides that the dues shall be recovered in the
manner as provided in the Electricity Act. Section 56 speaks
about disconnection and filing of civil suit. It does not permit
any other mode. If the Tamil Nadu Electricity Supply Code
2004 had intended that the mode of recovery prescribed in the
1978 Act also can be invoked, it would have spelt it out
explicitly. What was omitted to be provided in the statute,
cannot be supplied by the Court. The petitioner's counsel drew
my attention to the decision of the Constitution Bench of the
Hon'ble Supreme Court reported in AIR 1959 SC 648(Deep
Chand V. State of U.P.) wherein it was held as follows:
“(29) ... Repugnancy between two statutes may thus be
ascertained on the basis of the following three principles: (1)
Whether there is direct conflict between the two provisions;
(2) Whether Parliament intended to lay down an exhaustive
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code in respect of the subject matter replacing the Act of
the State Legislature; and (3) Whether the law made by
Parliament and the law made by the State Legislature
occupy the same field.”
12. I am of the view that all the three conditions set out
above are satisfied in the instant case. The Electricity Act 2003
has been laid down as an exhaustive code in respect of the
subject matter of electricity. Earlier enactments had been
repealed. Electricity Act which is a central enactment is
operating the same field in which the state legislation is also
operating. I have already held that there is a direct conflict
between two statutory schemes. The petitioner's counsel also
draws my attention to another decision of the Hon'ble
Supreme Court reported in (1964) 4 SCR 461 : AIR 1964 SC
1284 (State of Orissa and another V. M.A.Tulloch and Co.). In
the said decision, the Hon'ble Supreme Court held as under:-
“14. ... Repugnancy arises when two enactments both
within the competence of the two Legislatures collide and
when the Constitution expressly or by necessary implication
provides that the enactment of one legislature has
superiority over the other then to the extent of the
repugnancy the one supersedes the other. But two
enactments may be repugnant to each other even though
obedience to each of them is possible without disobeying
the other. The test of two legislations containing
contradictory provisions is not, however, the only criterion
of repugnancy, for if a competent legislature with a superior
efficacy expressly or impliedly evinces by its legislation an
intention to cover the whole field, the enactments of the
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other legislature whether passed before or after would be
overborne on the ground of repugnance. Where such is the
position, the inconsistency is demonstrated not by a
detailed comparison of provisions of the two statutes but by
the mere existence of the two pieces of legislation. In the
present case, having regard to the terms of Section 18(1) it
appears clear to us that the intention of Parliament was to
cover the entire field and thus to leave no scope for the
argument that until rules were framed, there was no
inconsistency and no supersession, of the State Act.”
Applying the aforesaid ratio, I hold that a consolidating
statute like the Electricity Act 2003 edges out the TNEB
(Recovery of Dues) Act 1978 from its field of operation.”
39. There is no quarrel with the fact that Act, 2003 provides for recovery,
while providing disconnection of electrical supply to the said person, which is
provided u/s 56 (1). As already stated, it is a pari materia provision to Section 24,
which was already in existence in the Indian Electricity Act, 1910 to overcome
which, the Recovery Act was enacted. There existed a repugnancy between the
Indian Electricity Act, 1910 and the Recovery Act, which necessitated the
placement of the Recovery Act before the President and assent was obtained.
Upon the assent being given, the Recovery Act came into force and has been
holding the field, till its challenge through the writ petition resulting in the
impugned order.
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40. As already stated above, Section 56 (1) of Act, 2003, is a pari materia
provision to Section 24 of the Indian Electricity Act, 1910. Is there a need to
obtain the assent of the President for the Recovery Act on coming into force of
Act, 2003 or does the provisions of Act, 2003 save the Recovery Act from being
repugnant in the light of Article 254 of the Constitution is the only issue that
requires to be considered.
41. The issue of repugnancy between a Central legislation and a State
legislation, which fall under the Concurrent List have been dealt with by the
Constitution Bench in M. Karunanidhi – Vs - Union of India (1979 (3) SCC 431) ,
wherein the Apex Court held thus :-
“On a careful consideration, therefore, of the authorities
referred to above, the following propositions emerge:-
1. That in order to decide the question of repugnancy it
must be shown that the two enactments contain
inconsistent and irreconcilable provisions, so that they
cannot stand together or operate in the same field.
2. That there can be no repeal by implication unless
the inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a particular
field, there is room or possibility of both the statutes
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operating in the same field without coming into collision
with each other, no repugnancy results.
4. That where there is no inconsistency but a statute
occupying the same field seeks to create distinct and
separate offences, no question of repugnancy arises and
both the statutes continue to operate in the same field.
In the light of the propositions enunciated above, there can
be no doubt that the State Act creates distinct and separate
offences with different ingredients and different punishments
and it does not in any way collide with the Central Acts. On the
other hand, the State Act itself permits the Central Act, namely,
the Criminal Law (Amendment) Act to come into its aid after an
investigation is completed and a report is submitted by the
Commissioner or the Additional Commissioner. It was
contended however by Mr. Venugopal that by virtue of the fact
that the State Act has obtained the assent of the President, it
will be deemed to be a dominant legislation, and, therefore, it
would overrule the Central Acts. Doubtless, the State Act is the
dominant legislation but we are unable to agree with Mr.
Venugopal that there are any provisions in the State Act which
are irreconcilably or directly inconsistent with the Central Acts
so as to overrule them. Last but not the least there is a very
important circumstance which completely and conclusively
clinches the issue and takes the force out of the argument of
Mr. Venugopal on the question of repugnancy. It would be seen
that in the original State Act, section 29 ran thus:-
"Act to overrule other laws, etc.- The provisions of this Act
shall have effect notwithstanding anything inconsistent
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therewith contained in any other law for the time being in
force or any custom, usage or contract or decree or order of a
court or other authority".
This section underwent an amendment which was brought
about by Tamil Nadu Act 16 of 1974 which substituted a new
section 29 for the old one. The new section which was
substituted may be extracted thus:-
"Saving - The provisions of this Act shall be in addition to,
and not in derogation of, any other law for the time being in
force, and nothing contained herein shall exempt any public
man from any proceeding by way of investigation or otherwise
which might, apart from this Act, be instituted against him".
th
This amendment received the assent of the President on 10
April, 1974 and was published in the Tamil Nadu Government
th
Gazette Extraordinary dated 16 April, 1974. We have already
shown that although the State Act was passed as far back as
30th December, 1973 it received the assent of the President on
th
the 10 April, 1974 that is to say, on the same date as Act 16 of
th
1974. The Act was however brought into force on the 8 May,
1974 when the new section 29 which had already replaced the
old section and had become a part of the statute. Therefore, for
all intents and purposes the State Act cannot be read in
isolation, but has to be interpreted in conjunction with the
express language contained in section 29 of the State Act. This
section has in unequivocable terms expressed the intention that
the State Act which was undoubtedly the dominant legislation
would only be "in addition to and not in derogation with any
other law for the time being in force" which manifestly includes
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the Central Acts, namely, the Indian Penal Code, the Corruption
Act and the Criminal Law (Amendment) Act. Thus, the
Legislature about a month before the main Act came into force
clearly declared its intention that there would be no question of
the State Act colliding with the Central Acts referred to above.”
(Emphasis Supplied)
42. By a comprehensive legislation, Act, 2003 replaced the Indian
Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity
Regulatory Commission Act, 1998. Considering the expanding field of electricity,
a comprehensive Act combining all the three was enacted to pave the way for
Generating, Distribution and Transmission entities. In effect, the State Electricity
Boards were trifurcated into Generating, Distribution and Transmission entities,
while the Board retained its overall control. By Act, 2003, the entire framework
of the electrical supply was revamped and private players were also roped in, in
the generation of electricity.
43. The recovery aspect comes within the bounds of the Distribution and
Transmission entities, as the entire generation of electricity by the private players
is either sent to the grid from where distribution is undertaken. The manner in
which the defaulters should be dealt with, including matters involving theft of
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electricity is provided for u/s 56, which has already been extracted and discussed
above, which provides for laying a suit to recover the charges, which is the very
same provision, which was in existence in the earlier repealed Indian Electricity
Act, 1910.
44. To fulfil the objectives of the Act, Tamil Nadu Electricity Supply Code,
2004 was also enacted, wherein rule 23 (A)(a) of the said Code provided for
recovery of the dues as provided for in the Electricity Act, meaning thereby,
according to the respondent, a reference to Section 56 and resort to Section 6 of
the Recovery Act is impermissible.
45. One of the important highlights of Act, 2003 is making theft of
electricity a penal offence, including criminal prosecution and to achieve the
same, Section 135 to 157 relate to theft of electricity and prosecution thereto.
Section 152 of Act, 2003, provides for compounding of offences by paying a sum
of money as quantified by the Department. Even at this stage, it is to be pointed
out that while the notice calling upon payment of charges was issued by the
Department to the respondent herein, the said notice had also prescribed the
amount that is payable for compounding the offence, as provided u/s 152 and
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the respondent, with a view to come out of the clutches of the penal
consequences, had paid the sum of Rs.2,10,000/-, which quantification was
arrived at on the basis of the theft, alleged and assessed by the Department,
which formed the basis for calculation of dues in the notice.
46. One of the objects of the Bill which formed the basis for enacting Act,
2003, related to a revenue focus in respect of theft of electricity. Therewith,
penal consequences also stood included in Act, 2003. Act, 2003 comprehensively
dealt with all the factors relating to the generation, distribution and transmission
of electricity in the current day scenario. However, as aforesaid, it also retained
certain aspects of the provisions from the Indian Electricity Act, 1910, which
stood repealed.
47. Section 56 (2) of Act, 2003, which provided for filing of suit for
recovery of the charges has been adverted to by the writ court to hold that
Section 6 of the Recovery Act is repugnant to Section 56. However, two other
provisions of Act, 2003, which have a bearing on the repugnancy have not been
adverted to by the writ court.
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48. The manner in which the inconsistency between the laws made by
Parliament and laws made by the State Legislatures are to be looked into is
provided for under Article 254 of the Constitution and for reference, the same is
extracted hereunder :-
“254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States:
(1) If any provision of a law made by the Legislature of a
State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to any
provision of an existing law with respect to one of the matters
enumerated in the Concurrent List, then, subject to the
provisions of clause (2), the law made by Parliament, whether
passed before or after the law made by the Legislature of such
State, or, as the case may be, the existing law, shall prevail
and the law made by the Legislature of the State shall, to the
extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with
respect to one of the matters enumerated in the Concurrent
List contains any provision repugnant to the provisions of an
earlier law made by Parliament or an existing law with respect
to that matter, then, the law so made by the Legislature of
such State shall, if it has been reserved for the consideration of
the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with respect to
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the same matter including a law adding to, amending, varying
or repealing the law so made by the Legislature of the State.”
49. Clause (1) of Article 254 plainly spells out that where any provision of a
law made by the Legislature of a State is repugnant to any provision of a law
made by Parliament which Parliament is competent to enact, or to any provision
of an existing law with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of clause (2), the law made by
Parliament, whether passed before or after the law made by the Legislature of
such State, or, as the case may be, the existing law, shall prevail and the law
made by the Legislature of the State shall, to the extent of the repugnancy, be
void.
50. From clause (1) of Article 254 it is clear that it is the primacy of the law
made by Parliament which is supreme and any provision of law made by the
State which is not in consonance with the law made by the Parliament with
regard to matters in the Concurrent List, to that extent of repugnancy would be
void.
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51. However, the clause (1) of Article 254 is not without a caveat. Clause
(2) of Article 254 provides that where a law made by the Legislature of a State
with respect to one of the matters enumerated in the Concurrent List contains
any provision repugnant to the provisions of an earlier law made by Parliament
or an existing law with respect to that matter, then, the law so made by the
Legislature of such State shall, if it has been reserved for the consideration of the
President and has received his assent, prevail in that State.
52. Article 254 (2) in clear terms spells out that the repugnancy of the
State law with the law made by Parliament, even if any, would stand weeded out
if the said law has received the assent of the President and in such a situation,
the same would prevail in the said State. Further, it is not only to an earlier law,
but also to any existing law, the State law would not be repugnant if it had
received the assent of the President.
53. In the present case, it is the averment of the parties that the Indian
Electricity Act, 1910 was occupying the field along with Electricity (Supply) Act,
1948 and recovery of charges from defaulters was provided in the form of filing
of suit in the Indian Electricity Act, 1910. Due to the difficulties faced in the
process of recovery of the charges, the Recovery Act had been enacted by the
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State Legislature providing for recovery of the charges as land revenue and since
there was a marked departure from the Central legislation in relation to recovery,
the Recovery Act, to weed out the repugnancy, was placed before the President
for assent, which had since been granted and had come into force on 13.6.1978
and had been in operation till the enactment of Act, 2003.
54. Upon coming into force of Act, 2003 and the repeal of the Indian
Electricity Act, 1910 and Electricity (Supply) Act, 1948, the stand of the
respondent, which has been accepted by the writ court is that, though Act, 2003
and the Indian Electricity Act, 1910 had pari materia provision in Section 56 and
Section 24, the mere pari materia provision will not save Section 6 of the
Recovery Act, as it is inconsistent with Act, 2003 and, therefore, necessarily, it
has to be placed once again before the President for assent and in the absence of
assent, Section 6 is repugnant to Section 56 and, therefore, applying the doctrine
of implied repeal, the Recovery Act would also have to be held as having been
repealed.
55. However, to counter the said stand of the respondent, the appellants
drew the attention of this Court to Section 175 of Act, 2003 which provides that
the provisions of Act, 2003 are only in addition and not in derogation of other
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laws and, therefore, so long as the Recovery Act only provides for an additional
mode of recovery of the charges due from the defaulters, the same cannot be
said to be inconsistent with the Central legislation and, therefore, it cannot be
termed to be repugnant to Act, 2003 and further, Section 175 saves the Recovery
Act from being placed once again to the President for assent.
56. Section 174 of Act, 2003 deals with the overriding effect that Act, 2003
will have over any other law while Section 175 stipulates that the provisions of
Act, 2003 are to be in addition to and not in derogation of other laws. For better
appreciation, the said provisions are quoted hereunder :-
“ 174. (Act to have overriding effect):
Save as otherwise provided in section 173, the provisions of this
Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or
in any instrument having effect by virtue of any law other than this
Act.
175. (Provisions of this Act to be in addition to and not in
derogation of other laws):
The provisions of this Act are in addition to and not in derogation
of any other law for the time being in force.”
57. While Section 174 is a non obstante clause, which provides for the
overriding of the provisions of this Act over any other laws so long as they are
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inconsistent with this Act, Section 175 is a saving provision, which provides that
the provisions of this Act are in addition to and not in derogation of any other law
for the time being in force.
58. Though both the provisions, at first look, seem to be mutually
contradictory, however, a careful perusal of the said provisions would reveal that
it seeks to achieve a broader purpose. While the non obstante provision u/s 174
saves the application of this law from inconsistency and have an overriding effect
over any other laws, the provision u/s 175 seeks to maintain a balance between
the various laws that have been enacted during the subsistence of the Indian
Electricity Act, 1910.
59. The maintenance of balance between the various laws have been
necessitated on account of the fact that the Indian Electricity Act, 1910 had been
in operation for about a century with additions through the Electricity (Supply)
Act, 1948, which was consciously considered by the Parliament while enacting
Act, 2003. Parliament would definitely have been conscious of the fact that
between the enactment of the Indian Electricity Act, 1910 and Act, 2003, many
State enactments to offset the difficulties faced in the implementation of the
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Indian Electricity Act, 1910 would have been passed, such as the present case,
where the Recovery Act had come to be enacted in the year 1978 to overcome
the difficulty in realising the dues/charges due to the Department. The Central
legislation would have definitely taken into consideration the fact that many
other laws would have been enacted by the State Legislatures to plug the
shortfall that would have come to light in the Indian Electricity Act, 1910, which
was also one of the main reason the Indian Electricity Act, 1910 was repealed by
way of Act, 2003, which would be evident from the objects and reasons of Act,
2003.
60. In the above backdrop, though the non obstante clause u/s 174 would
spell out that any inconsistency between Act, 2003 and any other law, Act, 2003
would gain supremacy, however, in the absence of any inconsistency, any other
laws, which provide for certain other measures, which have not been specifically
spelt out in Act, 2003, would have to be considered as additive and not in
derogation to Act, 2003. The vision of the Parliament in bringing both Sections
174 and 175 would spell out the clear intention in saving many of the laws, which
have been enacted in the interregnum between the enactment of the Indian
Electricity Act, 1910 and Act, 2003.
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61. Further, the ratio laid down by the Constitution Bench in Karunanidhi
case (supra) squarely applies in all fours to the present case, as the Central
legislation, which is the dominant legislation, has, in unequivocable terms
expressed the intention that the provisions of the Central legislation would be "in
addition to and not in derogation of any other law for the time being in force"
which manifestly includes the State Acts as well, thereby, the Presidential assent
obtained for the Recovery Act, as early as on 13.6.1978, when the Indian
Electricity Act, 1910, was in force, would equally flow to the new legislation, viz.,
Act, 2003, and there would arise no necessity to obtain a fresh assent for the very
same legislation, which has already been assented to by the President for the
very same pari materia provision. Therefore, the decision relied on by the
respondent in Pt.Rishikesh case (supra) would not be of any help to canvass the
plea of non-obtainment of fresh presidential assent.
62. One other aspect which has been canvassed on behalf of the
respondent is the implied repeal of the Recovery Act on account of its
inconsistency with the Central legislation, viz., Act, 2003. Though this Court in
the preceding paragraph has held that there is no inconsistency between Act,
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2003 and the provisions of the Recovery Act, the issue of implied repeal of the
Recovery Act also cannot be sustained. In this regard, useful reference can be
had to the decision of the Apex Court in Ratan Lal Adukia & Anr. – Vs - Union of
India (1989 (3) SCC 537), wherein the Supreme Court held thus :-
“11. The contention emphasised is that where a statute
merely recognises a right pre-existing in common-law and
provides a remedy, such a remedy, unless the statute expressly
bans or excludes other remedies, could only be an additional or
concurrent one open to an election. It is true that where a
statute does not itself bring into being a new right not a pre-
existing right and also provides a remedy therefore so however
that the right and the remedy cannot be said to have been
brought into existence for the first time uno-flatu, such a
remedy would not generally be held to be exclusive but only an
additional and concurrent one, along with the pre-existing
remedies, unless there are express indications to the contrary in
the statute itself. In Municipal Council, Palai v. T.J. Joseph,
[1964] 2 SCR 87 , this Court considered the tests of repugnancy
applied under Article 254(2) of the Constitution, relevant in the
examination of circumstances bringing about an implied repeal.
Strictly speaking the examination of the question whether an
act of Parliament prevails against the law enacted by a State
under Article 254, does not really involve any question of
repeal. In Zaver Bhai Amaidas v. State of Bombay, AIR 1954 SC
752 this Court applied the test conversely, of the principle of
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implied repeal to cases of repugnancy under Article 254(2). It
was observed:
"It is true, as already pointed out, that on a question under
Art. 25(1) whether an Act of Parliament prevails against a law
of the State, no question of repeal arises, but the principle on
which the rule of implied repeal rests, namely, that if the
subject-matter of the later legislation is identical with that of
the earlier, so that they cannot both stand together, then the
earlier is repealed by the later enactment, will be equally
applicable to a question trader Art. 254(2) where the further
legislation by Parliament is in respect of the same matter as
that of the State law."
The doctrine of implied repeal is based on the postulate that
the legislature which is presumed to know the existing state of
the law did not intend to create any confusion by retaining
conflicting provisions. Courts, in applying this doctrine, are
supposed merely to give effect to the legislative intent by
examining the object and scope of the two enactments. But in a
conceivable case, the very existence of two provisions may by
itself, and without more, lead to an inference of mutual
irreconcilability if the later set of provisions is by itself a
complete code with respect to the same matter. In such a case
the actual detailed comparison of the two sets of provisions
may not be necessary. It is a matter of legislative intent that the
two sets of provisions were not expected to be applied
simultaneously. Section 80 is a special provision. It deals with
certain class of suits distinguishable on the basis of their
particular subject-matters. The High Court has come to the
conclusion that new Section 80 made a conscious departure on
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the law as to the place of suing in respect of suits of a particular
subject- matter envisaged by that Section. The High Court has
held that the new Section 80 is a self-contained provision in
regard to the choice of fora for such suits. According to the High
Court, there was no need for the legislature to specify the
places of suing which would otherwise be covered by Section 20
C.P.C. unless the special prescription as to places of suing was
considered to be necessary in derogation to the general law as
contained in Sec. 20 CPC or the provisions in the Small cause
Courts Act. As to the words "may be instituted" occurring in
that Section, the High Court observed:
"The use of the expression 'may be instituted' in Section 80
of the Railways Act was equivalent to 'shall be instituted'.
Section 80 conferred right to institute suits for compensation
against the Railways for breach of their obligations for carrying
passengers, animals or goods specified in Chapter VII of the
Indian Railways Act. Both the obligation on the part of the
Railways and the right of the consignor and the consignee to
institute suits are now statutory in their nature. The clear
intendment of the Legislature was that it would be obligatory
for the plaintiffs to institute suits only in the Courts mentioned
in Section 80 of the Railways Act for enforcement of the claims
for compensation against the Railways.”
(Emphasis Supplied)
63. Once when the Central legislation has, in unequivocable terms,
expressed the intention that the provisions of the Central legislation would be "in
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addition to and not in derogation of any other law for the time being in force"
which manifestly includes the State Acts as well, then the question of implied
repeal advanced by the respondent would not survive. Further, only when there
is a manifest confusion between the Central legislation and the State legislation
and in the absence of Presidential assent for the State legislation, the question of
implied repeal would not survive.
64. One crucial aspect which requires consideration is the view of the writ
court that to realise the charges due, the Department has to file only a suit and
any recovery through the Recovery Act by way of land revenue is inconsistent
with Act, 2003 as Act, 2003 recognises only the filing of the suit and any other
mode of recovery, unlike Section 6 of the Recovery Act, is repugnant to Section
56 of Act, 2003. Therefore, the issue that requires the determination of this
Court is whether it is really the Department, which is to file a suit for recovery of
the said sum as is claimed to have been mandated u/s 24 of the Indian Electricity
Act, 1910 and u/s 56 of Act, 2003, which are quoted hereunder:-
Electricity Act, 2003 (New Act) Indian Electricity Act, 1910 (Old Act)
Section 56. (Disconnection of supply in
default of payment):
24. Discontinuance of supply to consumer
neglecting to pay charge .-
(1) Where any person neglects to pay any
charge for electricity or any sum other than a
(1) Where any person neglects to pay any
charge for energy or any [sum, other than a
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charge for electricity due from him to a
licensee or the generating company in respect
of supply, transmission or distribution or
wheeling of electricity to him, the licensee or
the generating company may, after giving not
less than fifteen clear days’ notice in writing,
to such person and without prejudice to his
rights to recover such charge or other sum by
suit, cut off the supply of electricity and for
that purpose cut or disconnect any electric
supply line or other works being the property
of such licensee or the generating company
through which electricity may have been
supplied, transmitted, distributed or wheeled
and may discontinue the supply until such
charge or other sum, together with any
expenses incurred by him in cutting off and
reconnecting the supply, are paid, but no
longer:
Provided that the supply of electricity shall
not be cut off if such person deposits, under
protest, -
charge for energy,] [ Substituted by Act 1 of
1922, Section 10, for " other sum" .] due from
him to a licensee in respect of the supply of
energy to him, the licensee may, after giving
not less than seven clear days' notice in writing
to such person and without prejudice to his
right to recover such charge or other sum by
suit, cut off the supply and for that purpose cut
or disconnect any electric supply-line or other
works, being the property of the licensee,
through which energy may be supplied, and
may discontinue the supply until such charge
or other sum, together with any expenses
incurred by him in cutting off and reconnecting
the supply, are paid, but no longer.
(a) an amount equal to the sum
claimed from him, or
b) the electricity charges due from
him for each month calculated on the
basis of average charge for electricity
paid by him during the preceding six
months, whichever is less, pending
disposal of any dispute between him
and the licensee.
(2) Notwithstanding anything contained in any
other law for the time being in force, no sum
due from any consumer, under this section
shall be recoverable after the period of two
years from the date when such sum became
first due unless such sum has been shown
continuously as recoverable as arrear of
charges for electricity supplied and the
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licensee shall not cut off the supply of the
electricity.
65. A careful perusal of both the pari materia provisions reveal that where
“ the licensee or the generating company may, after giving not less than fifteen
clear days’ notice in writing, to such person and without prejudice to his rights to
recover such charge or other sum by suit, cut off the supply of electricity and for
that purpose cut or disconnect any electric supply line or other works being the
property of such licensee or the generating company”. The carefully worded
provision, both in the Indian Electricity Act, 1910 and in Act, 2003 reveals that for
the purpose of realising the sum, a mandate has been cast on the licensee or the
generating company to give clear seven days notice in writing to such person to
pay the said sum, failing which the generating company/licensee can disconnect
the electrical supply beyond which no other remedy has been given u/s 56 of Act,
2003 or u/s 24 of the Indian Electricity Act for the Department to recover the said
sum. However, for the purpose of recovering such charges or other sum, which
has been charged and which has been paid by the defaulter on notice, may be
under protest, it is only the defaulter, who is provided with a remedy to file a suit
for recovery of the said sums. This would be evident from the fact that by the
use of the phrase “ and without prejudice to his rights to recover such charge or
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other sum by suit “ the Parliament has specifically conjuncted the action which
could be taken by the licensee/generating company as also the defaulter, which
is evident from the usage of the word “his rights” which clearly signify the rights,
which are enjoyed by the consumers. There is no specification either u/s 24 or
u/s 56 mandating the Department to file only a suit to recover the dues and not
through any other manner and if really the intent of the Parliament was to have
put a condition on the Department to file a suit to recover the amount, the word
“ his rights ” would not have been used as there would be no prejudice of rights of
the Department in any scenario. This would reveal the intention and mind of the
Parliament with regard to recovery of the amount which has been left to the
discretion of the respective State Legislatures to take appropriate steps for
creating the necessary framework for recovering the amount.
66. The above assumes more significance in view of the fact that Section
175 of Act, 2003 clearly provides that the provisions of this Act are in addition to
and not in derogation of any other law for the time being in force. The clear
intent of the Parliament is revealed by the fact that for the purpose of recovery,
the respective States could frame the necessary laws and such laws, which have
been enacted by the said States would be an inclusion/addition to Act, 2003
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which would alone not jeopardize the rights of the Department. However, at the
same time, the defaulter has also been provided with an avenue to file a suit to
recover such charge or any other sums by resorting to a suit, which definitely
provides the defaulter with an opportunity to establish, through trial, that there
exists no liability on his part to pay the amount as he would be provided with all
opportunity to lead evidence and establish his case.
67. It is to be pointed out that repugnancy would arise only when there is
a semblance of inconsistency between the Central Act and the State Act. In the
present scheme of the provisions, when the Central Act, viz., Act, 2003, has not
provided any mode for recovery by the Department and such recovery mode has
been provided only to the alleged defaulter to file a suit, the State, in public
interest, has enacted the Recovery Act providing for recovery of such charges
which are due and payable by a person. When Act, 2003, has not provided any
manner for recovery of the amount by the department, the recovery mode,
which is provided u/s 6 of the Recovery Act cannot be said to be repugnant to
Section 56 of Act, 2003, as there is no inconsistency between Section 56 of Act,
2003 and Section 6 of the Recovery Act, 1978.
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68. It is to be pointed out, at the risk of repetition, that even Section 24 of
the Indian Electricity Act, 1910, a pari materia provision to Section 56 of Act,
2003, was erroneously construed by the State resulting in the objects and
reasons of the Recovery Act spelling out that the Recovery Act had been enacted
providing for the mode of recovery by pointing out that the cumbersome process
of going through the filing of suit and the timelines that it would take to realise
the amount, which causes great difficulties to the exchequer. However, as stated
above, even the Indian Electricity Act, 1910, did not mandate filing of a suit by
the department for recovery of the charges from the defaulter and even thereto,
only the person, who is prejudiced by the said notice calling upon him to pay the
sum quantified, has been provided with an avenue of filing a suit to recover the
amount, if the person has paid the said sum apprehending disconnection of
electricity, which has been carried on to Act, 2003. Therefore, the interpretation
of the provision to mean that the hands of the department was scuffled and the
recovery of the amounts could be recovered only by filing a suit, is a wrong
assumption of the State while enacting the Recovery Act, as no such mandate for
filing a suit by the department has been provided either under the Indian
Electricity Act, 1910 or under Act, 2003.
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69. When there is no mode specified under Act, 2003 for recovery of the
charges due to the Department from the alleged defaulter, any mode prescribed
under the Recovery Act cannot be said to be repugnant to the provisions of Act,
2003, when there is no inconsistency between Act, 2003 and the Recovery Act.
At best, the Recovery Act could be termed to be a provision which fills up the
lacunae under Act, 2003 insofar as recovery is concerned by providing the
manner in which recovery could be undertaken by the Department.
70. Issue of repugnancy will arise only when there is inconsistency
between the Central and State legislation on a particular aspect. However, where
the Central legislation is silent on the mode of recovery of charges from the
defaulter insofar as the Department is concerned, the stepping in by the State to
legislate on the same and providing for a mode of recovery is only to fill up the
lacunae left by the Central legislation in Act, 2003 which could be meted out by
the State on the basis of its prevailing laws and if such lacunae is filled up the
State, the said inclusion would only partake the character of addition, which has
been specifically provided u/s 175 of Act, 2003 and, therefore, not only would
there be no repugnancy, but the concept of repugnancy would not even creep in.
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71. A provision of law could be tested for repugnancy only when two
enactments, one being a Central legislation and the other being a State legislation
cover the same field with the Central legislation having a march over the State
legislation. However, when the Central legislation has not provided for any
mechanism on the department with respect to recovery and the State, for the
purpose of realising the amounts from the defaulters, had enacted a law, the
State enactment is a stand-alone enactment, which does not lean on the Central
legislation for the purpose of testing the repugnancy; rather the leaning on the
Central legislation is only for the purpose of achieving the objectives of the
Central legislation without detriment to the exchequer. The decision in Ratan Lal
case (supra) squarely sails with the view expressed by this Court above and gives
the stamp of approval for the aforesaid view.
72. In the present case, the Recovery Act, by no stretch of imagination,
could be said to lean on Act, 2003 for the purpose of recovery or for that matter,
its predecessor, the Indian Electricity Act, 1910, as both do not provide for any
specific mechanism for recovering the amounts due from the defaulters, the
Recovery Act had been enacted way back in the year 1978 for safeguarding the
interest of the exchequer.
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73. The above view of this Court is strengthened by the later portion of
Section 56 of Act, 2003, which further provides to “ cut off the supply of electricity
and for that purpose cut or disconnect any electric supply line or other works
being the property of such licensee or the generating company through which
electricity may have been supplied, transmitted, distributed or wheeled and may
discontinue the supply until such charge or other sum, together with any
expenses incurred by him in cutting off and reconnecting the supply, are paid ....”.
The latter portion of Act, 2003 would clearly spell out that reconnection would be
provided by the licensee only if the charges or other sum together with any
expenses incurred are paid. If really the intention of the Parliament was to
provide suit only as the mode of recovery, the question of reconnection cannot
be subjected to the payment of the charges and any other sum, as the said
portion of the Section casts a condition on the defaulter to pay the said amounts,
which alone would form the basis for seeking reconnection.
74. Though in the later portion of Section 24 as well as Section 56, it has
been provided that ‘may discontinue the supply until such change or other sum,
together with any expenses incurred by him in cutting off and reconnecting the
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supply, are paid” , wherein there is a conspicuous use of the word “by him” a
careful and disjuncted reading of the entire section would clearly reveal that
what is sought to be projected by the Parliament by the use of the word “by him”
is to portray the incurred for him, which has to be read as “for him” , which alone
would achieve the object of the respective Acts. The aforesaid interpretation
alone would satisfy the entire structure of the provision, as expenses towards
disconnection or reconnection of electricity is done by the Department for the
benefit of the individual and the expenses therefore would be incurred only by
the Department. Adopting the theory of purposive interpretation, the word “by
him” as found in the latter portion of Section 56 as also Section 24 would only
have to be read as “for him” as that alone would satisfy not only the framework
of the Acts, but also the intention of the Parliament. Therefore, the use of the
word “by” in the latter portion of the Acts would have to be read as “for” to
achieve the purpose for which the provision has been made. The manner in
which a word in a provision has to be interpreted so as to achieve the purposes
of the Act has been spelt out by the Constitution Bench in Indore Development
Authority – Vs – Manoharlal & Ors. (AIR 2020 SC 1496) , which supports the view
of this Court in reading the word “by” as “for” .
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75. Though by the said Recovery Act, the Board has been vested with the
powers to do all the things that are mandated under the Recovery Act, however,
on and from the coming into force of Act, 2003, the operation of electricity
having been decentralised under various heads such as generation, distribution,
transmission, etc., and the activities of the three entities are vested in the
Department by divesting the responsibilities of the above nature from the
Electricity Board, the term Board as spelt out in the Recovery Act could only
mean the Electricity Department under which the Electricity Board functions and
in that backdrop, if the Electricity Board had issued the notice, the said notice
cannot be said to be without authority, as the Recovery Act empowers the
Electricity Board to collect the dues as arrears of land revenue u/s 6 of the
Recovery Act. Further, it is the specific case of the appellants that all the shares
of the Generation, Distribution and Transmission entities are vested in the Board
and it is the Board, which has overall control over the decentralised arms in
electricity generation.
76. In view of the above, this Court is of the considered view that Section 6
of the Recovery Act is not repugnant to Section 56 (1) of Act, 2003, as the
inconsistency, which is pointed out between the two statutes, as held by the writ
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court, is on a misreading of Section 56 of Act, 2003 and for the above reason, this
Court has no hesitation to hold that Section 6 of the Recovery Act is not
repugnant to Section 56 of Act, 2003.
77. Coming to the facts of the present case, the provisional assessment as
also the final assessment have been made under the provisions of the Recovery
Act and in fact, in the said assessment, by invoking the provisions of Section 135
of Act, 2003, relating to penal consequences, the compounding charges have
been specified so as to enable the respondent to compound the offence and the
respondent has compounded the offence by paying the said amount. The
balance amount, which has been quantified way back in the year 2007, it yet to
be paid, though, it is informed across the Bar that electrical supply has been
disconnected, but for the writ petition, the amount, which is sought to be
recovered through the said notice is yet to be paid.
78. This Court has already held that Act, 2003, does not specify the
manner in which recovery of amount due to the Department has to be made and
only to offset the said lacuna, which was in existence even in the Indian Electricity
Act, 1910, the Recovery Act had been enacted by the State providing for
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recovering the said amount as land revenue. The provision for recovery u/s 6 of
the Recovery Act having been held to be not repugnant to Section 56 of Act,
2003, which is pari materia to Section 24 of the Indian Electricity Act, 1910,
necessarily, no assent of the President was required even when the Indian
Electricity Act, 1910 was in subsistence to overcome the repugnancy and the
assent of the Governor alone was sufficient. However, Presidential assent was
taken and the Recovery Act had come into force on 13.6.1978.
79. Once Presidential assent had been taken for the Recovery Act even
though the provisions of the Recovery Act were not repugnant to the Indian
Electricity Act, no fresh assent is required to be taken from the President for the
continuance of the Recovery Act on and from the coming into force of Act, 2003.
Therefore, the notice issued u/s 6 of the Recovery Act calling upon the
respondent to pay the charges towards the theft of electricity cannot be said to
be an act beyond the competence of the Act, but one that is duly approved by
law. Therefore, this Court holds that the appellant is empowered to follow the
course of law to collect the charges due to the theft of electricity from the
respondent, moreso, considering the fact that the respondent, accepting his guilt,
had paid the compounding charges as quantified in the notice and the appellants
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have also compounded the offence by dropping penal action against the
respondent. Therefore, the act of the respondent in accepting his guilt and
compounding the offence would act as a bar for the respondent from proceeding
to agitate his rights by invoking the leverage given to him u/s 56 to file a suit.
80. In such view of the matter, this Court is of the considered view that
there is no embargo on the appellants from proceeding further to collect the
charges due from the respondent by invoking the provisions of the Recovery Act
as also the Tamil Nadu Electricity Supply code, 2004.
81. For the reasons aforesaid, this writ appeal is allowed with the following
observations and directions :-
i) The impugned order passed by the learned single Judge is set
aside;
ii) This Court holds that Section 6 of the Recovery Act is not
repugnant to Section 56 of Act, 2003;
iii) This Court further holds that the Department, for the purpose
of collecting the charges due and payable by the
defaulter, need not resort to filing of a suit, but could
resort to the provisions of the Recovery Act and the Tamil
Nadu Electricity Supply Code, 2004 to collect the said
dues;
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iv) The notice issued by the appellants against the respondent is
revived and the respondent herein is directed to pay the
amount, as quantified in the notice, without any charges
and interest as provided in the BPC within a period of four
weeks from the date of receipt of a copy of this order;
v) If the respondent fails to pay the amount demanded in the
notice within the time stipulated by this Court above, it is
open to the appellants to resort to collection of the said
amount from the respondent in accordance with law by
invoking the provisions of the Recovery Act and the Tamil
Nadu Electricity Supply Code, 2004.
vi)
Consequently, connected miscellaneous petition is closed.
There shall be no order as to costs in this appeal.
.
(M.D.I.J.) (N.D.K.J.)
30.10.2026
Index : Yes / No
GLN
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To
1. The Executive Engineer
Operation & Maintenance
Tamil Nadu Electricity Board
Karur Electricity Distribution Circle
Karur.
2. The Assistant Accounts Officer
Office of the Executive Engineer
Tamil Nadu Electricity Board
Revenue Branch / Urban
Karur, Karur District.
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M.DHANDAPANI, J.
AND
N.DILIPKUMAR, J.
GLN
PRE-DELIVERY JUDGMENT IN
W.A. (MD) NO.1698 OF 2019
Pronounced on
30.10.2026
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