IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SEVENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 9405 of 2004 Between: S.P.SHANKAR RAO S/o.Rachappa Kotagiri Village and Mandal Nizamabad Dist ..... PETITIONER AND 1 The Superintending Engineer (Assessments) N.P.D.C.L.Warangal 2 The Asst. Divisional Engineer (Elec) Operation, N.P.D.C. of A.P.Ltd Bodhan .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more one in the nature of writ of mandamus declaring the final assessment order No.SE/A/WGL/C.NZB/TE/F70/D.NO.760/01 DT.30/07/2001 passed by the respondents and confirmed in Appeal in proceedings No.CGM/(P&O)/NPDCL/WGL/PE/MIS CELL/D.No.154/04, Dt.1/4/04 as arbitrary, illegal and in violation of principles of natural justice and pleased to pass any such further order. Counsel for the Petitioner:MR.VIJAY KUMAR HEROOR Counsel for the Respondent No.: MR.V.AJAY KUMAR (SC FOR AP TRANSCO) The Court made the following : THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION No.9405 of 2004 ORDER: The petitioner established a flourmill in Kotagiri Village and Mandal of Nizamabad District and it was provided with power supply through S.C.No.261, under Category-III. The petitioner states that the power supply was disconnected prior to 1998 and that the mill itself was closed. The officials of the Northern Power Distribution Company Limited visited the premises of the petitioner on 01.08.2000. It was noticed that a small whole existed on the glass of the meter and it was possible to put a thin wire or stick in it to stop the meter disk. Suspecting pilferage on the part of the petitioner, a notice of provisional assessment was issued on 12.08.2000, indicating that the petitioner is liable to pay a sum of Rs.79,185/-, representing the difference of consumption charges, for the period from June, 1998 to May 1999. This was followed a show cause notice, dated 06.11.2000, by the first respondent. The petitioner states that he received show cause notice and order of provisional assessment only on 04.04.2001 and submitted explanation on 16.04.2001. The first respondent passed an order of final assessment on 30.07.2001. It was mentioned that the petitioner did not submit explanation, even after receiving the show cause notice and the final order was passed in terms of the order of provisional assessment. The petitioner preferred an appeal to the Chief Engineer of the Company and the appeal was dismissed on 01.04.2004. Hence, this Writ Petition. The petitioner contends that when the power supply was disconnected in the year 1998 itself, the question of his being assessed for subsequent period, even in the context of alleged pilferage, does not arise. The respondents filed counter-affidavit denying the allegations of the petitioner. It is stated that the acts, leading to pilferage resorted to by the petitioner, were noticed on 01.08.2000 and by following the procedure prescribed by law, the order of provisional assessment and thereafter, final assessment was passed. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. Even from a perusal of the order of provisional assessment, it is clear that the power supply was disconnected to the service. The exact date of the disconnection is not clear. The allegation of the petitioner that it was disconnected in the year 1998 itself, remains un- rebutted. There is a discrepancy as to the period for which the assessment was made. While in the order of provisional assessment one-year period was mentioned from June, 1998 to May 1999, in the show cause notice it was mentioned as 31.07.1999 to 01.08.2000. The obligation of a consumer to pay any amount assessed towards pilferage or malpractice would arise, only for the period during which the power supply was on. The question of demanding such charges for a period during which the power supply was disconnected, does not arise. Therefore, much would depend upon the exact date on which the supply to the petitioner was disconnected. None of the authorities, who dealt with the proceedings at various stages, have bestowed their attention to this aspect. On this short ground, the Writ Petition is allowed and the order of final assessment, as upheld by the appellate authority, is set aside. It is, however, directed that in case the power supply to the petitioner was disconnected before 31.07.1999, no further proceedings shall be initiated against the petitioner. On the other hand, if it is subsequent to that date, it shall be open to the respondents to issue a revised notice for the corresponding period. There shall be no order as to costs. _______________________ Dt.27.11.2008 L.NARASIMHA REDDY, J GJ