THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.18792 OF 2006 DATED 13th SEPTEMBER, 2006 BETWEEN Keta Veera Venkata Satyanarayana and another … Petitioners and The A.P.Eastern Power Distribution Company Limited, Visakhapatnam rep. by its Assistant Divisional Engineer, Operation, Sub Division, Ramachandrapuram (PO), East Godavari District. … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.18792 OF 2006 ORDER: The second petitioner herein was owner of M/s.Nagalakshmi Rice Mill, a proprietary concern. He was availing electricity supply under S.C.No.4218 (LT category III) for the flour mill situated at Ramachandrapuram, East Godavari District. In a family arrangement, statedly the first petitioner became owner and was allegedly paying the current consumption charges regularly. On 08.12.2005, the Assistant Divisional Engineer (DPE-II), Rajahmundry inspected the rice mill, tested the meter and equipment and found that meter box cover seals were tampered and that the seal bits are coming out easily, besides other incriminating circumstances. Therefore, the Inspecting Officer came to the conclusion that the second petitioner is guilty of pilferage and accordingly served provisional assessment order, dated 24.12.2005, informing the value of energy pilfered at Rs.1,18,170/- and also informed that the consumer can compound the contravention by paying a sum of Rs.22,000/-. It was also informed that if the value of the pilfered energy and compounding fee is paid, no proceedings will be initiated/continued against him. Pursuant to the said provisional assessment order/notice, the second petitioner submitted explanation to the second respondent, who by impugned order, dated 28.06.2006, confirmed that the consumer pilfered energy and is liable to compensate the loss sustained by the respondents and an amount of value of the pilfered energy at Rs.1,18,370/- was also confirmed. The second petitioner was also informed that against the final order of the second respondent, an appeal would lie to the appellate authority as prescribed in appropriate orders. The second petitioner alleges that if he filed a representation before the third respondent requesting to furnish the details of appellate authority and information whether or not the appellate authority duly constituted, in vain. He therefore filed the instant writ petition challenging the proceedings of the second respondent. Learned counsel for the petitioners submits that when theft of energy is alleged, it is only the Special Court constituted under Section 153 of the Electricity Act, 2003, (the Act, for brevity), which is competent to try the offence of theft of electricity energy under Section 135 of the Act. He would urge that second respondent has no jurisdiction or competence to issue show cause notice or the final assessment order in the case of theft/pilferage of energy by the consumer. Per contra, learned standing counsel for A.P.Eastern Power Distribution Company Limited (APEPDCL) submits that in the case of LT connections, Assistant Divisional Engineer (ADE) is constituted as Inspecting Officer and whenever there is an allegation of unauthorized use of electricity, the Superintending Engineer as assessing officer can pass final assessment order determining the value of the pilfered energy. He also submits that usage of electricity inter alia by means not authorized by the distribution licensee or by tampering the meter, is also amounts to theft and therefore, the procedure contemplated under Section 126 of the Act can be adopted by the respondents. The submission of the learned counsel that the second respondent has no authority in case of theft to assess the value of the energy pilfered cannot be accepted. Sub-sections (1) to (3) of Section 126 of the Act and Explanation (b) thereof read as under. 126. Assessment:- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. (3) The person, on whom a notice has been served under sub-section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. Explanation:- For the purpose of this section, - (a) Omitted (b) “unauthorized use of electricity” means the usage of electricity- (i) by any artificial means; or (ii) by a means not authorized by the concerned person or authority or licensee; or (iii) through a tampered meter; or (iv) for the purpose other than for which the usage of electricity was authorized. Further, Section 135(1) of the Act describes theft of electricity in the following terms. 135. Theft of Electricity:- (1) Whoever, dishonestly, - (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or (b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or (c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both: Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use- (i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such thief of electricity; (ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity: Provided further that if it is proved that any artificial means or means not authorised by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. Reading both the provisions together, this Court has no doubt whatsoever that even in the case of theft of energy or usage of electricity through tampered meter or by means not authorised by the licensee[1], it would be competent for the assessing officer to pass final order of assessment of electricity payable by the consumer. This procedure is altogether different from the procedure contemplated in Part XIV of the Act, which deals with ‘Offences and Penalties’. Theft of energy is an offence and also amounts to unauthorized use of electricity and therefore, the assessment of value of the energy pilfered is not barred, merely because the assessing officer or the inspecting officer informs the consumer to pay the compounding charges for the offence of theft. Such an interpretation would render Sections 126 and 127 of the Act otiose and has to be avoided. The second petitioner has already made a representation to the third respondent and he can raise all the grounds regarding the alleged irregularities at the time of inspection and other aspects of the matter being the questions of fact, they cannot be gone into in this writ petition. The writ petition is devoid of any merit and is accordingly dismissed. No costs. ______________ (V.V.S.RAO,J) 13.09.2006. pln [1] Under Section 2(39) read with Section 14, licensee means any person who has obtained licence to transmit electricity as transmission licensee, or distribute electricity as distribution licensee.