HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.15950 of 2004 Date : 11.08.2009 Between : Bharat Sanchar Nigam Limited, Andhra Pradesh Telecom Circle, rep. by its Chief General Manager & another. …..Petitioners And Government of Andhra Pradesh, rep. by its Principal Secretary, Power and Energy Department, Hyderabad & 6 others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.15950 of 2004 ORDER : The petitioner-Bharat Sanchar Nigam Limited (BSNL), a Government of India Concern, has filed this writ petition, questioning the validity of the order, dated 22nd April 2003, passed by the Divisional Engineer (Operations), A.P.Southern Power Distribution Company Limited (APSPDCL), Macharla, as confirmed by the order, dated 5th May 2004, passed by the Superintending Engineer (Operations), A.P.S.P.D.C.L., Guntur. 2. The petitioner-BSNL is availing electricity power supply from APSPDCL, for consumption in its Microwave Station located at Janapad village near Piduguralla of Guntur District, vide Service Connection No.931, with a contracted load of 41.20 HP. The said service connection of petitioners was inspected by the ADE/DPE-I/Guntur on 12th December 2002. During the inspection, it was noticed that the petitioner-Company was being charged for consumption of electricity under Category-III tariff, instead of Category-II, as it was consuming power to its Microwave Station. Accordingly, the Assistant Divisional Engineer (Operations), Piduguralla, has initiated proceedings for assessing the loss, and provisionally, a notice, dated 26th December 2002 was issued, arriving at the loss of energy at Rs.6,90,974/-. The said notice is stated to have been received by the petitioners on 26th of December 2002. On the ground that inspite of such notice the petitioners did not file their objections, the provisional assessment order passed by the Assistant Divisional Engineer was confirmed by the Divisional Engineer (Operations). In the confirmation orders passed by the Divisional Engineer, it is stated that the petitioner- Company has not submitted any representation in response to the show cause notice issued by the Assistant Divisional Engineer, and on the premise that the petitioners have got no grounds to oppose such provisional assessment, accepted the provisional assessment made by the Assistant Divisional Engineer. As against the order of Divisional Engineer, the petitioners have carried the matter by way of appeal as provided in the Terms and Conditions of Supply, framed under Section 49 of the Electricity Supply Act, 1948, before the Superintending Engineer (Operations), APSPDCL, Guntur. In the grounds of appeal, the petitioners have raised five grounds, which read as under : 1. “The Assistant Divisional Engineer, Operation, Piduguralla has issued a demand notice, but not a show cause notice and also not mentioned the due date for filing of reply or to prefer a representation regarding issue. 2. The Divisional Engineer, Operation, opined that no representation is made by the consumer with reference to the show cause notice and issued the exparte proceedings by conferring the heavy payment. 3. As per law of limitation, it is clearly noted that any claim beyond the period of 3 years is not tenable and the payment claimed from 1994 onwards at this stage is not sustainable. The initial categorization was done by the electrical authorities only, they have categorized under LT-III only instead of LT-II and payments were made by this office. 4. Fifty percent of charges Rs.3,45,487/- as per the proceedings of the Divisional Engineer, Operation, Macherla is being paid through a DD in favour of AA/ERO/Sattenapalli. 5. Requested to reexamine the case and to reduce the charges for the period of 3 years only as per the law of limitation, i.e. for the period from 1994 to 2003 at this stage is not sustainable and has no legal sanctity”. 3. The appellate authority, by an order dated 5th of May 2004, by recording a finding that the petitioner- consumer was not able to make any representation in response to the show cause notice issued by the Assistant Divisional Engineer, confirmed the order passed by the Divisional Engineer. Hence, the present writ petition by the petitioner-Company. 4. In this writ petition, it is argued by Sri R.S.Murthy, learned counsel appearing for petitioners that the petitioner-Company was correctly categorized under LT Category-III at first instance, however, pursuant to the inspection made on 12.12.2002, on the ground that the petitioners were to be categorized under Category-II, demand is made by assessing the loss of energy, without giving any opportunity or show cause notice. It is further submitted that if the consumer is billed under a particular category, and if it is to be revised, unless an opportunity is given by way of show cause notice, respondents are not empowered to change the category unilaterally and make demand for the alleged loss of energy. Lastly, it is submitted that in any event, there is no power vested with the respondents to recover the arrears, which are due for the last more than three years. 5. On the other hand, it is submitted by Sri O.Manohar Reddy, learned Standing Counsel appearing for the respondents, that re-classification of category and consequential demand by revision of bills, is in accordance with the terms and conditions of supply. It is submitted that Condition No.35 of the Terms and Conditions of Supply empowers the respondents to make such exercise. It is submitted that as much as the petitioner-Company is using electricity for its Microwave Station, the consumption was to be billed under LT Category-II, but not under LT Category-III, therefore, the re-classification is being made and consequential demand notice is issued. 6. I have perused the grounds of appeal raised in the Memo filed by the petitioner-Company before the appellate authority. In one of the grounds, a specific ground is raised to the effect that no notice or opportunity was given to the petitioners by the Divisional Engineer, before confirming the provisional assessment made by the Assistant Divisional Engineer. When the matter has come up on last occasion, it was adjourned to enable the learned Standing Counsel appearing for respondents, to place on record a copy of the notice dated 26.12.2002, which is issued to the petitioner-Company by the Assistant Divisional Engineer, while making the provisional assessment. When the matter is taken up today, the learned Standing Counsel appearing for respondents has placed on record, a copy of such notice, which read as under : “On 12.02.2002, your service connection No.931 Cat.III was inspected by Sri S.T.Sundar Rao, ADE/DPE-I/GNT. It was then noticed that the supply is being used for Microwave Station of BSNL which supply falls under LT.Cat II. But, it is observed that the consumption of service is being billed under Cat.III tariffs. Hence, shortfalls of billing is made duly re-categorizing the service from LT. Cat III to LT. Cat II from the date of release of services”. 7. A perusal of the impugned notice shows that by no stretch of imagination, it can be construed as a show cause notice, as argued by the learned Standing Counsel appearing for respondents. In the said notice, it is merely stated that pursuant to the inspection of the service connection of the petitioners, it was re-categorized and the demand is made for the shortfall amount payable by the petitioner-Company. Even the appellate authority, inspite of raising such a ground, without recording any finding on the same, merely held that the consumer is not able to make any representation before the primary authority, as such, the revised demand was issued. 8. There is no doubt that as per Condition No.35 of the Terms and Conditions of Supply, respondents are empowered to change the category and revise the bills, but once the bills are issued under one category, and if a change of category is to be made, it can be done only after giving an opportunity to the consumer. The change in the category for the purpose of charging the consumer and revising the bills without any opportunity to the consumer is in gross violation of the principles of natural justice. In that view of the matter, without going into merits of the demand, I am of the opinion that it is a fit case to quash the impugned orders and remand the matter to the primary authority to decide it afresh, by giving opportunity to the petitioners. At this stage, it is brought to the notice of this Court that at the time of filing of appeal before the appellate authority, the petitioners have deposited an amount of Rs.3,45,487/-. In that view of the matter, it is directed that till the matter is reconsidered and appropriate orders are passed, the said amount shall remain with the respondents, and at the same time, no further amount shall be collected from the petitioner-Company. The primary authority i.e. the Divisional Engineer (Operations), shall issue a fresh show cause notice to the petitioner- Company, calling upon to file its objections, if any. After issuing such notice, and upon filing objections within the specified time to be indicated by the respondents, it is open to the respondents to consider the same and pass appropriate final orders. The deposit of Rs.3,45,487/- made by the petitioner-Company shall be subject to the final orders to be passed by the respondents in the matter. 9. Writ petition is allowed to the extent indicated above. No order as to costs. ______________________ R. SUBHASH REDDY, J 11th August 2009 MRR/ajr