THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.14787 of 2010 Dated 15th March, 2011 Between: M/s.Survya Waters …Petitioner And A.P.Eastern Power Distribution Co.Limited, Near Gurudwar, P & T Colony, Sithammadhara, Visakhapatnam, rep.by its Chairman and Managing Director and others …Respondents Counsel for the petitioner: Sri K.Raghuveer Reddy Counsel for Respondents: Sri Krupachand Gogineni For Smt.Jyothi Eswar Gogineni The Court made the following: ORDER: At the interlocutory stage, the writ petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. This writ petition is filed for a mandamus to set aside notice, dated 15.09.2009, of respondent No.3, whereby he has levied a sum of Rs.1,09,158/- towards capacitor surcharge. I have heard the learned counsel for the petitioner, the learned Standing Counsel for the respondents and perused the record. The impugned proceeding is questioned by the petitioner mainly on the ground that the same is in violation of Condition No.12.1.2 of the terms and conditions of supply applicable to respondent No.1. The said condition reads as under: “12.1.2 Procedure for LT Consumers If the capacitors already installed are found, during inspection of the Premises of an LT consumer, damaged or become defective or cease to function or derated, the consumer shall be served with a notice by the Designated Officer to get the same replaced/rectified or corrected within 30 days from the date of the notice in accordance with the format prescribed in Appendix VIII(A) herein, and intimate the fact of replacement/rectification or correction to the Designated Officer of the Company who will inspect the capacitors again to verify their satisfactory performance. In the event of failure on the part of the consumer to comply with the above notice, the company may levy a surcharge as specified by the Commission in the Tariff Orders issued from time to time or otherwise from the consumption month of the date of inspection till such time the capacitor is replaced/rectified or corrected. Provided further that retrospective levy if any of surcharge shall not extend to beyond one year prior to the date of inspection. The consumer aggrieved by the retrospective levy, may appeal to the authority/officer designated for this purpose in the ‘Designated Officers’ Notification’ whose decision shall be final.” It is the pleaded case of the petitioner that before the impugned notice has been given, notice as envisaged under the above re-produced condition, has not been given. The learned counsel for the petitioner emphasised that it is only after the petitioner fails to comply with the demand made in the notice contemplated under Condition No.12.1.2 that the respondents can levy the capacitor surcharge. Neither a perusal of the impugned notice nor the contents of the counter affidavit would show that such a prior notice was given. Therefore, the impugned proceedings are vitiated by the procedural illegality. Accordingly, the impugned notice is set aside. The respondents are, however, given liberty to issue notice under Condition No.12.1.2 before taking action against the petitioner. The amount stated to have been deposited by the petitioner in pursuance of the interim order, dated 28.06.2010, shall be adjusted against the future consumption charges. Subject to the above directions, the writ petition is allowed. As a sequel to disposal of the writ petition, the interim order, dated 28.06.2010, granted by this Court, in W.P.M.P.No.18631 of 2010, shall stand vacated, and W.P.M.P.No.18631 of 2010 and W.V.M.P.No.5301 of 2010 are disposed of as infructuous. C.V.NAGARJUNA REDDY, J 15th March, 2011 VGB