IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 27472 of 2003 Between: S.Nagaratnamma, W/o.S.Veeranna, R/o.Plot No.38, Challavari Street, Kurnool. ..... PETITIONER AND 1 The Superintending Engineer, Assessment/APCPDCL, H.No.3-6-184, 4th Floor, St.No.-17, Urdu Hall Lane, Himayathnagar, Hyderabad. 2 The Divisional Engineer, Assessment/APCPDCL, 3-6-184, 4th Floor, Urdu Hall Lane, Himayathnagar, Hyderabad. 3 The Assistant Divisional Engineer, (Distribution), APCPDCL, Kurnool. 4 The Assistant Accounts Officer, E.R.O./Town, Kurnool. 5 The Managing Director, A.P.Transco, Vidyuth Soudha, Hyderabad. .....RESPONDENT(S) 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 to issue a Writ, Order, Direction more in the nature of Writ of Mandamus, Setting-aside the Revised Assessment Order, Assessment Order and Provisional Assessment Orders of the 1st., 2nd and respondents issued in; (i) Lr.No.SEA/HYD/SAP.No.2106/D.No.980/2003, dt.10-10-2003. (ii) Order No.DEA.II/HYD/DAT/597/D.No.655, dt.19-9- 2003, (iii) Lr.No.ADE/D/KNL/SBE/F.No.61/D.No.2264/2003, Dt.23-7- 2003, declare as ilelgal, arbitrary and in villation of provisions of Electricity Act, 2003 and consequently direct the respondents; (i) to refund the amount of Rs.38,284-35 which is excess amount collected by the respondents for unauthorised use of electrical energy and (ii) to direct the respondents to refund the amount of Rs.2,000/- which is collected in excess of compounding fees, as prescribed under Section 152 of the Electricity Act, 2003 (A t 36 of 2003), and to pass Counsel for the Petitioner:MR.J.JANAKIRAMI REDDY Counsel for the Respondent No.: O.MANOHAR REDDY(SC FOR APTRANSCO) The Court made the following : THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO:27472 of 2003 ORAL ORDER: In this writ petition, the petitioner has challenged the orders of the 2nd respondent dated 19.8.2003 as modified by the appellate authority – 1st respondent dated 10.10.2003 directing him to pay a sum of Rs.63,363/-, as the estimated amount of loss sustained by the APCPDCL on account of pilferage of energy plus Rs.50/- towards supervision charges. The petitioner was provided with electricity connection bearing No 60518 in L.T. category-I by the A.P. Central Power Distribution Company Ltd (APCPDCL). The above service connection was inspected by the Asst. Divisional Engineer, APCPDCL on 18.7.2003 and on such inspection he has noticed that there was tapping of energy by tampering the service wire connected to the meter. Based on the inspection notes, a case of pilferage was registered against the petitioner and provisional assessment order was issued assessing the loss sustained by the Department at Rs.1,08,359/-. Subsequently after giving opportunity to the petitioner, final assessment order was passed on 19.8.2003 assessing the loss of energy on account of pilferage at Rs.86,844/- and directing the petitioner to pay the said amount along with supervision and reconnection charges of Rs.100/-. The said orders were passed for the assessment period of 365 days commencing from 18.7.2002 to 18.7.2003. The said assessment was made as per the terms and conditions of supply framed under Section 49 of A.P. Electricity (Supply) Act, 1948. As against the said order dated 19.8.2003, the petitioner preferred appeal before the 1st respondent – Superintending Engineer, APCPDCL. The appellate authority, while confirming the order of the primary authority, has revised the cost of pilferage units at Rs.63,363/-. This writ petition is filed by questioning the order of the primary authority as well as the final order of the appellate authority. In this writ petition mainly the impugned orders are questioned on two grounds. It is contended by the learned counsel for the petitioner that in view of the provision under Section 126(5) of the Electricity Act, 2003, respondents should have confined the assessment period only for a period of three months asmuch as the service connection is domestic category. It is further submitted that though the petitioner has purchased electric motor only in the preceding month to the date of inspection and in spite of taking such objection, the respondents have not considered the same before calculating the loss of energy on account of unauthorized use of electricity. On the other hand, it is submitted by the learned standing counsel appearing for the respondents that in view of the orders issued by the Government in G.O.Ms.No.90, Energy (PR.III) dated 4.8.2003 for dis- application of certain provisions of Electricity Act, 2003, the case of the petitioner is covered by terms and conditions of supply framed under the Electricity (Supply) Act, 1948. It is further submitted that the primary authority and the appellate authority have examined the representation made by the petitioner – consumer and assessed the loss having regard to actual connected load of energy at the time of inspection. The supply of electricity service to the petitioner is pursuant to an agreement entered into as per the terms and conditions of supply framed under the Electricity (Supply) Act, 1948. Though the provisions of the Electricity Act, 2003 came into force with effect from 10.6.2003, by virtue of the transitional provision, under Section 172(d) of the Electricity Act, 2003, the Stage Government has disapplied certain provisions of the Electricity Act 2003. A reading of the said notification issued by the Government under G.O.Ms.No.90 dated 4.8.2003 shows that the provisions contained under Section 126(5) and (6) of the Electricity Act, 2003 are dis-applied to the State of A.P. for the period commencing from 10.6.2003 to 9.12.2003. In view of the said diapplication of the provision by virtue of the orders of the Government issued under G.O.Ms.No.90 dated 4.8.2003, the case of the petitioner is covered by the terms and conditions stipulated under the Electricity (Supply) Act 1948. The terms and conditions, particularly, condition NO.39.7.1 provides the procedure to assess the loss on account of pilferage and it empowers the respondents to estimate the period of mal-practice upto a period of one year back from the date of inspection. In view of the said provision and terms and conditions of supply and also in view of the notification issued by the Government, dis-applying the provisions of Section 126(5) and (6) of the Electricity Act, 2003, I do not find any merit in the argument advanced by the learned counsel for the petitioner that the assessment period could have been confined to three months. Further, though it is submitted that the electric motor was purchased in the preceding month of the date of inspection, the said argument has been raised before the authorities and the respondents have considered the actual connected load at the time of inspection and taking average of 3.5 hours per day for the connected load the impugned orders are passed determining the loss of average. Inasmuch as the respondents have considered the said aspect, I do not find any merit in the submission of the learned counsel for the petitioner that the electric motor was connected only in the preceding month of the date of inspection. Taking into consideration the nature of allegation against the petitioner who has indulged in electricity pilferage by-passing the meter, I do not find any merit in this writ petition so as to interfere with the orders under challenge in exercise of jurisdiction under Article 226 of the Constitution of India. It is submitted by the learned counsel that as against the loss estimated, an amount of Rs.40,000/- had already been paid by the petitioner prior to the disposal of the appeal by the Superintending Engineer and further amount of RS.5000/- was also paid pursuant to the interim orders of this Court dated 5.1.2004. In that view of the matter, the petitioner is permitted to pay the balance amount due within a period of two months from today. It is made clear that if the amount due is not paid within the said period of two months, it is open to the respondents to take steps in accordance with the conditions of supply. Subject to the above directions, the writ petition is disposed of. No order as to costs. ____________ 22-6-2009 asp