IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 21317 of 2008 Between: Sirajuddin Ahmed S/o.Basheeruddin Ahmed of Deccan Mouldings ) Plot No.9/a,Road No.5, IDA,Nacharam, Ranga Reddy District ..... PETITIONER AND 1 The Central Power Distribuiton Company of AP Limited rep.by its Chairman & Managing Director, Singareni Bhavan, Lakdikapoo,Hyderabad 2 The Superintending Engineer, Assessments, The Central Power Distribution company of AP Limited, AP State Warehousing Cropn.Buildings, Urdu Hall Lane H.No.3-6- 184,4thfloor, St.No.17, Himayatnagar,Hyderabad 3 The Assistant Divisional Engineer,Operation,Central Power Distribution Company of AP Limited, Habseeguda, Nacharam,Ranga Reddy District ....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 or order or direction more particularly one in the nature of writ of mandamus declaring Order No.SEA/Hyderabad/F.No./SAH.No.10380 D.N.301,dated 10.7.2008 and LR.No.ADE/OP/HBG/F.No.81/D.No.121/2008 dated 30.4.2008 of the 2nd respondent as highly illegal, arbitrary, unjust and contrary to section 126 of the Electricity Act,2003 and Condition No.9 of the General Terms and Conditions of Supply of the 1st respondent and pass Counsel for the Petitioner:MR.D.V.NAGARJUNA BABU Counsel for the Respondent No.: MR.O.MANOHER REDDY The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No. 21317 of 2008 O R D E R: The petitioner herein is a lessee in respect of the premises situated in Plot No.9/A, Road No.5, IDA, Nacharam, Ranga Reddy District wherein he has been running a function hall. Prior to that the said premises was being used for industrial purpose, for which LT service connection bearing SC No.2525 was obtained. The petitioner claims that he has taken the premises on lease w.e.f 28-05-2007 and since then he has been paying the electricity charges regularly. While so, on 23-04-2008 the premises in question was inspected by the 3rd respondent herein and pursuant thereto, a provisional assessment notice dated.30.04.2008 was issued to the petitioner alleging that the petitioner’s service connection was being used for commercial purpose as against the industrial purpose for which the service connection was obtained. The value of energy allegedly consumed by the petitioner unauthoirizedly was provisionally assessed as Rs.3,25,441/- and the petitioner was asked to pay 50% of the same for obtaining restoration of the power supply which was disconnected by then. Subsequently, a show cause notice dated10-06-2008 was issued, to which the petitioner submitted his explanation on 17-06-2008 stating that the premises was taken by him on lease w.e.f 28-05-2007 and then onwards the premises was used as a function hall. However, the 2nd respondent passed the final assessment order dated.10-07-2008 holding that the petitioner had indulged in unauthorized use of energy and calling upon the petitioner to pay Rs.5,72,523/- towards loss sustained by the department together with Rs.150/- towards supervision charges. The said order dated.10-07-2008 is under challenge in this writ petition. Though the allegation as to unauthorized consumption of electricity is not disputed before this Court, the impugned assessment is challenged primarily on the ground that the impugned assessment for a period of three years is arbitrary, illegal and contrary to the mandatory provisions of Section.126 of the Electricity Act, 2003 (for short “the Act”). It is further contended that imposing penal rate three times the normal tariff is also illegal. Heard the learned counsel for both the parties. Section 126 of the Act which deals with assessment of the electricity charges payable by the person who indulged in unauthorized use of electricity, to the extent it is necessary for the present case may be extracted hereunder:- 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)…………………………… (3)…………………………… (4)…………………………… ( 5 ) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place. (6) The assessment under this section shall be made at a rate equal to one and half times the tariff rates applicable for the relevant category of services specified in sub-section(5). Subsequently sub-section (5) of the Act has been substituted under the Electricity Amendment Act, 2007 as under: “ If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection” Similarly, in sub-section (6), for the words one and half times, the words, twice has been substituted. On a combined reading of the above provisions, as amended under the Amendment Act 26 of 2007, it is clear that where the assessing officer concludes that unauthorized use of electricity has taken place and where the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. Otherwise it shall be for the entire period during which such unauthorized use of electricity has taken place. In the case on hand the specific case of the respondents is that at the time of inspection the petitioner was present and stated that the supply to the premises was being used for a function hall for the last three years and the same was also recorded in the inspection reports. Thus the contention of the respondents is that as per the provisions of Section.126 of the Act the assessment was rightly made for the entire period during which the unauthorized use of electricity had taken place. However, the learned counsel for the petitioner disputed the same and contended that the period during which the alleged unauthorized use of electricity had taken place cannot be ascertained and therefore the assessment ought to have been limited to a period of 12 months immediately preceding the date of inspection. Whether the petitioner was present on the date of the inspection and conceded the alleged use of the premises in question as a function hall for the last three years is a pure question of fact which cannot be decided by this Court in exercise of writ jurisdiction under Article.226 of the Constitution of India. Consequently no finding as such can be recorded by this Court as to the period during which the unauthorized use of electricity has taken place through the petitioner’s service connection. In the circumstances, I deem it appropriate to direct the respondents to conduct a fresh enquiry with regard to period of the unauthorized consumption of electricity after giving an opportunity to the petitioner to make his representation. Accordingly there shall be a direction to the respondents to issue a notice to the petitioner furnishing the details of his liability for a period of three years on the ground of his alleged admission at the time of inspection. On receipt of such notice it is open to the petitioner to submit his explanation along with the material if any to substantiate his plea that the period of unauthorized use of electricity cannot be ascertained. After considering such explanation the respondents shall pass appropriate orders in accordance with law within a period of four(4) weeks from the date of receipt of the petitioner’s explanation. So far as the rate of tariff is concerned the impugned order shows that the assessment was made @ three(3) times normal tariff as against the two(2) times prescribed in sub-section.6 of Section.126 of the Act. More over the learned counsel for the petitioner contends that as pear Clause A3.16 of Annexure XII (iii) of the General Terms and Conditions approved by the A.P. Regulatory Commission which came into force w.e.f., 06-01-2006, the assessment of unauthorized use of electricity in marriage/community halls shall be restricted to six months in the urban areas and four months in the rural areas and that the respondents failed to take notice of the same while making the impugned assessment. The said issue also requires consideration by the respondents. Accordingly the petitioner is permitted to make a representation within a period of one week from the date of receipt of a copy of this order if not already made with regard to his claim on the basis of the above referred clause in the General Terms and Conditions. If any such representation is received, the second respondent shall consider the said claim also in accordance with law and pass a fresh final assessment order within the time specified above. Accordingly the impugned order is set aside and the writ petition is disposed of with the above directions. No costs. _____________ G.ROHINI, J 8TH December, 2008 *TSNR