THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO WRIT PETITION No.7860 of 2008 ORDER: Heard the learned Counsel for the petitioner and the learned Standing Counsel for the respondents. The petitioner is a Lodge in Hyderabad. It is having LT service connection bearing No.K2-3910 obtained from the erstwhile APSEB. The petitioner started its business in the month of June 2003. An inspection was conducted on 31.12.2003 and a case of pilferage was booked against the petitioner and the fourth respondent issued a provisional assessment notice. But, the petitioner claims that the said notice was not served on it. However, an explanation was submitted on 18.07.2004 to the allegations of pilferage. However, the provisional assessment notice was ultimately received from the fourth respondent on 21.04.2004. The value of energy pilfered was calculated at Rs.74,448/- for the period from 31.12.2002 to 31.12.2003, and the petitioner was required to pay a sum of Rs.37,224/- being the 50% of the provisionally assessed amount for restoration of the power supply. The petitioner filed W.P.No.12278 of 2004 challenging the said provisional assessment notice, and the said Writ Petition was disposed of at the admission stage on 16.07.2004 by setting aside the provisional assessment notice with an observation that at the stage of provisional assessment, the power supply cannot be disconnected and no amount can be recovered pursuant to the provisional assessment. Thereafter, the third respondent passed an ex parte order on 21.07.2004 finally assessing the value of energy pilfered at Rs.2,68,259/-. The petitioner filed an appeal before the second respondent and the same was disposed of on 31.12.2004. Challenging the same, the petitioner filed W.P.No.4136 of 2005 and the same was disposed of on 18.09.2007 directing the appellate authority to give an opportunity of hearing to the petitioner. After giving an opportunity, the second respondent passed an order in appeal on 28.02.2008 confirming the assessment made earlier on 31.12.2004. Challenging the same, the present Writ Petition was filed. A counter affidavit is filed on behalf of the respondents stating that on the date of inspection on 31.12.2003, the owner of the Lodge was present and the incriminating points were shown to the consumer representative. The fact of non-availability of seals on the meter cover was shown to the consumer representative and a statement to that effect was also recorded in the inspection notes duly signed by the consumer representative. A provisional assessment notice was issued and thereafter the Divisional Engineer issued a notice on 05.06.2004 to the petitioner calling upon them to appear either in person or through an Advocate on 18.06.2004. The petitioner submitted a representation on 08.07.2004. A final assessment order was passed on 21.07.2004, against which the petitioner preferred an appeal to the appellate authority and the same was disposed of on 31.12.2004. In view of the subsequent orders in the Writ Petition, the said order was revised and ultimately a final order was passed on 28.02.2008 assessing the loss of energy at Rs.66,033/-. A perusal of the appellate order indicates that pursuant to the final order passed by the authority, the petitioner preferred an appeal and in view of the orders in W.P.No.4136 of 2005 dated 18.09.2007, the petitioner was afforded an opportunity of being heard. The defence taken by the petitioner was to deduct some more amount by taking into account the hours of work. The appellate order was passed by duly taking the assessment period as six months at 1.5 times the penal rate. Now, the learned Counsel for the petitioner submits that the meter was inspected on 02.12.2003 and 31.12.2003. Though nothing was stated immediately after inspection on 31.12.2003, a notice was issued only on 05.06.2004 after lapse of nearly five months. Even if it is assumed that some unauthorized use of electricity took place, the said unauthorized use should have taken place after 02.12.2003 only. Section 126(5) of the Electricity Act says that if the assessing officer comes to the conclusion with regard to the unauthorized use of electricity, 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. In the instant case when no tampering of meter was noticed on 02.12.2003 and it was noticed on 31.12.2003 it can be assumed that the alleged tampering might have taken place before the said period. In view of the same, the Assessing Officer should have taken the period of one month for the purpose of assessing the loss of energy. Instead, the appellate authority has taken six months period mechanically and calculated 1.5 times the penal rate for the said period. In the circumstances, the penal rate at 1.5 times is reduced to one month and the order of the appellate authority to that extent is modified. The third respondent shall recalculate the amount based on such reduction of period and if any excess amount was paid by the petitioner pursuant to the interim order dated 10.04.2008, the same shall be adjusted in the future bills. The Writ Petition is partly allowed as indicated above. The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs. ________________________________ (A.RAMALINGESWARA RAO, J) 28.11.2014 vs