IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 14529 of 2002 Between: G.Veeresham S/o. G.Somaiah R/o. Banda Kothapalli Village, Gundala Mandal, Nalgonda District. ..... PETITIONER AND 1 The Chief Engineer Operation, A.P. Central Power Distribution Company Limited, Singereni Bhavan, Hyderabad. 2 The Assistant Accounts Officer & E.R.O., Village & Mandal Mothukur, Nalgonda 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 to issue an appropriate Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of respondent No.1 Order No. CEO/F/NLG-174/D.3577/2002 dt. 12.6.2002 as illegal, arbitrary, unreasonable and passed on the presumption and the same is alos per se opposed to Electricity Laws and alos against the facts of the issue and Principles of Natural Justice and consequently suspend the proceedings of R1 pass Counsel for the Petitioner:MR.MOHAMMED ABDUL QADER Counsel for the Respondent No.: GP FOR REVENUE The Court made the following : HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.14529 of 2002 ORDER: The petitioner is Proprietor of M/s.Tirumala Modern Binny Rice Mill. The said rice mill has service connection No.174 L.T. Category.111 in Ramaram Village, Gundala Mandal, Nalgonda District. The Assistant Divisional Engineer, D.P.E.II, Nalgonda inspected the mill and found that seals of the meter box were tampered. The pilferage of energy was estimated at Rs.4,62,219/-. A show cause notice was issued to the petitioner by the Superintendent Engineer, ELSCL., Assessments, Hyderabad duly raising a demand for payment of Rs.4,57,841-75 paise. The petitioner submits explanation to the show cause notice. The Superintendent Engineer, ELSCL., Assessments, Hyderabad considered the explanation and proceeded to revise the assessment at Rs.2,04,515/-. The petitioner filed an appeal against the assessment made by Superintendent Engineer, ELSCL., Assessments, Hyderabad. The appellate authority by order dated 12-06-2002 dismissed the appeal confirming the value of energy estimated by the Superintendent Engineer. Hence, this writ petition assailing the order No.CEO/ENLG-174/D.No.3577/2002, dated 12-06-2002. 2. It is the grievance of the petitioner that the assessment made by the authorities is irrational and arbitrary. It is his case that the working hours estimated by the authorities have no basis. For better understanding the grievance of the petitioner, I deem it appropriate to refer para Nos.2 to 6 of the affidavit filed in respect of the Writ Petition, which reads as under: “I submit that R-1 and R-2 are regularly receiving electricity charges in spite of the fact that the unit was seized and sealed by the State Financial Corporation due to non-payment of instalments and during that period the inspection was made on 11- 07-2001 and the electricity supply remain disconnected from 11-7-2001 to 20-11-2001 and the petitioner is compelled to pay an amount of Rs.1,02,584.00 under protest as the condition precedent to prefer appeal is to deposit 50% of the amount of final assessment i.e., 2,02,584.00. I submit that the alleged pilferage of the energy based on the presumption of R-1 for a period of five months is Rs.40,000/- (Forty thousand per month) besides the payments of the regular charges and absolutely there is no other material to substantiate the charge of the alleged pilferage and the false criminal case is also pending as Cr.No.1365/2001 before the court, except the report of the inspection officer on 11-07-2001 and earlier inspection was made on 30-01-2001. I submit that Gundala Mandal of Nalgonda District is a drought prone area and there are no river, lakes or ponds for the cultivation of paddy and after Rabi season the rice mill hardly work below one hour per day as the population is also meager and the paddy is used for domestic consumption of the cultivators and not for business apart from the further facts that there four different Rice mills in the neighbouring villages as certified by the Mandal Revenue Officer and Sarpanch of the village. I submit that these two independent authorities independently stated that rice mill runs below one hour during Abi and Tabi seasons and there is no water resources and there are other rice mills in the neighbouring villages. I submit that the appellate authority has taken four working hours per day ignoring the two independent reports of the Mandal Revenue Officer and the Sarpanch of the Village in spite of the fact that the inspection was made when the mill was seized and sealed by the State Financial Corporation, and during this period the inspection was made on 11- 07-2001 and the Mandal Revenue Officer in the report specifically stated that the mill runs not more than (15) fifteen days in season below one hour per day.” 3. Rule nisi came to be issued on 13-08-2002. An interim direction as prayed for has been granted on the even date vide W.P.M.P.No.1816 of 2002. 4. The respondents filed counter affidavit. One T. Venkatesham sworn to the counter affidavit filed on behalf of the respondents. It is stated in the counter affidavit that the value of the energy pilfered by the Mill has been assessed taking into consideration the attending factors and therefore, the order passed by the Primary Authority as confirmed by the Appellate Authority does not suffer from illegality or irregularity warranting interference in exercise of the powers under Article 226 of Constitution of India. 5. Heard learned counsel appearing for the parties. 6. Learned counsel appearing for the petitioner submits that the method of assessment made by Primary Authority with regard to the working hours of the Mill is irrational and therefore, the order passed by the Primary Authority as confirmed by the appellate authority is liable to be set aside. He would also submit that the Primary Authority and the appellate authority failed to take note of the certificates issued by the Mandal Revenue Officer and the Grampanchayat with regard to the working hours of the Mill and thus the orders impugning in the Writ Petition are liable to be set aside. A further submission has been made that a case instituted against the petitioner for pilferage of the energy has been ended in acquittal and thus the very basis for passing the assessment orders falls to the ground and in which case the Writ Petition deserves to be allowed. 7. I have gone through the judgment passed in C.C.No.84/2002 wherein the three accused have been prosecuted for pilferage of energy in the Mill. The three accused are Jinnam Anjaiah, Palapu Raju and Gunda Veeraiah, S/o.Somaiah. The Criminal Case ended in acquittal since the prosecution failed to establish that A-2 and A-3 are in any way associated with M/s.Tirumala Modern Binny Rice Mill Ramaram Village, Gundala Mandal, Nalgonda District. For better appreciation I may refer the relevant portion of the judgment, which reads as follows: “PW-5 Mr.Malla Reddy, Inspector of Vigilance who investigated and filed charge sheet during cross- examination deposed that except ownership certificate, there is no record to connect the accused with this case. He admitted that the Thirumala Binni Modern Binni Rice Mill is a licensed Industry. He stated that he has not collected any record from the Labour Department and the Industries Department as to who are the partners of the Rice Mill. It was suggested to him that they fabricated Ex.P-9 ownership certificate for foisting this case against the accused. The ownership certificate said to have been issued by PW-4 was marked as Ex.P-9 in the evidence of PW-5. As seen from Ex.P-9, it is mentioned that one G. Chakrapani resident of Yadagirigutta established Sri. Thirumala Modern Rice Mill at Ramaram village and that A-2 and A-3 purchased it from the said Chakrapani. This certificate is said to have been issued by PW-4. But as stated above, PW-4 denied having issued this certificate. According to him, the Vigilance Police brought the certificate and obtained his signature and that he is illiterate and not aware about the contents of Ex.P-9. He further stated that he did not know the accused persons. He also stated that the owner of Thirumala Modern Binni Rice Mill belongs to Yadagirigutta area and he is no more. It is not the case of the prosecution that the service connection is in the name of A-2 and A-3. Except Ex.P- 9, there is no other document to show that Ex.A-2 and A-3 were running the said M/s.Thirumala Modern Binni Rice Mill at Ramaram village as on the date of inspection. PW-5 has categorically stated that he never issued Ex.P-9 certificate. In these circumstances, there is absolutely no evidence on record to connect A-2 and A-3 to the Thirumala Modern Binni Rice Mill. PW-3 who was present at the time of inspection of the mill also stated that he did not know the accused. For these reasons, there is absolutely no material on record to show that A-2 and A-3 were running M/s.Thirumala Modern Binni Rice Mill at Ramaram village and that they meddled with the meter mechanism and committed theft of energy. Then the necessary conclusion is that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt.” 8. It is evident from the judgment passed in the Criminal Case, the present petitioner who has been arrayed as A-2 did not claim the ownership of the Tirumala Modern Binny Rice Mill. Having pleaded such, the petitioner ought not have questioned the assessment made by the authorities with regard to the pilferage of energy in the Mill by way of filing an appeal. The conduct of the petitioner speaks volumes of it. Whatsoever may be, the Primary Authority and Appellate Authority considered the material brought on record and proceeded to assess the value of the energy pilfered by the Tirumala Modern Binny Rice Mill. The assessment made by the Primary Authority as confirmed by the appellate authority can be said as irregular or irrational. 9. I do not see any valid ground to interfere with the order passed by the primary authority as confirmed by the appellate authority. 10. Accordingly, the Writ Petition is dismissed. No order as to costs. _____________________________ B. SESHASAYANA REDDY, J 10th June, 2009 PN/KM HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.14529 of 2002 10th June, 2009