IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINETEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 12720 of 2008 Between: Seelam Ramesh Babu, S/o. Late Nooka Raju, M/s Sai Prakash Industries (closed), R/o. D.No.77-9-27, Gandhipuram- 3, Rajamundry Post, E.G.District. ..... PETITIONER AND 1 The AP Eastern Power Distribution Company Ltd., Visakhapatnam, rep by its: 1. The Asst. Divisional Engineer, Operation, Town-1, sub Division, Jampeta Junction, Danavaipeta, Rajahmundry-[PO] E.G.District. 533 103 2 The AP Eastern Power Distribution Company Ltd., Visakhapatnam, rep by its: The Divisional Engineer, Operation, APEPDCL,Vidyut, Sakhabhavan, Godavaribund, Rajahmundry,[PO], E.G.District- 533 101 3 The Chairman cum Managing Director, APEPDCL, Corporate Office, SeetammaDhara, Visakhapatnam[PO] & District. .....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 an appropriate Order, Writ, or Direction more particularly one in the natur of Writ of Mandamus by declaring that, the action of the respondents No.1 by disconnecting power supply on dt. 21- 4-2008 to the electrical service connections No.11335 and 9546 , the other live service existing in the same premises, where the electrical sevice No.12471 of M/s. Sri Sai Prakash Metal Industries existed at Rajahmundry, on the gound of non-payment of balance dispute amount, involved in the penidng appeal in A.S.No.93/2007 on the file of the 1st Addl.District Court at Rajahmundry, by invoking the provisions contained in Condition No.42 (3) of the Terms and Conditions of power supply under the Indian Electricity Act 1910(which stood repealed and replaced by the Electricity Act 2003), as arbitrary, illegal, unjust, in violation of provisions of law, unsustainable against the petitioner and to grant Counsel for the Petitioner:MR.P.NARASIMHA RAO Counsel for the Respondent No.: O.MANOHAR REDDY(SC FOR APTRANSCO) The Court made the following, at the stage of admission : ORAL ORDER: The Writ Petition seeks a declaration that the action of the 1st respondent in issuing the impugned proceedings bearing Lr.No.ADE/O/Town-1/RJY/F./D.No. 633/2008 dated 18.4.2008, calling upon the petitioner to pay the balance amount of Rs.2,66,666/- outstanding against the petitioner’s Service Connection No.12471, Category-III, Thadithota, D3 Section, Rajahmundry, within the stipulated period from the receipt of the notice, failing which the other live services existing in the premises of the petitioner would be disconnected without further notice, as arbitrary and illegal. The petitioner is the proprietor of M/s Sai Prakash Metal Industries, Rajahmundry, having a Service Connection No. 12471. The petitioner’s industry with the aforesaid connection was inspected on 12.6.2001 by the authorities of the respondent and allegations of tampering with the seals and theft of energy were made. The meter in the petitioner’s premises was referred to the Meter Relays Testing unit (MRT) on 13.6.2001 and a report of tampering with the meter seals was recorded. The 1st respondent issued a provisional notice on 14.6.2001, alleging theft of electricity and the Service Connection No.12471 was disconnected on 14.6.2001 itself. A final assessment order was passed by the Superintending Engineer-Assessing authority on 1.10.2001, determining the liability of the petitioner for the theft of energy at Rs.3,51,766/-. Aggrieved thereby, the petitioner filed O.S.No.280 of 2001 on the file of the Court of the I Additional Senior Civil Judge, Rajahmundry. A stay of further proceedings, pursuant to the order of assessment was granted in the suit, on condition that the petitioner deposits an amount of Rs.85,100/-. The said amount was deposited. O.S.No.280 of 2001 was however dismissed on 24.4.2006 on merits. The petitioner thereupon preferred an appeal in A.S.No.93 of 2007 before the Court of the I Additional District Judge, Rajahmundry, which is pending. According to the learned counsel for the petitioner Sri P. Narasimha Rao, an application for ad-interim stay of the decree and judgment in O.S.No. 280 of 2001 was sought in the appeal, but the said application was dismissed by the appellate court. Consequently, the impugned order dated 18.4.2008 was issued by the 1st respondent recording the aforesaid facts and concluding that on account of non- payment by the petitioner of the balance amount of Rs.2,66,666/- towards the amount assessed as liable for the theft of energy, the service of the petitioner was recorded as ‘NB’ (Non-Billing). As a consequence of the aforesaid default by the petitioner, the other service connections to the petitioner’s industry were also disconnected after the impugned notice, invoking Condition No. 42.3 of the terms and conditions of supply. Condition No.42.3 of the terms and conditions of supply agreed upon between the petitioner and the respondents deals with discontinuance of supply. Condition No.42.3 enjoins that where any consumer defaults in payment of (…d) any other sums payable to the Board under the contract of supply or the tariff and terms and conditions of supply notified by the Board, under Section 49 of the Electricity Supply Act, the Board may, without prejudice to its other rights cause to be disconnected all or any of the other services of the consumer though such services be distinct and are governed by separate agreements and though no default occurred in respect thereof. It is the contention on behalf of the learned counsel for the petitioner that though O.S.No.280 of 2001 instituted by the petitioner against the order of assessment was dismissed, he has preferred an appeal in A.S.No.93 of 2007 and therefore there is a bona fide dispute between the petitioner and the respondents as to the petitioner’s liability for payment of the amount assessed for the theft of the energy alleged to have been committed by the petitioner and therefore pending final resolution of such bona fide dispute, it is unfair for the respondents to have invoked Condition No.42.3 of the Terms and Conditions of supply and disconnecting the other service connections of the petitioner for non- payment of balance amount of Rs.2,66,666/-. The above said contention advanced by the learned counsel for the petitioner requires to be rejected. The petitioner’s liability to an amount of Rs.3,51,766/-, pursuant to the order of assessment by the Superintending Engineer on the petitioner’s commission of theft of energy, is operative. In O.S.No.280 of 2001, the petitioner obtained an ad-interim interdiction of the assessment order, on payment of Rs.85,100/- . That order stood dissolved by the dismissal of O.S.No.280 of 2001. Thus, the order of assessment stood revived. The mere filing of an appeal by the petitioner in A.S.No.93 of 2007 does not tantamount to an interdiction of the operational order of assessment by the Superintending Engineer. In the aforesaid circumstances, the petitioner must be considered to be due “other sums payable to the Board under the contract of supply”, within the meaning of Condition No.42.3 of the Terms and Conditions of Supply, which are operational between the parties. The exercise of power under Condition No.42.3 is therefore justifiable and falls squarely within the Terms and Conditions. The exercise of power by the 1st respondent in the passing of the impugned order dated 18.4.2008 is therefore impeccable and warrants no interference nor does the writ petition. There are no merits. Writ Petition is dismissed at the stage of admission, after hearing the learned counsel for the petitioner and the learned Standing Counsel for the respondent-Company. There shall be no order as to costs. GODA RAGHURAM, J Date: 19.6.2008 cvm