THE HON’BLE DR. JUSTICE G. YETHIRAJULU W.P.No.16822 of 2004 ORDER: This writ petition is filed by the petitioner seeking to declare the order of the third respondent, dated 09-10-2003, which was confirmed by the second respondent through the order, dated 31-08-2004 and enquiry initiated pursuance to the provisional assessment, dated 20- 07-1994 as illegal, arbitrary ultra virus and unconstitutional and consequently, to direct the respondents to refund the amount of Rs.1,85,433/- with interest @ 18% per annum. 2. The petitioner established a Colour Lab at Chikkadapally, Hyderabad. The premises was taken on lease from the owner in the year 1990 for running the Colour Lab. The owner of the premises has applied for release of the power supply under L.T. Category-II for a total connected load of 5 KVA and the service was released on 29-01- 1990. Though the premises was taken on lease in January, 1990, the functioning of the Colour Lab could not be commenced on account of the delay in getting the bank loan, the purchase of photographic equipment and its arrival from Singapore. Since the equipment was received in the month of November, 1990, the erection of the equipment was commenced in August, 1991 and the Colour Lab started functioning in September, 1991. Till then, there has been virtually stand still in the business activities of the Colour Lab. Though the respondents made periodical inspection for taking meter reading, the meter was inspected by D.P. Squad on 15-07-1994 and in the course of inspection, the signature of the employee of the petitioner was taken forcibly on blank papers and later a provisional assessment, dated 20-07-1994 was served. In the notice, it was mentioned that during the inspection, they found that the energy was pilfered and later a provisional assessment notice was given for a sum of Rs.7,41,132/-. Being aggrieved by the provisional assessment notice, the petitioner filed W.P.No.15582 of 1994 before this Court and this Court, while disposing of the writ petition, directed the respondents to restore power supply to the premises of the petitioner on condition of depositing half of the amount demanded immediately. Pursuant to the said direction, the petitioner deposited an amount of Rs.1,85,433/- on 01-09-1994 and got the power supply restored. The petitioner further contended that the respondents also field C.C.No.401 of 1999 for the offences under Sections 39 and 39 (a) of the Indian Electricity Act. But the Criminal Case ended in acquittal by observing that the allegations made against the petitioner are false. The Judgment in the criminal case became final. Simultaneously, the petitioner filed a detailed explanation to the third respondent bringing to his notice various contentions and requested the authorities to drop the proceedings. Though the said representation was presented before the third respondent on 27-12-1997, no orders have been passed with regard to the assessment proceedings, therefore, the petitioner filed another writ petition covered by W.P.No.15516 of 2004. But the writ petition was dismissed directing the petitioner to appear before the concerned authority. Accordingly, the petitioner appeared through his counsel and submitted written explanation questioning not only the jurisdiction of the assessing authority, but also the estimate. Though the Special Court has alone to make the enquiry of assessment in cases of pilferage, the third respondent proceeded in making the assessment and levied the penalty for the period from 9/91 to 7/94 and arrived the estimate at Rs.2,96,579/-. Being aggrieved by the same, the petitioner was constrained to file an Appeal before the second respondent reiterating the grounds and sought for personal hearing of the Appeal. The second respondent mechanically passed the order confirming the order of the third respondent without application of mind. The Appellate Authority ordered the assessment in excess of his authority and erroneously made the assessment for a period for more than six months and levied the penalty thrice the normal charges. Under Section 126 of the Act of 2003, the penalty is leviable for a maximum period of six months and twice the normal charges if the consumer is found guilty of pilferage. The respondent- authorities acted unilaterally in making the enquiry and violated the principles of natural justice. After the date of inspection on 15-07-1994, an adjustment bill raising a demand of Rs.20,590/- was issued for the period from 02/90 to 11/94 by the Assistant Accounts Officer for 57 months purportedly on the ground of back billing for the period of which the respondent board has failed to take the readings regularly in spite of many letters. In the light of the above circumstances, the petitioner approached this Court seeking the reliefs as mentioned above. 3. The respondents filed a counter with the following contentions in brief: During the inspection on 15-07-1994, certain incriminating points were noticed, which prima facie established that the meter has been meddled by tampering seals and electricity was pilferaged. The provisional assessment notice was issued on 20-07-1994 on the petitioner estimating the value of the energy pilferaged at Rs.7,49,570/-. Subsequently, a show cause notice was issued by the third respondent calling upon the concerned to raise all the objections against the proposed assessment. On 27-12-1997, a representation was given and further representations were also made subsequently. The third respondent, after considering the objections raised and the material on record, estimated the value of energy pilferaged at Rs.2,96,579/-. Aggrieved by the same, the petitioner preferred an Appeal to the second respondent and the same was disposed by proceedings, dated 31-12- 2003 confirming the order passed by the third respondent. The order of the Appellate Authority was challenged before the High Court in W.P.No.9806 of 2004 contending that without affording an opportunity of personal hearing, the Appellate Authority passed the order in the Appeal. The writ petition was disposed of with a direction to the respondent-authorities to afford an opportunity of personal hearing to the petitioner before passing orders in the Appeal. Subsequently, the Appeal was disposed of on 28-07-2004 by the second respondent giving opportunity of personal hearing to the petitioner confirming the orders of the third respondent. 4. It is further contended by the respondents that even if a person is acquitted in criminal proceedings, the same has no bearing on civil proceedings, as both are different and distinct. 5. In the light of the contentions of the respective parties, the point for consideration is: “Whether the orders passed by respondents 2 and 3 are liable to be set aside?” 6. It is an undisputed fact that the petitioner is the Proprietor of Zoom Colour Lab situated at Chikkadapally, Hyderabad. He stated that he took the premises on lease in 1990 and the electricity connection was given on 29-01-1990. It is the contention of the petitioner that though the premises was taken on lease in the month of January, 1990, the functioning of the laboratory commenced in September, 1991. It is also an undisputed fact that D.P. Squad of the respondents inspected the meter on 15-07-1994, but the contention of the petitioner is that in his absence the signatures of the employee were taken on blank papers and provisional notice was served on him. The assessment authority as well as the Appellate Authority considered all the points raised by the petitioner. The final assessment authority, who is the third respondent, observed that there is no documentary evidence that the petitioner approached the department for non-receipt of the bills and also for non-receipt of service connection number till the date of inspection of the meter. The person present at the time of inspection was Sri Anil Deshpande (Manager) and two other persons namely 1. Sri Mohd. Gouse of New Style Opticals, Chikkadapally and 2. Sri Nalin Shah, Proprietor of M/s Raja Steel palace, Chikkadapally. At the time of testing of the meter on 16- 07-1994, Sri Anil Deshpande was present along with the owner Sri Mirza Sarwar Ahmed Baig. The inspection of the meter was done in the presence of a lady by name Ananda Lakshmi along with other staff. She objected for the inspection saying that the meter is under lock and key in the office room of the owner situated in he first floor. In the meanwhile, Sri Anil Deshpande, Manager, came. The report discloses that the consumer kept the meter under lock and key from the beginning without giving scope to the departmental people to see the meter, which is against the departmental Rules. The consumer stated that there is another meter located in the ground floor where the entire machinery of Colour Lab was installed and the he mislead by providing the second meter. The sanction load for the connection was 5 KW, but the connected load at the time of inspection was 12.59 KW. There is an excess load of 7.59 KW. The consumer never approached the department for regularizing the above excess load from the date of installation of the machinery i.e., 15-09-1991 till the inspection, dated 15-07-1994 and it constitutes malpractice. As the consumer stated that the equipment of the lab was used from 15-09-1991, the final assessment is made from 15-09-1991 to the date of inspection. The reading on the date of inspection was 8986, whereas the meter disclosing the reading as 00001. As the machinery was installed on 15-09-1991, the recorded consumption of 8986 was considered from 15-09-1991 to 15-07-1994 for arriving at the final assessment amount. 7. The contention of the petitioner that he did not commence his business till 15-09-1991 was considered by the third respondent and considered the meter reading from that date only. Since the electricity was released on 29-01-1990, he is liable to pay the minimum charges from 29-01-1990 till 14-09-1991 and is liable to pay the consumption charges from 15-09- 1991. As he exceeded the contract load, he is liable to pay penalty and accordingly, the penalty was imposed arriving the amount at Rs.2,96,579/- in addition to other usual charges. 8. The learned counsel for the petitioner submitted that as per Section 126(5) of the Act of 2003, the penalty is liable to be imposed for six months period and one and half times and as per the old Act, one year period has to be taken into consideration. But since the authorities took the entire period into consideration, it is not in accordance with the Rules, therefore, the impugned order is liable to be dismissed. 9. The above contention of the petitioner’s counsel is applicable when the period is not known. But, in the present case, it is categorically admitted by the petitioner that the consumption was started from 15-09-1991, therefore, the authorities were right in calculating the amount for the entire period and as he exceeded the contract load, he is liable to pay penalty also. 10. So far as the contention of the petitioner that the Special Tribunal is the competent authority to pass orders in the Appeal in respect of pilferage of energy is concerned, the order was passed after the abolition of the Tribunal, therefore, the authorities were right in passing the order. In the event of the existence of the Tribunal only, the question of jurisdiction arises and as the Tribunal was abolished, the second respondent passed the order. 11. As the order was on the basis of a specific finding of the Inspection Officer and Assessing Officer that there was pilferage of energy, the concerned authorities were right in holding that there was no force in the contention of the petitioner. I do not find any grounds to interfere with the order passed by the respondent-authorities. 12. Hence, the writ petition is dismissed. No order as to costs. ___________________ Dr. G. YETHIRAJULU, J Date: 18-02-2008 YCR