THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No :21998 of 2004 Date: 2.7.2010 Between: Abdul Habeeb ..... PETITIONER AND Superintending Engineer, Assessments, Central Power Distribution Co., of A.P. Ltd., Hyderabad and others. .....RESPONDENTS Counsel for the Petitioner : T. Venkata Reddy Counsel for the Respondent Nos. 1 to 3 : Sri O Manohar Reddy The Court made the following : THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No :21998 of 2004 ORDER: This writ petition is filed for a mandamus to set aside proceedings dated 29.11.2003 and 25.10.2004 of respondents 1 and 2, respectively. The petitioner is an L.T. commercial consumer running Electro Plating business. His service connection was inspected by the officials of the respondents and a case was booked for alleged pilferage. Show cause notice dated 12.11.2003 was issued by respondent No.1 proposing recovery of Rs.34,269/- towards the loss caused on account of the alleged pilferage indulged in by the petitioner. By passing a final assessment order dated 29.11.2003, respondent No.1 estimated the loss at Rs.23,959/-. This order was questioned in appeal before respondent No.2, who, by his order dated 25.10.2004 confirmed the final assessment made by respondent No.1. At the hearing, Sri T. Venkat Reddy, learned counsel for the petitioner submitted that the consumption pattern examined by the appellate authority was found to be uniform; that in the face of his own finding that there is not much variation, except a very little difference in the consumption between the pilferage and non-pilferage periods, there is no justification for making assessment against the petitioner. Sri O. Manohar Reddy, learned counsel for the respondents submitted that as the factum of pilferage was proved against the petitioner, he is liable to pay the loss assessed on account of the pilferage and therefore the orders of respondents 1 and 2 are not liable to be interfered with. I have carefully perused the orders passed by respondents 1 and 2. In his order, respondent No.2, inter alia, observed as under: “As per the consumption pattern for the years examined from date of inspection to as on today the average consumption is not much varying there is only very little difference. But the consumption recorded is not commensurate with the connected load.” Learned counsel for the petitioner has drawn my attention to the explanation offered by the petitioner before respondent No.1, which contains the pattern of consumption of the post pilferage period, showing the average consumption ranging between Rs.288 and Rs.563 from January, 2002 to October, 2003. Though the finding that the petitioner has tampered with the meter seals cannot be interfered with, the question that is relevant for consideration is whether on account of the tampering of the seals by the petitioner, any loss was caused to the respondents. Respondent No.1 has merely taken into consideration the theoretical calculation by using the proforma formula, which is generally adopted for making provisional assessment. But, while making final assessment, the assessing authority is bound to take into consideration the consumption pattern and if it is found that there is variation in the consumption, it will be presumed that the respondents have suffered loss and the consumer has suppressed the actual consumption by indulging in pilferage. In the face of the finding rendered by respondent No.1 that there is not much variation in consumption, I am of the view that resorting to theoretical calculation of the alleged loss would be arbitrary. On the strength of the interim orders, the petitioner has paid 50% of the assessment amount and having considered the facts and circumstances of the case, I am of the view that ends of justice would be met if the petitioner’s liability is reduced to the amount already paid by him. Accordingly, the writ petition is allowed to the extent indicated above. No costs. __________________________ C.V. NAGARJUNA REDDY,J DATE:2nd July, 2010 pnb