THE HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO.17051 OF 2004 Dated 11th September, 2009 Between: N.Mahalakshmi … Petitioner and The Superintending Engineer And three others … Respondents The Court made the following O R D E R: In this writ petition, the petitioner, consumer of electricity from the Andhra Pradesh Eastern Power Distribution Company Limited (for short “APEPDCL”), sought for a direction by way of a Writ of Mandamus to declare the order passed by the Divisional Engineer (Assessments), Rajahmundry-respondent No.2, dated 27.04.2004 passed in Proceedings No.4082/DE/A/RJ/DOC.No. RCP- 566/D.No.5873/04 and the order of the appellate authority i.e., the Superintending Engineer (Assessments)-respondent No.1, dated 24.08.2004 issued in proceedings No.SAP 1665/RJY/D.RCP/RCP/A/F.780/ D.No.2274 confirming the order of respondent No.2, as illegal and arbitrary. The petitioner is availing the supply of electricity through service Connection No.603, Category-I. The said service connection was inspected by the Additional Assistant Engineer, Operation, APEPDCL on 21.01.2004 and on the ground that the petitioner was using Category-I supply unauthorisedly for commercial purpose, as such, the same amounts to malpractice, proceedings were initiated against her for assessment of the loss of energy. Initially, the Assistant Divisional Engineer-respondent No.3 has provisionally estimated the value of energy alleged to have been misused by the petitioner at Rs.41,777/-, by his order dated 22.01.2004, and the petitioner deposited half of the said amount along with supervision and reconnection charges for continuity of the supply, pending enquiry. Show cause notice dated 24.03.2004 was issued to the petitioner and the petitioner submitted her explanation dated 21.04.2004 denying the allegations made in the show cause notice besides stating that the Department has not followed the procedure prescribed under Section 126 (5) of the Electricity Act, 2003 (for short “the Act”). In spite of the explanation submitted by the petitioner, final assessment order has been passed by respondent No.2 in proceedings dated 27.04.2004, holding that she committed malpractice and as such liable to pay an amount of Rs.41,536/-. It is the case of the petitioner that though the final assessment order was passed on 27.04.2004, the same was not served on her and she made a representation on 27.05.2004 through her Advocate and thereafter, she was informed by respondent No.2, by letter dated 28.06.2004, about the final assessment order. After receipt of the orders passed by respondent No.2, the petitioner filed appeal under Section 127 of the Act before respondent No.1 raising the grounds that she was not given opportunity of hearing as contemplated under Section 126 of the Act; that the commercial activity for which the electricity was alleged to have been used is not mentioned in the assessment order and that assessment of loss of energy was not in conformity with the period prescribed under Section 126(5) of the Act. Respondent No.1, by order dated 24.08.2004, dismissed the appeal. In response to the grounds raised by the petitioner that no opportunity of hearing was given, respondent No.1 held that personal hearing would be given only in case if it is felt essential and requested by the consumer. As regards the plea of the petitioner that the nature of the commercial business is not mentioned in the assessment order, respondent No.1 recorded a finding that the same is mentioned in the inspection notes. With regard to the plea of the petitioner that the procedure as contemplated under Section 126 of the Act is not followed, the appellate authority, curiously recorded a finding that the order passed is in accordance with the terms and conditions of supply framed by the APEPDCL. Heard Sri V.S.R.Anjaneyulu, learned counsel for the petitioner, and Sri O.Manohar Reddy, learned Standing Counsel appearing for the respondents. It is contended by the learned counsel for the petitioner that the final assessment order was issued without any basis and without following the due procedure contemplated under the provisions of the Act. He further contended that the petitioner was not notified the alleged commercial activity for which the malpractice was attributed to her and in spite of the specific objections raised by the petitioner, the primary authority has not considered the same in proper perspective and the appellate authority also failed to consider the same. On the other hand, the learned Standing Counsel submitted that when the inspection was made, it was found that the petitioner was unauthorisedly using the electrical energy for her commercial establishment, which is being run in the name of ‘Asmitha Micro Limited’ and a case of malpractice was booked against her and that the respondents, having followed the provisions contemplated under the law, assessed the loss of energy. Before considering the contentions of the learned counsel, it is apt to refer to certain provisions of the Act. As per Section 126 of the Act, if on inspection, it is found that any consumer is indulging in unauthorised use of electricity, the order of provisional assessment has to be served as per Section 126(2) of the Act and as per Section 126(3) of the Act, the consumer has to be given an opportunity to file objections and a reasonable opportunity of hearing before passing the final order of assessment. In the present case, it is evident from the letter addressed by respondent No.2 dated 28.06.2004, that such opportunity of hearing was not given and in the said letter, it is stated that the said opportunity was not given because the petitioner has not asked for. When the statute obligates a reasonable opportunity of hearing to be given, irrespective of the fact that whether the consumer has asked for it or not, it is obligatory on the part of the assessing authority to issue notice of hearing before passing of the order of assessment. As regards the other plea of the petitioner that she was not notified with regard to the alleged commercial activity for which she alleged to have used the electricity, on perusal of the show cause notice, it is vague and no details are given in it with reference to the allegation against the petitioner that she was using the electricity for the purpose of commercial activity. In spite of raising such a ground before the appellate authority, the appellate authority simply recorded a finding that in the inspection notes, such an allegation is recorded. Recording of the said allegation in the inspection notes does not mean as notifying the petitioner. Further the plea of the petitioner that for domestic service connections, the back billing should be confined to a period of three months only, as per Section 126(5) of the Act, also has not been considered in proper perspective. For these reasons, I am of the opinion that it is a fit case to quash the orders passed by the primary as well as appellate authority and remit the matter to the primary authority for fresh consideration. Accordingly, the orders of respondent Nos.2 and 1 dated 27.04.2004 and 24.08.2004 respectively are quashed. Respondent No.2 is directed to issue a fresh show cause notice, by giving details of the allegations made against her, to the petitioner and pass appropriate orders, after following the procedure as contemplated under Section 126 of the Act. The deposit of Rs.20,885.50, pursuant to the provisional assessment order, and 50% of the balance amount during the pendency of the writ petition in this Court made by the petitioner will be subject to the fresh final orders to be passed by respondent No.2. Pending further proceedings, no steps shall be taken against the petitioner demanding any further amount. If the final assessment order is not passed within a period of four (4) months from today, the amounts collected from the petitioner shall be refunded to her by way of an account payee cheque. The writ petition is, accordingly, allowed. No order as to costs. ____________________ R.SUBHASH REDDY, J Dated 11th September, 2009 vrn