THE HON’BLE SRI JUSTICE C.V. RAMULU W.P. No. 19119 of 2005 O R D E R: The short controversy that arises for consideration in this writ petition is with regard to the presumption under Section 126(5) of the Electricity Act for the purpose of collecting penalty for unauthorized use of electricity. The facts are not much in dispute. It appears, petitioner has entered into lease agreement on 1.7.2004 with the owner of three shops situated at premises No. 7-10-175, R.P. Road, Subhash Nagar, Nizamabad town and he has been running a bakery shop in them. All the three shops are connected with separate electricity service connection Nos.M4-54074, M4-13870 and M4-29025. In so far as shops 1 and 2 are concerned, petitioner has been paying electricity, treating them as commercial use, whereas, in the third shop, according to the petitioner, only the customers come and sit there, therefore, it cannot be treated as commercial one and he has been paying electricity consumption charges which are payable for domestic premises. The dispute is as to treating third mulgi (shop) as a domestic mulgi by the petitioner. According to the respondents, it is nothing but unauthorized use of electricity for commercial purpose by paying consumption charges of domestic premises. Heard both sides. It cannot be said that since the petitioner is using third mulgi for customers’ use for sitting etc., it can be treated as domestic one. There cannot be any doubt that the third mulgi should also be treated as commercial one. However, the question is, under the impugned notice whether petitioner is liable to pay consumption charges for third mulgi, treating it as commercial one and presuming it to be there for one year under Section 126(5) of the Electricity Act. In this case, there is any amount of evidence to show that the petitioner has entered into premises only on 1.7.2004 and the inspection was conducted on 16.10.2004. Therefore, presumption as to consumption of electricity by the petitioner for third mulgi as a commercial use for one year cannot be accepted in the teeth of the evidence available on record. I am of the considered opinion that since the petitioner, being a tenant, is using the premises including third mulgi for commercial purpose, he is liable to pay consumption charges, which are payable for commercial use of energy, from 1.7.2004 to 16.10.2004. Of course, thereafter, petitioner has been paying commercial charges as charged by the Department. Learned counsel for the respondents has drawn attention of the Court to para 18 of the decision reported in Sri Tirumala Modern Rice Mill v. Transmission Corporation of A.P. Ltd.,[1] which reads as under: “18. Section 126 of the Electricity Act does not place any embargo like Section 154(5), with regard to the period of theft for which a person is liable to pay the assessed value. A proper reading of Sub-section (5) of Section 126 of the Electricity Act would show that if it is possible for the Assessing Officer regarding the period of theft, the same shall be the criteria for assessing the value of the pilfered energy. In case such determination of period is not possible, Section 126(5) of the Electricity Act lays down that irrespective of non- availability of the data, the Assessing Officer may presume a period of three months for domestic/agricultural services and a period of six months for other categories as the period during which a consumer unauthorisedly used electricity. If during the time of inspection or from the record available or from the history of the service connection, the Inspecting Officer or Assessing Officer are of the opinion that the period during which electricity was unauthorisedly used is more than three months or six months, as the case may be, nothing prevents such Officer to take into consideration the exact period or the inferred period for the purpose of calculating value of the pilfered energy”. The above decision is very clear as to the presumption to be placed by the Assessing Officer in case where there is no evidence available. In this case, since the lease agreement was entered into on 1.7.2004, it must be treated that the electricity was used unauthorisedly, treating third mulgi for domestic purpose, though it is used for commercial purpose. Therefore, petitioner is liable for consumption charges, treating the said premises as commercial one, from 1.7.2004 till 16.10.2004. Writ Petition is accordingly disposed of and the respondents are directed to calculate the liability of the petitioner on the basis of the above findings recorded by this Court. However, this will not prevent the respondent-Department from proceeding against owner of the premises under the presumption under Section 126 (5) of the Electricity Act, for the purpose of collecting consumption charges against third mulgi as commercial one even preceding the date of 1.7.2004 for a period of one year, if law so permits. No order as to costs. JUSTICE C.V. RAMULU. Date: 20-10-2010. MVB. [1] 2007 (4) ALT 497