THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Dated this the 8th day of December, 2009. WRIT PETITION No. 20919 of 2002. Between: B.Mangamma ……..Petitioner vs. The A.P. Central Power Distribution Corporation Limited, Hyderabad and 3 others. ……..Respondents. THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 20919 of 2002. ORAL ORDER: This writ petition has been instituted by an L.T. category consumer of electric energy complaining of the improper action of the 4th respondent- Superintending Engineer, (Assessments), APCDCL, Hyderabad in agreeing with the assessment of the electric energy alleged to have been pilfered by the writ petitioner, at Rs. 5094/-, without considering the grounds of appeal. The case of the petitioner is that she was availing L.T. category domestic energy consumption bearing Service Connection No. 1302/1848 and while she was carrying on certain maintenance works at her residence, accidentally the electric energy meter has been damaged and consequently she had lodged a complaint for the purpose of it’s rectification. Instead of appreciating the fact that the electric energy meter was got accidentally damaged but not deliberately, the respondents have proceeded to assume that the petitioner is guilty of pilfering electric energy and on that basis, levied a compounding fee of Rs. 8,000/- and also calculated the electrical energy said to have escaped from assessment, at Rs. 5,094/- and sought to recover the same from the writ petitioner. This assessment made by the Divisional Engineer was challenged before the Appellate Authority namely the Superintending Engineer, APCPDCL, Hyderabad, who mechanically rejected her appeal without any regard for the facts prevailing is the case. On the contrary, the case of the respondent authorities is that the Assistant Divisional Engineer (Operation), Habsiguda has inspected the premises of the writ petitioner on 23.10.2000 at 12.10 hours and during the course of his inspection, he has noticed certain incriminating material, in particular a seal fixed by the officials of the respondent Board on the right side of the electric meter cover was found missing and hence he has suspected that electric energy is pilfered by the consumer. It is also alleged that the total consumption of electric energy is not being recorded and hence a provisional assessment has been made of the energy that had escaped from being charged. It is stated that upon inspection of the premises, the total connected load has been arrived at 1.28 Kilo Watts. Normally, when inspections reveal discrepancies and incriminating material, calculation will be made for the preceding one year period for determining the quantum of electric energy that may have escaped from assessment and since pilferage of energy is a penal offence appropriate criminal case under Section 39 r/w Section 44 of Indian Electricity Act has also been lodged against the writ petitioner. It is stated that the Assistant Divisional Engineer in his provisional assessment has come to a conclusion that the total energy escaped from assessment is Rs. 12,407.25 paisa and the same was intimated to the writ petitioner on 24.10.2000. Ultimately, the Divisional Engineer (Assessments) by his order dt. 8.4.2002 assessed the loss of energy at Rs. 5,094/- and also proposed Rs. 50/- towards supervision charges and Rs. 50/- for reconnection charges. According to the respondents, calculations have been made for the period from 24.10.1999 to 23.10.2000 i.e. for one year preceding the date of inspection and the prevailing slab rates of electric energy have been applied and the charges have been worked out at Rs. 5094/-. The appeal preferred by the writ petitioner has been considered by the Superintending Engineer, the 4th respondent herein and dismissed the appeal holding that there are no merits and consequently confirmed the order of assessment passed by the Divisional Engineer. Hence, it is contended by the respondents that the writ petition deserves to be dismissed. The important question that falls for consideration is whether the writ petitioner can be treated to be guilty of pilfering electric energy and on that basis be charged. It is not in dispute that the energy consumption provided by the respondent to the premises of the writ petitioner has been inspected by the competent and technical officer occupying the rank of an ssistant Divisional Engineer on 23.10.2000 at 12.10 hours and he has found the right side seal of the meter cover was missing. This fact is not in dispute. The contention of the writ petitioner is that the damage that was caused to the cover of the electric meter is not intentional but purely accidental and that had occasioned while maintenance and upkeep works were in progress. Whether the damage occasioned accidentally or by design, one cannot seriously consider the same in a writ petition, as it is a pure question of fact determination of which requires collection of evidence and that cannot be done in a writ proceedings. The fact remains that after lot of technical study and taking into account all relevant data such as the average consumption of electric energy by the writ petitioner prior to October 1999 which would reveal consumption on an average of 100 units of electrical energy per month, both the Divisional Engineer and the Superintending Engineer while making the final assessment proceedings and while deciding the appeal have calculated at the same rate. They have therefore departed from the normal procedure adopted by the Asst. Divisional Engineer at the first instance in his show cause notice dt. 18.10.2001 wherein the calculations have proceeded based upon the total connected load demand at 1.28 Kilo Wtts., Since the Divisional Engineer in his final assessment and the appellate authority has also taken a reasonably realistic figure of 100 units of average consumption by the petitioner for the period preceding October 1999, I cannot find fault with the assessment made by the Divisional Engineer, which was confirmed by the Appellate Authority, the Superintending Engineer in this regard. This exercise appears fair and reasonable. Hence, I do not find that this one such case where power has been exercised unfairly. However, the fact remains that the writ petitioner has paid up the compounding fee of Rs. 8,000/- on 16.11.2000. Therefore, she cannot be proceeded any further for the offence said to have been committed by her. This apart, the writ petitioner has paid a sum of Rs. 6,304/- and a further sum of Rs. 6,203.25 paisa on 22.11.2000 and 26.12.2000 respectively towards the provisional assessment of energy alleged to have been pilfered. Admittedly, this amount is much more than the final assessment amount of Rs. 5094/- plus Rs. 50/- towards Supervision charges plus Rs. 50/- towards reconnection charges. The respondent authorities are not justified in collecting more money from the writ petitioner than the final assessment amount held due and payable by the writ petitioner. Hence, the amount paid by the writ petitioner in excess of the final assessment amount will have to be adjusted against the future monthly consumption charges. Therefore, the writ petitioner will produce necessary proof before the respondent authorities on or before 31.12.2009 about the factum of payment of more money, as stated supra. Upon verification of the records and accounts maintained by the respondents, the excess amount than what has been determined as due and payable by the Divisional Engineer through the final assessment proceedings dt. 8.4.2002, shall be given credit to and the same is liable to be adjusted in monthly electric energy consumption charges payable by the writ petitioner from the month of December 2009 onwards. Till such time, the excess amount is fully adjusted, the writ petitioner is not liable to pay any amount towards current consumption charges to the respondents. With this, the writ petitions stands disposed of. No order as to costs. ____________________________ NOOTY RAMAMOHANA RAO,J 8.12.2009. Krb. THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 20919 of 2002. Dated: 8.12.2009.