IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SECOND DAY OF JANUARY TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.22623 of 2009 Between: M/s.Srinivasa Ice Factory, Plot No.6 8, I.D.A., Mallapur, Rangareddy District, rep., by its Managing Partner, V.S.K. Sivaji ... PETITIONER AND The Central Power Distribution Company of A.P., Limited, rep. by its Managing Director, Mint Compound, Hyderabad and four others ... RESPONDENTS ORDER: This court ordered notice before admission on 27-10-2009 and granted interim direction for a limited period, which is being extended from time to time. 2. Counter-affidavit had been filed by the fourth respondent. 3. Heard the learned counsel on record. 4. The writ petition is filed seeking a writ of Mandamus to declare the order No.CGM/OP/R R Zone/ADE (T)/F.Theft/ D.No.1021/06-07 dated 26-09-2006 of the second respondent as highly illegal, arbitrary, irrational and contrary to the order of this court dated 08-07-2004 in W.P.No.11590 of 2004 and consequently set aside the same and pass such other suitable orders. 5. It is the case of the petitioner that the petitioner is a partnership firm. Initially in the place of Andhra Pradesh, Transco, there was Andhra Pradesh State Electricity Board. The Government of Andhra Pradesh legislated Andhra Pradesh Electricity Reforms Act, 1998, creating the Transmission Corporation of Andhra Pradesh Limited (A.P. Transco) and Generation Corporation of Andhra Pradesh Limited (A.P. Zenco) in the place of the Andhra Pradesh State Electricity Board. The Terms and Conditions of Supply and all the agreements entered into between the consumers and the APSEB are binding between the consumers and the first respondent company, which is a licensee under the provisions of the Electricity Act, 2003. The Government of India enacted the Electricity Act, 2003, thereby repealing the Indian Electricity Act, 1910 and the Electricity Supply Act, 1948. However, under Section 185(2)(d) of the said Act, the Rules made under Section 49(1) of the Electricity Supply Act, 1948 shall continue to have effect until such rules are rescinded or modified as the case may be. By virtue of this provision, the Terms and Conditions of Supply framed by the erstwhile Andhra Pradesh State Electricity Board under Section 49(1) of the Electricity Supply Act, 1948 remain to be in force till new General Terms and Conditions of Supply are framed. 6. It is also stated that petitioner’s service connection was being inspected regularly by the officials of the respondents. Such inspections were conducted till the month of October, 1993, till which time, there was no dispute as to the petitioner’s service connection. Thereafter, on 05-11-1993, the officials of the 1st respondent inspected the petitioner’s factory premises. In pursuance thereto, the 4th respondent issued provisional assessment notices alleging that certain incriminating points as to the petitioner’s service connection. Basing on the same, he provisionally assessed the alleged loss at Rs.2,01,493/- and required the petitioner to pay 50% of the same. Thereafter, the 3rd respondent passed final assessment order No.SEA/HYD/F.SDB- 35/SAH No.9226/ D.No.2738 dated 17-08-2002 by unilaterally enhancing the assessment amount to Rs.5,81,636/-. The said order was passed, basing on Condition No.39.9 of the Terms and Conditions of Supply (rescheduled of the APSEB). As against the same, the petitioner filed an appeal before the 2nd respondent as contemplated under Condition No.39.1.0 of the Terms and Conditions of Supply. 7. It is further stated that thereafter on advice, the petitioner filed W.P.No.11590 of 2004 on the file of this Court challenging the final assessment order of the 3rd respondent and also to declare the appeal filed before the 2nd respondent as not maintainable in view of the fact that by that time Indian Electricity (A.P. Amendment) Act, 2000 came to be passed and that as per Section 49-C(5) of the said Act, the power and jurisdiction to make final assessment i.e., to fix civil liability vests with the jurisdictional tribunal constituted under the said Act. This Court allowed the said writ petition by order dated 08-07-2004 by setting aside final assessment order dated 17-08-2002 passed by the 3rd respondent with a further direction to the respondent to transfer the case to the jurisdictional tribunal. It is also stated that so far the respondents have not acted upon the order passed by this Court by transferring the matter to the jurisdictional special tribunal. 8. It is also stated that on the other hand the 2nd respondent passed order No.CGM/OP/RR Zone/ADE (T)/ F.Theft/D.No.1021/06-07 dated 26-09-2006 by confirming the final assessment order of the 3rd respondent dated 17-08-2002. In this connection, it is relevant to submit that the final assessment order dated 17.08.2002 of the 3rd respondent was set aside by this Court in W.P.no.11590 of 2004. Despite the same, the 2nd respondent illegally and arbitrarily confined the order of the 3rd respondent, which is nonest in the eye of law. In fact, the action of the 2nd respondent in doing so, amounts to deliberate and willful violation of the order of this Court in the above mentioned writ petition. Under those circumstances, the petitioner got issued legal notice dated 14-10-2009 requiring the 2nd respondent to withdraw its order mentioned above. But, despite the same, the 2nd respondent is declined to do so. 9. It is also stated that apart from the above, it is relevant to submit that pursuant to the inspection dated 05.11.1993, the 4th respondent lodged a complaint with the Inspector of Police, Anti Power Theft Station, Rangareddy, which registered a crime under Sections 39 and 44 of the Indian Electricity Act. Later on, the Inspector of Police, APTS, conducted investigation and filed charge sheet before the II Additional Metropolitan Magistrate’s Court, which was taken cognizance in C.C.No.1120/2003. After an elaborate trial, the said case ended in clean acquittal. Further more, this Court directed the respondents to transfer the case to the jurisdictional tribunal as long back as on 08-07-2004. But, so far, the respondents have not taken any interest in the matter. Therefore, by afflux of time, the matter got barred by limitation and therefore, as of now the respondents cannot maintain any case even as to the civil liability. 10. In such circumstances the writ petitioner approached this court and obtained interim direction for a limited period, which is being extended from time to time. 11. In the counter-affidavit of the fourth respondent it is stated that before filing the writ petition the petitioner had issued a legal notice on 14-10-2009 stating that earlier an order had been made by this court to refer the matter to the Tribunal having jurisdiction to adjudicate upon the issue. It is also stated that the second respondent passed the order without having knowledge of the earlier order passed. Immediately on receipt of the said legal notice and on coming to know of the earlier order passed by this court, the order passed in D.No.1021/67/06-07 dated 26-09-2006 had been withdrawn and in this regard a reply notice was also issued to the petitioner on 12-11-2009. 12. In the light of the specific stand taken in the counter-affidavit liberty is given to the respondents to pursue such remedies as already directed by this court, in accordance with law. 13. With the above liberty, the writ petition is allowed to the extent indicated above. There shall be no order as to costs. ___________________ P.S. NARAYANA, J January 22, 2010. Pn THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.22623 of 2009 January 22, 2010