HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No. 13813 OF 2005 DATED 8TH OCTOBER, 2014.
BETWEEN M/s. Kanaka Durga Cable Network, Rep. by its proprietor Kunaparaju Muralikrishnam Raju …..Petitioner And The Superintending Engineer, Assessments Circle, AP Eastern Power Distribution Company Limited, Visakhapatnam and ors.
…..Respondents.
HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No. 13813 OF 2005
ORDER:
Heard the learned Counsel for the petitioner and learned Standing Counsel appearing for the respondents.
The petitioner is a firm and running a cable T.V. network in Chinanidrakolanu village of West Godavari District. The petitioner availed power supply under Category-II vide S.C.No.110 for commercial purpose to run cable TV operations and another service connection vide S.C.No.688 under category-I for domestic purpose. Since the said service connections are situate in a small village, there are severe power cuts and voltage problems and therefore, the petitioner submitted representations to the respondents on 3.1.2004, 27.2.2004, 8.6.2004, 5.7.2004 and 20.7.2004, however, no action has been taken on the said representations. In December, 2003, as there was great pressure and demand from its customers, the petitioner utilized power from S.C.No.688 which was obtained for domestic purpose. While so, on 15.5.2004 the third respondent inspected the premises of the petitioner and found service connection intact. It appears that he (third respondent) obtained signatures of the persons available therein as the proprietor of the petitioner was not available at that time and thereafter issued a provisional assessment notice dated 31.5.2004 and disconnected the power supply alleging that the petitioner was guilty of malpractice and assessed the alleged loss of power supply at Rs.46,686/-.
However, the power supply was restored as the petitioner paid half of the demanded amount i.e. Rs.23,343/- pending final assessment proceedings. The petitioner submitted his objections to the show cause notice dated 31.5.2004 and thereafter the second respondent passed order on 29.11.2004 confirming the amount mentioned in the provisional assessment notice. Challenging the said order, the petitioner preferred an appeal before the first respondent, who dismissed the same confirming the order passed by the first respondent dated 29.11.2004.
The fourth respondent filed a counter affidavit stating that the third respondent inspected the premises of the petitioner on 15.5.2004 and found that the consumer was availing power supply from SC.No.688 under Category-I for cable T.V. purpose and on verification it was found that only commercial (non domestic) load is available for the cable TV operations and that the consumer (the petitioner) is having other service connection vide SC 110 under Category-II intended for cable TV purpose. It was observed that the petitioner was not utilizing power supply for domestic purpose and both service connections were being utilized for commercial purpose. The order passed by the second respondent was confirmed by the first respondent indicating that the alleged loss assessed for a period of twelve months is highly excessive. As per the orders issued by the AP Electricity Regulatory Commission dated 23.3.2004, under Section 26 of the AP Reforms Act special rates chargeable for malpractice cases under all HT and LT categories would be three times the tariff applicable for the purpose for which power is utilized till 19.6.2004 and therefore the petitioner is liable to pay three times on existing tariff rate as was levied by the respondent authorities.
The learned Counsel for the petitioner submits that as per Section 126 (5) of the Electricity Act 2003, if the assessing officer comes to the conclusion that unauthorized use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in cases of domestic and agricultural services, and for a period of six months immediately preceding the date of inspection for all other categories of services unless the onus is rebutted by the consumer. The learned Counsel further submits that the order passed by the second respondent and confirmed by the first respondent did not indicate the period for which the assessment was made.
The learned Standing Counsel for the respondents submits that pursuant to the interim order passed by this Court in the present Writ Petition, the petitioner paid 50% of the demanded amount on 22.08.2005 and the remaining amount in two installments on 29.09.2010 and 25.11.2010 and power supply was also restored and therefore nothing survives for adjudication in the Writ Petition.
The learned Counsel for the petitioner seriously disputed the same and submitted that the payment of the balance amount was pursuant to the threats made by the respondents and that the amount is required to be assessed in terms of Section 126 of the Electricity Act, 2003.
In the light of the aforesaid discussion and In view of non-mentioning of the period of assessment while calculating the quantum of tariff charges, the impugned orders passed by the first and second respondents dated 9.5.2005 and 29.11.2004 respectively are set aside and the matter is remanded to the second respondent for issuing fresh assessment order as required under Section 126 of the Electricity Act,2003 within a period of three months from the date of receipt of a copy of this order. If any amount in excess is received from the petitioner, the same may be adjusted for the future bills.
The Writ Petition is allowed to the extent indicated above.
Miscellaneous petitions pending consideration if any in the Writ Petition shall stand closed. No order as to costs.
JUSTICE A. RAMALINGESWARA RAO DATED 8TH OCTOBER, 2014.
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