Tirumala Modern vs Transmision Corpn. , of A. P. , Ltd.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(AP) 363

2007(2) L.S. 7
IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH : : AT HYDERABAD
Present:
The Hon’ble Mr. Justice
V.V.S. Rao
Sri Tirumala Modern
Rice Mill ..Petitioner
Vs.
Transmision Corpn.,
of A.P., Ltd., &
Ors., ..Respondents
W.P.Nos.22023,22117 & 23865/06
Date:2-4-2007
Mr.P. Lakshma Reddy, Advocate for the Petitioner in all WPs.
Mr.V. Ajaykumar, SC for APTRANSCO, Advocate for the Respondent in all W.Ps.

Headnote:ELECTRICITY ACT, 2003,Secs. 126, 135,153 & 154 - Petitioner’s L.T service connection disconnected for alleged pilferage of energy and case registered u/Sec.135 of Act - Petitioner paid 50 percent of provisionally assessed value of energy allegedly pilfered - Petitioner contends that provisional assessment order is contrary to Sec.126 (5) of Act and that action of registering crime is illegal and unconstitutional, as well as contrary to Sec.126 (4) of Act and that assessment ought to have calculated amounts for maximum period of six months only as per Sec.126 (5) of Act.
        SEC.126 - INTERPRETATION OF - Sec.154 (5) of Act though in different context would certainly furnished a key to understand Sec.126 (5) - A proper reading of Sec.126 (5) would show that it is possible for assessing Officer regarding period of theft, same shall be criteria for assessing value of pilferred energy - In case such determination of period not possible, Sec.126 (5) lays down that irrespective of non-availability of data, assessing Officer may presume a period of 3 months of domestic / agricultural services and period of 6 months for other category as period during which consumer unauthorisedly used electricity.
        If during time of inspection or from record available or from history of service connection, inspecting Officer or assessing Officer are of opinion that period during which electricity was unauthorisedly used is more than 3 months or 6 months as case may be, nothing prevents such Officer to take into consideration exact period or inferred period for purpose of calculating value of pilferred energy - Hence it is not possible to accept submission of petitioners that while assessing value of pilferred energy, respondents A.P. Transco are bound to restrict it for period of 3 months or 6 months as case may be.
        A careful reading of Sec.135 and Explanation to Sec.126 would show that some of unauthorised uses of electricity also amount to theft and in a given case theft itself amounts to unauthorised electricity - When once a provisional assessment is made, inference can be drawn that it is falling within scope of “unauthorised use of electricity and not a theft”.
        When provisional assessment order is made and consumer accepts and deposits amount without demur, consumer cannot be subjected to any further liability and no further action can be taken against him - In this case, petitioner admittedly paid 50% of provisional assessment amount and claim benefit of Proviso to Sec.126 (4) of Act and as such, it must be held that petitioner cannot get any benefit out of it - Sec.126 (4) lays down that entire provisionally assessed amount has to be deposited within 7 days of service of order and only in such event consumer is discharged for further liability - Payment of 50% after receipt of provisional assessment order would presuppose that petitioner intends to file objection and invite final assessment order as contemplated u/Sec.126 (3) of Act.
        If consumer pays only 50% of provisional assessed amount so as to obtain reconnection of power supply, it would only indicate state of mind that such consumer is objecting provisional assessment made by provisional assessing authority - Such consumer cannot get benefit u/Sec.126 (4) r/w its proviso - In this case, petitioner not entitled to benefit u/Sec.126 (4) of Act - Final assessing authority is at liberty to pass appropriate orders after obtaining objections from petitioner.

C O M M O N O R D E R

This common order shall dispose of these three writ petitions as question raised and the background of the cases is similar. The respondents in these three writ petitions are also the same.

2. The petitioner in W.P.No.22023 of 2006 is availing electricity supply from the respondents under L.T.Category-III service connection bearing No.7335. The second respondent inspected the petitioner’s premises on 28.09.2006 and found that CT meters and CT chamber seal bit No.A40033 to be in tampered condition. On opening the CT box, it was observed that R-phase CT secondary terminal SI connection is loose and R-phase potential connection at tapping point is loose. There were also other incriminating circumstances. The second respondent came to prima facie conclusion that the petitioner resorted to pilferage of energy. A case under Section 135 of the Electricity Act, 2003 (Electricity Act, for brevity) was registered and power connection was disconnected. Provisional value of electricity pilfered was assessed at Rs.5,64,429/- including electricity duty and supervision charges and the petitioner was asked to approach the Assistant Accounts Officer, Electricity Revenue Officer (ERO) for restoration of supply by paying fifty per cent of the provisional assessment value. He was also informed that necessary proceedings would be initiated for determining civil liability under Section 154 of the Electricity Act.

3. In other two cases also, the facts are similar though the amounts demanded vary. In all the cases, criminal cases were registered and the petitioners are informed that the cases would be referred to appropriate special Court for determination of civil liability. In all the three cases, FIR was also lodged with the third respondent, who registered crime under Section 137 of the Electricity Act. It is also the case of the petitioners that after receiving provisional assessment notices, they paid 50 per cent of the provisionally assessed value of the energy allegedly pilfered and therefore, no further action whatsoever can be taken against them.

4. The petitioners seek a writ of Mandamus declaring the provisional assessment order/notice insofar as it is contrary to Section 126(5) of the Electricity Act as illegal and arbitrary. They also seek a further declaration that the action of the third respondent in registering crime as illegal and unconstitutional as well as contrary to the provisions of Sections 126(4) of the Electricity Act. Their main contention is that while assessing the value of the electricity allegedly pilfered, the second respondent ought to have calculated the amounts for maximum period of six months only as per Section 126(5) of the Electricity Act. It is also their further contention that when the consumer accepts the provisional assessment and pays the amounts without any demur, further action for criminal as well as civil liability cannot be taken against the consumer as per the proviso under sub-section (4) of Section 126 of the Electricity Act.

5. The second respondent filed counter affidavit in all the three matters separately. It is only necessary to refer to the counter in W. P. No.22023 of 2006. It is stated in the counter that after receiving the provisional assessment order, the petitioner deposited 50% , of the provisional assessment amount. However, it is denied that Section 126 of the Electricity Act is applicable even in the case of dishonest abstraction of energy. Section 153(1) of the Electricity Act provides for fixing the civil liability as well as criminal liability under Section 135 of the Act. A reference is made to the Terms and Conditions of Supply framed by Northern Power Distribution Company Limited (NPDCL) especially condition No.10 which purportedly requires the consumer to deposit 50% of the provisional assessment amount pending adjudication by special Court for fixing civil liability.

6. Learned counsel for the petitioners submits that under Section 126(5) of the E

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