Partly allowed

Syed Ajeem, v. The Central Power Distribution Company of A.P. Ltd.

Telangana HC18 Mar 2014WP/1058/2010

Case brief

AI extract

What is this about?

This common order disposed of five writ petitions challenging final assessment and disconnection orders regarding unauthorized electricity use and theft. The court applied precedents to distinguish Section 126 (unauthorized use) from Section 135 (theft), dismissing the petition in one case where theft was alleged, allowing another where the power supply of innocent flat owners was disconnected, an

What did the court decide?

Power to innocent flat owners restored; W.P.No.3021 dismissed; W.P.No.3696 allowed; W.P.No.14780 dismissed; W.P.No.1058 allowed with liberty to proceed under Section 135.

Syed Ajeem, Vs The Central Power Distribution Company… — Consumer Protection | Telangana HC (2014)

¶1

*** THE HON’BLE SRI JUSTICE A.RAMALINGESWARA RAO**

¶2

+ WRIT PETITION Nos.5422 of 2004, 3021, 3696, 14780 of 2005 and 1058 of 2010

¶3

% 18—03—2014

¶4

# Smt.M.Varalakshmi and others

¶5

…Petitioners vs.

¶6

$ The Superintending Engineer (Assessments), Eastern Power Distribution Co. of Andhra Pradesh Limited, Vidyt Sakha Compound, Ganjipet Junction, Visakhapatnam and others

¶7

… Respondents

¶8

!Counsel for the Petitioner : Sri K.Raghuveer Reddy ^Counsel for the Respondents : Sri P.Anand Seshu S.C. for APCPDCL

¶9

<Gist :

¶10

>Head Note :

¶11

? Cases referred 1 (2012) 2 SCC 108 2 (2003) 7 SCC 185 3 (1995) 4 SCC 320 4 (1998) 4 SCC 470 5 2007 (4) ALD 564 (FB) 6 2006 (4) ALD 835 7 2007 (4) ALT 497

¶12

HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO

¶13

WRIT PETITION Nos.5422 of 2004, 3021, 3696, 14780 of 2005 and 1058 of 2010

¶14

COMMON ORDER:

¶15

Heard the learned counsel for petitioner in all the cases and the learned Standing Counsel for respondents in all the cases.

¶16

2. These writ petitions are disposed of by a common order in view of the common issue involved in them.

¶17

W.P.No.5422 of 2004:

¶18

3. The petitioner is a consumer of electricity service connection bearing No.7065 under category-II at Tadepalligudem. The premises consisting of shops in ground floor and also first floor. Above those shops, one lodge is being run with a separate service connection bearing No.7065 under category-II and service connection No.12935 under category-II belongs to the shops. While so, the respondents inspected the premises of the petitioner on 05.11.2003 when the

¶19

lodge was being run by the lessee and basing on the said inspection, power supply was disconnected and an order was passed on 27.12.2003 by the second respondent stating that there was pilferage of energy and final assessment was made directing the petitioner to pay an amount of Rs.3,95,031/-. The petitioner submitted a detailed representation on 20.02.2004 and when no action was taken, she filed an appeal before the first respondent questioning the order passed by the second respondent. Pending appeal, she deposited an amount of Rs.50,000/-, but the appeal was not entertained on the ground that she did not pay the requisite 1/3^rd amount as stipulated under Section 127 of the Electricity Act, 2003 (for short, the Act). Challenging the final assessment made by the second respondent, the present writ petition was filed.

¶20

4. A counter-affidavit was filed on behalf of the respondents stating that during the inspection, it was noticed that the consumer had illegally and unauthorizedly looped one of the incoming phase wires of three phase before coming to the meter and connected directly to the loads situated in seven shops in the ground floor and one of the rooms in the lodge in the first floor with the means of 2 numbers black flexible works and thus not allowing the meter to record the actual consumption. A notice was issued to the petitioner on 06.11.2003 by the Assistant Divisional Engineer and subsequently the second respondent served a show cause notice on 07.11.2003. The petitioner submitted her explanation and after considering the same, a final assessment order was passed on 27.12.2003. Against the same, an appeal was filed before the first respondent on 20.02.2004 and it was received on 25.02.2004 and the registration of the appeal was informed to the petitioner on 23.03.2004. It is also stated in the counter that it is not correct to state that the appeal was not entertained.

¶21

W.P.No.3021 of 2005:

¶22

5. The petitioner was a Secretary of Alraheem Flat Owners Welfare Society located at Saidabad, Hyderabad, during 2004. It is his case that initially an assessment notice was issued on 05.07.2004 demanding an amount of Rs.1,75,656/- for the whole complex. Thereupon, on approaching the first respondent, the petitioner was directed to pay an amount of Rs.10,000/- towards compounding fee and the power was restored after paying the amount and the matter was pending. While so, the first respondent, with the collusion of the second respondent with whom the petitioner was not having good terms, had disconnected power supply to the flat of the petitioner instead of disconnecting power supply to the whole complex. The service connection to the flat of the petitioner is SC.No.P.3-21946, where as the number of the service connection to the complex is SC.No.18979. It is his further case that the alleged pilferage relates to the complex and not belongs to his flat. In the subsequent election, the third respondent was elected as the Secretary and action had to be taken against him only, but not against the petitioner. Challenging the action of the first respondent in disconnecting the power supply to the flat of the petitioner, the present writ petition was filed.

¶23

W.P.No.3696 of 2005:

¶24

6. The 16 flat owners of Alraheem Flat Owners Welfare Society located at Saidabad, Hyderabad, filed the present writ petition arraying the petitioner in W.P.No.3021 of 2005 (erstwhile Secretary) as fourth respondent. It is their case that at the time of purchasing the flats, different individual meters were fixed. An inspection was conducted in respect of common meter bearing No.P3-18979 and it was found that the meter disc was not rotating on consumer load and on further inspection, it was

¶25

found that on one end, black colour thread tied wooden stick of length about 3½” inserted through a hole made on the top of the meter to stop the rotation of the meter disc. Accordingly, provisional assessment was made and the loss was assessed at Rs.1,75,656/- and the fourth respondent was asked to pay Rs.87,828/- towards 50% of the initial assessment amount. The power supply to the common meter was disconnected. Apart from disconnection, a criminal case was registered in Crime No.1892 of 2004 on the file of the Court of XII Metropolitan Magistrate, Nampally, Hyderabad and the fourth respondent was remanded to judicial custody on 06.07.2004. Power supply was restored on payment of Rs.10,000/- as first instalment by the fourth respondent. Final assessment order No.DEA/I/HYD/DAT.32707/D.No.10901 was passed on 15.12.2004 determining the value of misused energy at Rs.1,49,061/-. Though the fourth respondent received the final assessment order, he did not file any objections and did not file any appeal also before the second respondent.

¶26

7. It is the further case of petitioners that subsequently, they submitted a representation to the second respondent regarding the tampering done by the fourth respondent stating that they have nothing to do with the same. Since the common meter was for the purpose of maintaining lift, common staircase and water pumping, the average consumption would be amounted to Rs.2,000/per month and the determination made by the third respondent was without any basis. Since they were contributing their share of charges and the fourth respondent has been collecting the amounts and paying the electricity bills for the common meter, the service connection of the petitioners should not be disconnected. It is their further case that assessment has to be done as per Section 126 of the Act and no such procedure was followed in respect of the petitioners. The provisional assessment notice was served on the fourth respondent who seems to have given undertaking to the respondents that he shall pay the amount as mentioned in the undertaking dated 12.07.2004. If the fourth respondent committed default, his service connection only should be disconnected, but not that of the petitioners. Hence, the notice issued by the third respondent on 01.02.2005 directing to disconnect all the link services was without jurisdiction.

¶27

8. A counter-affidavit filed on behalf of the respondents stating that the petitioners’ apartment building was inspected on 01.07.2004 in the presence of the fourth respondent and it was found that the meter disc was not rotating in accordance with the connected load. In pursuance of the inspection notes, the provisional assessment notice was issued vide letter No.ADE/DXXII/C.VIII/D.NO.339 dated 05.07.2004 to the apartment, wherein the value of the energy pilfered was provisionally estimated at Rs.1,75,656/- and it was stated that in order to continue the power supply, 50% of the amount has to be paid. The fourth respondent submitted a representation on 12.07.2004 seeking payment of instalments for the 50% of the amount. The Chief General Manager (Commercial) had granted four instalments and an amount of Rs.10,000/- towards first instalment was paid and the remaining instalments were not paid. The fourth respondent also paid the compounding fee of Rs.10,000/-. The third respondent issued a show cause notice on 31.08.2004 and an opportunity of personal hearing was accorded on 17.11.2004, but none appeared. In those circumstances, final assessment order dated 15.12.2004 was passed fixing the value of energy pilfered at Rs.1,49,061 and supervision charges and reconnection charges of Rs.50/- each. When the final assessment amount was not paid by the petitioners, a notice vide letter No.AAE/OP/SEC.82/F LINK SERVICE/D.NO. 283/05 dated 01.02.2005 was issued informing to the petitioners that in default of clearing the dues with regard to the common service connection, their

¶28

individual service connections would be disconnected. The petitioners, after receiving the said notices, submitted a representation to the second respondent, but failed to comply with the precondition of depositing 1/3^rd of the finally assessed amount.

¶29

9. It is the case of the respondents that all the petitioners are liable jointly as owners of the individual flats and the fourth respondent alone is not liable, as it is their duty to see that no malpractice takes place with regard to the common utilities. The respondents have authority to disconnect the link service connection as per Condition No.42.3(d) of the Terms and Conditions of Supply. Since a notice was served on the fourth respondent, the petitioners cannot contend that no individual notices were served on them. The respondents ultimately sought for dismissal of the writ petition.

¶30

W.P.No.14780 of 2005:

¶31

10. The petitioner was a lessee of small nut trading rice mill. It was having L.T. service connection bearing No.41 in the name of the owner of the mill. The service connection of the petitioner was inspected periodically and there was no grievance against the same. While so, on 23.12.2004 an inspection took place in pursuance of which the third respondent issued a provisional notice in letter No.ADE/O/ITDA/SMPT/D.No.708/04 dated 30.12.2004 alleging certain incriminating points with regard to the said service connection. Based on the same, the third respondent issued a provisional assessment notice alleging pilferage at Rs.2,52,021/- and directed the petitioner to pay 50% of the said amount. While making the assessment, the third respondent took 12 months period and applied the penal rate at Rs.11.25 ps. per unit which is twice the normal tariff. The said notice was issued under Condition No.39 of the repealed Terms and Conditions of Supply. Challenging the same, the petitioner filed W.P.No.662 of 2005 and the same was allowed on 25.02.2005 directing the respondents to continue the power supply to the petitioner without insisting on payment of any amount shown in the order of provisional assessment. Thereafter, the second respondent passed final assessment order in proceedings No.SAT/10378/SE/A/VSP/SKL/D.SKL/SMPT/PF. 804/D.No.3837 dated 30.04.2005. The said order was also passed under Condition No.39 of the repealed Terms and Conditions of Supply. Challenging the same, the present writ petition was filed.

¶32

11. A counter-affidavit was filed stating that the petitioner was having a trading rice mill with a contract load of 17 HP + 200W with service connection No.41, Category-III at Lumburu Village. On 23.12.2004 when the connection was inspected, it was observed by the Inspection Officer that the incoming ‘Y’ phase black colour service wire was tapped just before the service pipe with blue colour wire of length about 15 feet. The incoming ‘B’ phase black colour service wire was tapped just before the service pipe with black and green colour jointed wire of length about 13.5 feet and directly connected to the respective load to cut out. Hence, the supply was directly being utilized without recording in the meter. Thus, the consumer committed the pilferage of energy by bypassing the meter. The assessment notice was issued for Rs.2,51,021/- and requested to pay 50% of the assessed amount Rs.1,25,511/-, pending enquiry. The power supply was restored pursuant to the orders of this Court.

¶33

W.P.No.1058 of 2010:

¶34

12. The petitioner is the owner of a small house situated at HB Nagar, Chandrayanagutta, Hyderabad bearing house No.18-12-419/A/81/82. He was having a service connection bearing No.V3015122 under L.T.Category-I in the name of his mother, who died. An inspection was conducted on 23.12.2009, in pursuance of which, the second respondent issued a provisional assessment notice in letter No.ADE/OP/F’Numa SD-I/F-th’ft/D.No.890, dated 23.12.2009, alleging certain incriminating points about the service connection. The second respondent provisionally assessed the value of the said to have been pilfered at Rs.35,009/- and requested the petitioner to pay 50% of the said sum pending determination of civil liability by the appropriate Court under Section 154(5) of the Act. In the notice, it was stated that the petitioner was guilty of theft of electricity under Section 135 of the Act. Challenging the said provisional assessment notice dated 23.12.2009, the present petition was filed.

¶35

13. These writ petitions raise questions relating to the procedure for unauthorised use of energy or theft of energy and hence a survey of the provisions relating thereto is done. Initially the electricity supply was governed by the provisions of Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948. The A.P.State Electricity Board (APSEB) was created by the provisions of the Electricity (Supply) Act, 1948. Later on, in view of the responsibility undertaken by various States, the APSEB was unburdened to form separate generation, transmission and distribution companies through transfer schemes for the transfer of assessing staff into successor companies. The said process was undertaken by A.P.Electricity Reforms Act, 1998. The said enactment granted a provisional license to A.P.TRANSCO for distribution and retail supply of electricity in the entire State with effect from 01.02.1999. As per the said Terms of License, the Terms and Conditions of Supply of erstwhile APSEB continued to be applied to the consumers till the A.P.TRANSCO prepared its conditions of supply.

¶36

14. Condition No.39 of erstwhile APSEB Terms and Conditions of Supply notified in B.P.Ms.No.690 dated 17-9-1975 as amended upto 30-1-1999 dealt with malpractices including pilferage of energy. Detailed procedure was provided in cases of malpractice and pilferage of energy. The right of appeal is also provided therein. Later on, the Act was enacted repealing the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948. The proviso to Section 61 of the Act stated that the terms and conditions for determination of tariff shall continue to apply for a period of one year or until terms and conditions for tariff are specified under the said section, whichever is earlier. Thus the Terms and Conditions of Supply of the erstwhile APSEB continued to apply for a period of one year i.e., from 10.06.2003 to 09.06.2004. Since no new terms and conditions were framed, the A.P.Electricity Regulatory Commission (Transitory Provisions for Determination of Tariff) Regulation, 2004 was made under Section 61 of the Act stating that the regulations notified by the Commission from time to time under the provisions of the A.P.Electricity Reforms Act, 1998 shall continue to apply as regulations under the Act and remain in force till appropriate new regulations were notified by the Commission under the Act. The A.P.Electricity Regulatory Commission approved separate Terms and Conditions of Supply on 06.01.2005 and they came into force with effect from 03.03.2006. Clause No.9 dealt with unauthorised use of electricity, whereas Clause No.10 dealt with theft of electricity. Since Section 126 of the Act deals with pilferage/unauthorised use of electricity and Section 135 of the Act deals with theft of electricity, separate procedures were prescribed in the said clauses. A provision is

¶37

made in Clause 10(4) for recovery of revenue loss which is made subject to the determination of civil liability under Clause 10(6) read with Section 154 of the Act.

¶38

15. Section 50 of the Act provides for specification of Electricity Supply Code by the State Commission. When the distribution licensees expressed difficulties in controlling theft of electricity and taking appropriate action in that regard, the Government of India passed Electricity (Removal of Difficulties) Order, 2005 providing for the methods to control theft in the Electricity Supply Code. The A.P.Electricity Regulatory Commission (Electricity Supply Code) Regulation, 2004 was made and it is applicable to all distribution licensees in their respective licensed areas in the State of A.P. The said Code deals with the recovery of electricity charges from consumers, electricity bills, disconnection of service, restoration of supply of electricity, tampering, distress or damage to electrical lines or meter and measures to be taken by distribution licensees for control of theft of electricity. The required measures for control of theft of electricity were added under Clause 7A by making an amendment to the Code on 04.03.2006 and it deals with theft of electricity. It broadly says that the licensee shall follow the procedure approved by the Commission in the Terms and Conditions of Supply.

¶39

16. The Hon’ble Supreme Court in Southern Electricity Supply Co. of Orissa Ltd. V. Sri Seetaram Rice Mill^[1] , examined the scope and distinction between Sections 126 and 135 of the Act and the position was settled. In the said decision, the Hon’ble Supreme Court examined the issue of the case of consumer who consumes electricity in excess of the maximum of the contracted load in the light of Section 126, its scope and interpretation. While examining the said issue, the Hon’ble Supreme Court also considered the distinction between Sections 126 and 135 and held that the contents of Sections 126 and 135 are distinct and different provisions which operate in different fields and have no common premise in law. Sections 126 and 127 read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 and ultimately, the Hon’ble Supreme Court held as follows:

¶40

“29. Thus, it would be clear that the expression “unauthorised use of electricity” under Section 126 of the 2003 Act deals with cases of unauthorised use, even in the absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorisation, like providing for a direct connection bypassing the installed meter, the case would fall under Section 135 of the Act.”

¶41

17. While examining the scope of Section 126 of the Act, the Hon’ble Supreme Court held as follows:

¶42

“37. Wherever the assessing officer arrives at the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if such period cannot be ascertained, it shall be limited to a period of 12 months immediately preceding the date of inspection and the assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of service specified under these provisions. This computation has to be taken in terms of Sections 126(5), 126(6) and 127 of the 2003 Act. The complete procedure is provided under these sections. Right from the initiation of the proceedings till preferring of an appeal against the final order of assessment and termination thereof, as such, it is a complete code in itself.”

¶43

18. After considering the scope and content of Section 126 of the Act, the Hon’ble Supreme Court

¶44

held that some of the illustratively stated circumstances of “unauthorised use” in the section cannot be construed as exhaustive. The “unauthorised use of electricity” would mean what is stated under that Explanation, as well as such other unauthorised user, which is squarely in violation of the statutory or contractual provisions. It was further held that it is undisputable that the electricity supplied to a consumer is restricted and controlled by the Terms and Conditions of Supply and the Regulations framed under the provisions of the Act. The consumption of electricity in excess of the sanctioned/connected load shall be an “unauthorised use of electricity” in terms of Section 126 and it was held that overdrawal of electricity amounts to breach of the terms and conditions of the contract and the statutory conditions, besides such overdrawal being prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even increasing voltage fluctuations.

¶45

19. The Hon’ble Supreme Court relied on the decisions in Bhilai Rerollers V. M.P.Electricity Boar d^[2] and Orissa SEB V. IPI Steel Ltd.^[3] and held that the power to impose penal charges or disconnect electricity has been held to be not violative of Article 14 of the Constitution of India. The expression “malpractices” does not find mention in the provisions under the Act but as a term coined by judicial pronouncements. Thus the expression “malpractices” has to be construed in its proper perspective and normally may not amount to theft of electricity as contemplated under Section 135 of the Act. Such acts/malpractices would fall within the mischief of unauthorised use of electricity as stipulated under Section 126. Cases of pilferage of electricity by adopting malpractices which patently may not be a theft would be the cases that would fall within the jurisdiction of the Board in furtherance to the terms and conditions of supply. For this proposition,

¶46

the Hon’ble Supreme Court relied on Hyderabad Vanaspathi Ltd. V.A.P.SE B^[4] .

¶47

20. Dealing with the procedure prescribed, it was held that the person “consumer” has to be served with a notice inviting him to file objections, if any, within the time stipulated in Section 126(3) of the Act and the assessing officer is required to pass final orders within 30 days from the date of service of such order of provisional assessment. If the consumer does not pay the provisional assessment amount and file objections, then after affording an opportunity to the consumer, the assessing officer shall assess the amount and pass an order of final assessment under Section 126(5). The assessment under Section 126(6) shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5). A right of appeal is provided under Section 127. The said appeal has to be filed only against the final order passed under Section 126 that too within 30 days of the said order and no appeal shall lie against notice or provisional order of assessment as may be made by the assessing officer.

¶48

21. The Hon’ble Supreme Court ultimately culled out the compliance in para 87 as follows: “87. Having dealt with and answered determinatively the questions framed in the judgment, we consider it necessary to precisely record the conclusions of our judgment which are as follows:

¶49

1. Wherever the consumer commits the breach of the terms of the Agreement, Regulations and the provisions of the Act by consuming electricity in excess of the sanctioned and connected load, such consumer would be “in blame and under liability” within the ambit and scope of Section 126 of the 2003 Act.

¶50

2. The expression “unauthorised use of electricity means” as appearing in Section 126 of the 2003 Act is an expression of wider connotation and hast to be construed purposively in contrast to contextual interpretation while keeping in mind the object and purpose of the Act. The cases of excess load

¶51

consumption that the connected load inter alia would fall under Explanation (b)(iv) to Section 126 of the 2003 Act, besides it being in violation of Regulations 82 and 106 of the Regulations and terms of the Agreement.

¶52

3. In view of the language of Section 127 of the 2003 Act, only a final order of assessment passed under Section 126(3) is an order appealable under Section 127 and a notice-cum-provisional assessment made under Section 126(2) is not appealable.

¶53

4. Thus, the High Court should normally decline to interfere in a final order of assessment passed by the assessing officer in terms of Section 126(3) of the 2003 Act in exercise of its jurisdiction under Article 226 of the Constitution of India.

¶54

5. The High Court did not commit any error of jurisdiction in entertaining the writ petition against the order raising a jurisdictional challenge to the notice/provisional assessment order dated 25-7-2009. However, the High Court transgressed its jurisdictional limitations while travelling into the exclusive domain of the assessing officer relating to passing of an order of assessment and determining the factual controversy of the case.

¶55

6. The High Court having dealt with the jurisdictional issue, the appropriate course of action would have been to remand the matter to the assessing authority by directing the consumer to file his objection, if any, as contemplated under Section 126(3) and require the authority to pass a final order of assessment as contemplated under Section 126(5) of the 2003 Act in accordance with law.”

¶56

22. A full Bench of this Court also considered the scope of the said provisions in K.Trinadha

¶57

Reddy V. APEPDCD Ltd., Rajahmundr y^[5] , but it answered the reference with regard to power/authority to disconnect supply of electricity for pilferage/unauthorised use in relation to those provisions and it answered the reference as follows:

¶58

“25………

¶59

We answer the reference declaring that:

¶60

1. As stipulated by the proviso to Section 61 of the Electricity Act, 2003, the Regulations made under Section 49 of the Electricity (Supply) Act, and notified in B.P. Ms.No.690 dated 17.9.1975, continued to operate for a period of one year after the appointed date i.e., from 10.6.2003 till 9.6.2004 and not thereafter.

¶61

2. On or after 16.6.2004, the power/authority to disconnect supply of electricity, for pilferage/unauthorized use, can no longer be traced to Regulation 39 of B.P.Ms.No.690 dated 17.9.1975. 3. Regulation 7-A of the Electricity Supply Code, which came into force on 04-03-2006, specifically provides for disconnection of power supply for theft or unauthorized use of electricity.

¶62

4. In the interregnum between 10-06-2004 and 04-03-2006 there is no Statutory Provision, Rule, Regulation or Order which explicitly confers authority on the distribution licensees to disconnect supply of electricity for pilferage or unauthorized use.

¶63

5. The power/authority to disconnect/ discontinue supply of electricity for theft, pilferage or unauthorized use is incidental and ancillary to the power of Inspection provided for under Sections 126 and 135 of the Electricity Act, 2003.

¶64

6. This incidental and ancillary power to disconnect/discontinue supply of electricity, for pilferage or unauthorized use, can be exercised only as an interim measure, from the date of Inspection till final assessment orders are passed under Section 126(3) of the Electricity Act, 2003 and, in case any amount is required to be deposited pursuant thereto, till such amount is deposited by the consumer or the order of final assessment is set aside in appeal under Section 127 of the Act.”

¶65

But the Full Bench failed to notice the A.P.Electricity Regulatory Commission (Transitory Provisions for Determination of Tariff) Regulation, 2004 and hence observed that in the interregnum between 10-06-2004 and 04-03-2006 there is no Statutory Provision, Rule, Regulation or Order which explicitly confers authority on the distribution licensees to disconnect supply of electricity for pilferage or unauthorized use in para 4 thereof.

¶66

23. A learned Single Judge of this Court in Chairman and MD, APCPDCL, Hyd. V. P.C.Dhoot

¶67

and Sons, Nalgond a^[6] considered the scope of Sections 153, 154, 155 and 145 of the Act and held that sub-section (6) of Section 154 of the Act defines civil liability as loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an

¶68

offence referred to in Sections 135 to 139 of the Act and ultimately held as follows:

¶69

“23. Having regard to the definition of civil liability under the Explanation to sub-section (6) of Section 154 of the Act, it is clear that the word civil liability under sub-section (5) of Section 154 refers to civil liability due to the commission of offences referred to in Sections 135 to 139 alone. In other words, the civil liability shall be confined only in relation to the theft of electricity; theft of electric lines and material; dishonestly receiving stolen property; interference with meters or works of licensee; and negligently causing the electricity to be wasted. There is absolutely no reason to hold that the jurisdiction of the Special Court for determination of the civil liability can be extended to the matters arising out of other provisions of the Act, except Sections 135 to 139.”

¶70

24. While negativing the contention that in view of Section 145 of the Act in respect of the matters not covered by the jurisdiction of the Special Court the consumer was left with no other remedy under the Act, it was held that with regard to civil liability arising out of other provision, it is always open to the aggrieved party to maintain a suit in a civil Court having jurisdiction.

¶71

25. The learned Single Judge of this Court in Sri Tirumala Modern Rice Mill V. Transmission Corporation of A.P. Ltd.^[7] examined the scope of Sections 127(4) and (5) of the Act and held that while assessing the value of pilfered energy, the respondents are bound to restrict it for the period of three months/six months, as the case may be. The learned Single Judge further held that if the consumer pays entire provisional assessment amount, he is to be discharged from further liability, but if he pays 50% of the amount indicated in the provisional assessment order would presuppose that he intends to file objections and invite a final assessment order as contemplated under Section 126(3) of the Act. But, the observations of the learned Single Judge to the effect that a careful reading of Section 135 and Explanation to Section 126 would show that some of the unauthorised use of electricity also amounts to theft and in the given case theft itself amounts to unauthorised use of electricity are contrary to the scheme of the Act and the decision in Sri Seetaram Rice Mill’s case (1 supra).

¶72

RELIEF:

¶73

26. With regard to relief in W.P.No.5422 of 2004 is concerned, in view of the pendency of appeal before the second respondent, the second respondent is directed to dispose of the same within a period of three months from the date of receipt of a copy of this order without insisting for depositing of 1/3^rd amount in view of the pendency of the case in this court for all these years. Accordingly, the writ petition is disposed of.

¶74

27. With regard to relief in W.P.Nos.3021 of 2005 and 3696 of 2005 is concerned, the respondents have issued a notice to the fourth respondent in W.P.No.3696/2005 provisionally estimating the loss of energy at Rs.1,75,656/- and he was asked to pay Rs.87,828/- towards 50% of the initial assessment amount. He submitted a representation on 12.07.2004 seeking instalment for payment of 50% of the amount. He was granted 4 instalments and an amount of Rs.10,000/- was paid towards first instalment and the power was restored and the remaining instalments were not paid. He paid compounding fee of Rs.10,000/-. The power supply to the common meter was disconnected and a criminal case was registered in Crime No.1892 of 2004 on the file of XII Metropolitan Magistrate, Nampally, Hyderabad against the fourth respondent in W.P.No.3696 of 2005. Thereafter, a final assessment order was passed on 15.12.2004 fixing the value of pilfered energy at Rs.1,49,061/-. When the final assessment amount was not paid, a notice was served to the third respondent in W.P.No.3021/2005, who is the present Secretary, threatening to disconnect

¶75

the supply to the individual flat owners. Thus, it was treated as a case of theft coming under Section 135 of the Act and the civil liability has to be determined under Section 154(5) of the Act. Though the respondents have power under Clause 42.3(d) of the Terms and Conditions of Supply, in view of the peculiar facts of the case where the erstwhile Secretary of the Association admittedly involved in the theft, the action against other Flat Owners is not warranted. In the circumstances, the respondents are directed to take steps for recovering the amount ultimately found to be due from the 4^th respondent in W.P.No.3696 of 2005 after determination of Section 154(5) of the Act. Till such time, the power connection of the individual flat owners except Flat No.501 (SC No.P321946) shall not be disconnected in connection with the said event. Accordingly, W.P.No.3021 of 2005 is dismissed and W.P.No.3696 of 2005 is allowed.

¶76

28. With regard to relief in W.P.No.14780 of 2005 is concerned, the facts in the case disclose that the writ petition was filed challenging the final assessment order dated 30.04.2005. In view of the existence of provision for appeal under Section 127 of the Act, the writ petition is dismissed directing the petitioner to avail the remedy of appeal.

¶77

29. With regard to relief in W.P.No.1058 of 2010 is concerned, in view of the allegation of theft under Section 135 of the Act, the provisional assessment notice dated 23.12.2009 is set aside and the respondents are given liberty to take proceedings under Section 135 of the Act and determine the civil liability by invoking the provisions of Section 154 (5) of the Act. Accordingly, the writ petition is allowed to the extent indicated above.

¶78

30. There shall be no order as to costs in all these writ petitions. Miscellaneous petitions pending, if any in these writ petitions, shall stand closed.

¶79

______________________________ A.RAMALINGESWARA RAO, J

¶80

Date: 18.03.2014 L.R.Copy to be marked B/o. TJMR

¶81

[1] (2012) 2 SCC 108 [2] (2003) 7 SCC 185 [3] (1995) 4 SCC 320 [4] (1998) 4 SCC 470 [5] 2007 (4) ALD 564 (FB) [6] 2006 (4) ALD 835 [7] 2007 (4) ALT 497

Syed Ajeem, v. The Central Power Distribution Company of A.P. Ltd.

Case brief

What is this about?

What did the court decide?

Syed Ajeem, v. The Central Power Distribution Company of A.P. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. G.Dhanalaxmi Vs The Government of A.P.

A. Vijaya Rama Rao, Vs Government of Andhra Pradesh

Basetti Amrutha Bai, Vs Municipal Council, Jagtial, District Karimnagar, rep.by its

M/s. Vijayalakshmi Youth Association Rice Mill, Vs The Eastern Distribution Company of A.P. Limited

Mrs.v.Sujata Rao, Vs State of Andhra Pradesh

Gatreddy Jagannadham Vs The State of Andhra Pradesh, rep.by its Principal