Andhra Pradesh High Court - Amravati
M/S Sri Lakshmi Venkateswara Modern ... vs Eastern Power Distribution Company Of ... on 10 March, 2020
Author: M.Ganga Rao
Bench: M. Ganga Rao
THE HONOURABLE SRI JUSTICE M. GANGA RAO
Writ Petition No.9551 of 2019
ORDER
The petitioner filed this writ petition seeking a writ of mandamus declaring the impugned demand notice, dated 25.06.2019, vide Lr.No. AAO / ERO/SKL/JAO/Sub-ERO/Amv/Mbs/D.No.145/19, demanding the petitioner to pay a sum of Rs.4,16,953/- towards short fall amount levied in respect of petitioner's SC.No.131408C800003546 as illegal, arbitrary, without jurisdiction and in utter violation of principles of natural justice and contrary to the General Terms and Conditions of Supply and to set aside the same.
The petitioner is running a rice mill in the name and style of M/s Sri Lakshmi Venkateswara Modern Rice Mill. The petitioner obtained a LT (Low Tension) power supply connection by the 1st respondent vide SC.No.131408C800003546. By letter, dated 20.06.2019, the 3rd respondent informed the petitioner that an inspection was made by the DE/DPE, Srikakulam, and identified utilisation of additional loads. In the above letter, a reference was made to the letter, dated 08.06.2018. By the above letter, dated 20.06.2019, the petitioner was informed that as he exceeded the contracted load, as per Clause No.12.3.3.2 of the General Terms and Conditions of supply the service shall be billed at the respective HT tariff rates from the consumption month in which the unauthorised additional load is detected. The petitioner was requested to take notice that the petitioner's service will be billed in HT Category - III tariff every month and difference charges will be raised in the bills until the load is regularized and service is finally converted to HT. Thereafter, the impugned demand notice vide letter, dated 25.06.2019, was issued for payment of Rs.4,16,953/- within 15 days from the date of receipt of the letter. Aggrieved of the impugned demand notice, the present writ petition came to be filed.
Sri Rama Rao Mavidi, learned counsel appearing for the petitioner has drawn the attention of this Court to the following Clauses of the General Terms and Conditions of Supply ['GTCS', for short].
9.1 Inspection & Detection 9.1.1.The officers authorized to inspect various services/ premises (referred to as "Inspecting Officer‟) for this purpose shall be those who are authorized by the State Govt. u/s 126 of the Act.
9.1.2.The Inspecting Officer shall record the observations made at the time of inspection by preparing the Inspection Report as per the format prescribed in Appendix IV A for LT consumers or Appendix IV B for HT consumers, as the case may be and serve a copy of the same to the consumer at the end of the inspection. The Inspecting Officer shall send a copy of such Inspection Report by the next working day to the Assessing Officer for preparation of the Provisional Assessment order for cases of Unauthorized Use of Electricity.
9.2.Provisional Assessment 9.2.1 xxxxx 9.2.2 xxxx 9.2.3.The Provisional Assessment order as defined in clause 2.2.46(A) herein for cases of Unauthorized Use of Electricity shall be prepared by the Provisional21 Assessing Officer, in the format provided in Appendix V, the order shall mention inter alia:
i. Incriminating points observed during the inspection of the Consumer's Premises and installation;
ii. The reasons for disconnection proposed to be effected; and iii. Assessment of electricity charges due to the Company computed based on the guidelines provided in Appendix XII of GTCS. 9.2.4. The Assessing Officer shall also inform the consumer in the said order, i. that if the consumer desires continuance of supply he should deposit 50% of the provisionally assessed electricity charges, in addition to other charges, within 7 days from the date of service of the Provisional Assessment order. In the event of failure on the part of the consumer to deposit 50% of the provisionally assessed electricity charges within 7 days from the date of service of the Provisional Assessment order, the service connection shall be disconnected by the Company in accordance with section 56 of the Act.
ii. that the consumer can make a representation to him within 15 days from the date of service of the order, if he has any objection to it and that the consumer will be given an opportunity for personal hearing if so desired, before disposing off his representation. 9.4.Final Assessment 9.4.1. The consumer may make a representation to the Assessing Officer within 15 days from the date of service of the Provisional Assessment order. The Assessing Officer shall enquire into the matter, and after giving reasonable opportunity to the consumer (including an opportunity for personal hearing to the consumer) and taking into account all relevant facts and circumstances, shall proceed to assess to the best of his judgment, the electricity charges payable by the consumer due to the Company on account of such Unauthorized Use of Electricity by the consumer and issue the final order of assessment in terms of Section 126(3) of the Act.
12.3.3.2 Cases where the total Connected Load is above 75 HP/56kW or i. These services shall be billed at the respective HT tariff rates from the consumption month in which the un-authorized additional load is detected. For this purpose, 80% of Connected Load shall be taken as billing demand. The quantity of electricity consumed in any Month shall be computed by adding 3% extra on account of transformation losses to the energy recorded in LT Meter.
Learned counsel for the petitioner would contend that the demand notice/letter is not preceded by any notice and no enquiry was held as contemplated under Clause No.9.1 of the GTCS. He further submits that a reading of the above Clauses of the GTCS clearly states that the inspecting officer, who inspected the premises, in the presence of the owner or authorised person, shall prepare the inspection report as per the format prescribed in Appendix IV A for LT consumers and serve a copy of the same to the consumer at the end of the inspection and thereafter the inspecting officer shall send a copy of such inspection report by the next working day to the Assessing Officer for preparation of the provisional assessment order in cases of unauthorised use of electricity.
Learned counsel for the petitioner further submits that though the inspection was said to have been conducted on 07.06.2018, the demand notice/letter is issued on 25.06.2019 to pay an amount of Rs.4,16,953/- within 15 days from the date of receipt of the said notice. Even the provisional assessment order said to be prepared has to be served on the consumer within five working days from the date of inspection, as per Clause 9.2.2 of the GTCS. Provisional assessment order has to be prepared as per clause no.9.2.3 and as per clause 9.2.4 the Assessing Officer shall inform the consumer that if the consumer desires continuance of supply, he shall deposit 50% of the provisionally assessed electricity charges within 7 days from the date of service of provisional assessment order and in case of failure on the part of the consumer to deposit 50% the service connection shall be disconnected by the Company in accordance with Section 56 of the Act. Further, as per clause no.9.2.4(ii) the can make a representation to the Assessing Officer within 15 days from the date of service of the order, if he has any objection to it and the consumer will be given an opportunity of personal hearing if so desired before disposing of his representation. The impugned demand is made without following the procedure contemplated under the relevant clauses of the GTCS in particular clause 9.3.2, which deals with inspection and assessment for cases of unauthorised use of electricity by LT consumers. As per clause 9.4 the Assessing Officer has to pass final assessment order. As the above procedure is not followed, the demand notice is liable to be set aside.
Sri Metta Chandra Sekhar Rao, learned standing counsel appearing for the respondents, strenuously contended that the respondents followed the procedure contemplated under the relevant clauses of the GTCS and specifically clause no.9. Even after the demand notice, dated 25.06.2019, was issued, the petitioner failed to make any representation to the assessing authority. In those circumstances, the contention of the counsel for the petitioner does not merit consideration and the writ petition is liable to be dismissed.
Having regard to the facts and circumstances of the case and the submissions of both the counsel and on perusal of the record, this Court found force in the submissions of the learned counsel for the petitioner that entire procedure followed till issuing the demand notice/letter is without proper inspection as contemplated under clause 9.1.2 of the GTCS and no provisional assessment order is passed as required under clause 9.2.3 and no demand is made for payment of 50% of the provisional assessment as required under clause 9.2.4 of the GTCS. The assessment of the contracted load is not done as per clause 12.3.3.2(i) of the GTCS.
For all the above reasons, this Court found that the impugned demand notice/letter is issued without following the procedure and calculating the exceeding contracted load as provided under clause 12.3.3.2(i) of GTCS. Hence, the impugned demand notice/letter is liable to be set aside.
In the result, the Writ Petition is allowed and the impugned demand notice/letter, dated 25.06.2019, is set aside. However, in the facts and circumstances of the case, as the petitioner was not given an opportunity before issuing the impugned demand notice/letter, liberty is given to the petitioner, in the interests of justice, to make a representation to the Deputy Executive Engineer (Operation), APEPDCL, who is the assessing authority, within 15 days from the date of receipt of a copy of this order, by raising all the pleas raised in the writ petition and any additional objections to the demand notice. On such representation being made, the Deputy Executive Engineer (Operation), APEPDCL, shall pass appropriate orders as per law, on its own merits without reference to any delay occurred, after affording an opportunity of personal hearing to the petitioner, as per the relevant clauses of GTCS, and pass final assessment order and communicate the same to the petitioner. Till appropriate orders are passed on the representation that may be submitted by the petitioner, the respondents are directed not to take any coercive steps for recovery of remaining 50% of the demanded amount as the petitioner has already paid 50% of the demanded amount pursuant to the interim orders of this Court. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
________________ M.GANGA RAO, J 10.03.2020 Vjl