Andhra Pradesh High Court - Amravati
This Writ Petition Is Filed By The vs "...... To Pass An Order Or Orders on 25 September, 2019
THE HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
WRIT PETITION NO.5071 OF 2019
O R D E R:
This writ petition is filed by the petitioner under Article 226 of the Constitution of India with the following reliefs:
"...... to pass an order or orders, direction or writ more particularly one in the nature of writ of Mandamus:
a. declaring the action of the 2nd respondent in rejecting the appeal filed by the petitioner vide letter bearing Lr.No.SE/ASSMT/TPT/D.No.860/2016, dated 04.06.2016 under Section 127 of Electricity Act, 2003 without granting any opportunity of hearing as illegal, arbitrary and violative of principles of natural justice as well as the provisions of the Electricity act, 2003;
b. declaring the action of the 3rd respondent in passing the Final Assessment Order vide DE-ASMT/TPT/F.No.40- 15/GNT/T-3/D.No.923/15, dated 15.06.2015 without considering the objections submitted by the petitioner and without hearing the petitioner as illegal, arbitrary and violative of principles of natural justice as well as the provisions of the Electricity Act, 2003 and c. consequently, direct the respondents to collect the electricity consumption charges pertaining to Service Connection No.1113300134761 in the name of the petitioner as per the LT Category-I i.e., Domestic Category instead of LT Category-II i.e., Commercial category and refund the excess amount including the penalty amounts collected by the respondents from April, 2015 till the date of this petition along with interest....."
2) Heard, Sri D. Yathindra Dev, learned counsel for the petitioner. Sri Y. Nagi Reddy, learned standing counsel for APSPDCL appearing for respondents 2 to 4 again seeks time to get instructions.
3) Learned counsel for the petitioner submits that the petitioner is a landlord and owner of a house which is rented out to medical students and employees, since, the house is situated near to a medical college. The grievance of the petitioner is that 2 although a statutory appeal was filed within the stipulated time, appeal was rejected on the ground that it was not filed in time. Learned counsel points out that right from the inception in this case there were a number of infirmities. He also points out that the provisional inspection was carried out from 30.03.2015 and that a copy of the inspection report was not handed over as mandated under clause 9.1.2 of the conditions of supply. He also points out that para-1 of the Provisional Assessment Order itself shows that it was not handed over and that the name of the consumer or the representative is left blank. Learned counsel submits that the objections to the Provisional Order setting out in a great length, all the objections were served on the respondents as per the courier receipt on 20.04.2015. In addition, a copy was also manually served on the respondents and the rubber stamp acknowledgements of the Divisional Engineer, ADE and the Assistant Engineer, dated 20.04.2015 are present on a copy of this. Despite the service of these objections personally and through courier the Final Assessment Order was passed in paragraph-4 in which it is mentioned that the consumer did not make a report. This is a second major grievance pointed out by the learned counsel for the petitioner. Learned counsel also points out that this Final Assessment Order was served only on 20.04.2016. Learned counsel relies upon the acknowledgement, dated 20.01.2016. It shows that the consumer received it on that day. An appeal was also filed by 04.02.2016. Learned counsel submits that the track report of service of the appeal grounds show that it was served on the respondents on 05.02.2016 at 11-00 a.m. Learned counsel also submits that they can only file an appeal 3 when the Final Assessment Order is served on them. Despite the clear proof of service of the appeal grounds on 05.02.2016, he submits that the impugned order was passed as if the appeal was not filed within 30 days from 15.06.2015. This is mentioned in the order, dated 04.06.2016, which is now impugned. Learned counsel for the petitioner also points out that the track report clearly shows that the appeal was filed within the stipulated period after the service of the Final Assessment Order. Therefore, he points out that this is a clear case of non-application of mind and bias.
4) Learned standing counsel for respondents, on the other hand, states that only after adequate opportunity was given to the petitioner, only the impugned order was passed. He submits that there is absolutely no infirmity order is passed and that the appeal was filed in 2016 whereas the order passed in 2015. There is no infirmity committed by the respondents as per him. Therefore, he prays to dismiss the writ petition.
5) This Court after hearing both the learned counsels notices that there is sufficient strength in the submissions made by the learned counsel for the petitioner. The initial provisional inspection report was not served and the objections to the Final Assessment Order was not been considered, as can be seen from the material papers filed. Ultimately the learned counsel for the petitioner submits that the copy of the Order was served on 20.01.2016. In that view of the matter, this Court is of the opinion that the learned counsel for the petitioner has made out a case for interference by this Court. Hence, this Court is of the opinion that the impugned order, dated 15.06.2015 is set aside and the action 4 of the 3rd respondent in passing the Final Assessment Order without considering the objections is also set aside.
6) However, as all the material that is required other than the inspection report is available with the petitioner, the following order is passed:
i) Respondents are directed to serve a copy of the inspection report, dated 30.04.2015 within one week from the date of receipt of the copy of this order.
ii) The petitioner is given an option of filing his objections to the inspection report, so furnished.
iii) The objections shall also be considered along with the objections, dated 17.04.2015. Then the matter should be heard afresh and disposed off by the respondents considering that the objections dated 17.04.2015 are filed in time. In the interim period and till final disposal the petitioner shall continue to pay the electricity charges as per the domestic category only. Needless to say a reasoned order should be passed.
7) With these observations, this writ petition is allowed. There is no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________ D.V.S.S. SOMAYAJULU, J Dt. 25.09.2019 PGR