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Judgment
This writ petition is filed under Article 226 of the Constitution of the India seeking the following reliefs:-
“to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in demanding the balance 50% of provisionally assessed amount and threatening to disconnect power supply for failure thereof, pursuant to provisional assessment notice vide Letter No. ADE/O/NDD/F.Doc. 432/D.No.2269/2006 dt.30-12-2006 and Consequential Notice No.ADE/OSD/NDD/F.No./D.No. 1471/08 dt.8-10-2008 is illegal, irregular, without jurisdiction and violative of principles of natural justice, The Electricity Act, 2003 and Rules and Regulations framed there under and offends articles 14 and 21 of Constitution of India and consequently direct the Respondents to continue power supply to Petitioner’s service connection No. 5977/Cat-II Nidadavole Town without insisting upon payment of any amount and pass.
Heard learned counsel for the petitioner and learned Standing Counsel for APEPDCL.
The case of the petitioner is that the respondents are threatening the petitioner to disconnect the power supply pursuant to the notice dated 30.12.2006 demanding to pay fifty percent of assed amount of Rs.59,203/- due to the pilferage or theft of energy. Pursuant to the notice dated 30.12.2006, the petitioner has paid Rs.27,000/- towards compounding fee for the alleged offence of pilferage or theft of energy on the same day i.e., 30.12.2006. Thereafter, the power was restored. While things stood thus, the 1st respondent served another notice dated 08.10.2008, thereby demanding to pay remaining 50% of the provisional assessed amount, within seven days from the date of receipt of notice. Failing which, he would disconnect power supply. Aggrieved by the action of the respondents, the present writ petition is filed.
Learned counsel for the petitioner submits that the pilferage of energy or theft of power has to be decided by the competent Special Court under Section 154(5) of the Electricity Act, 2003 but the respondents have not referred the matter to the Special Court for determination of civil liability against the consumer/petitioner herein as contemplated under Section 154(5) of the Electricity Act, 2003.
On the other hand, learned Standing Counsel submits that the petitioner has not filed any objections as contemplated under Section 126(3) of the Electricity Act, 2003, pursuant to the notice dated 30.12.2006, due to which the respondents have issued notice dated 08.10.2008, demanding the remaining amount, as per the provisional assessment notice dated 30.12.2006. He further submits that in view of the Section 154(5) of the Electricity Act, 2003, the liability of the petitioner/consumer due to pilferage or theft of energy shall be determined by the Special Court as constituted there under. Therefore, the respondents would refer the matter to the Special Court for such determination to the concerned jurisdiction.
For better understanding, it would be appropriate to extract the following Sections of Electricity Act, 2003
Section 126: (Assessment): --- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.
(2)The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
1[(3) The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.]
(4)Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:
3[(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.]
154 (5) The 1[Special Court shall] determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.
Having regard to the submissions of learned counsel for the petitioner and learned Standing Counsel, and also on perusal of the provisions extracted therein, it is clear and categorical that the petitioner shall submit his explanation or objections to the Provisional Assessment Notice dated 30.12.2006, in the absence of such, the matter shall be referred to Special Courts for determining the civil liability but without doing so the respondents have issued final demand notice dated 08.10.2008.
Accordingly, this Writ Petition is disposed of, directing the respondents to refer the matter to the Special Courts for determining the civil liability as contemplated under Section 154(5) of the Electricity Act, 2003.
There shall be no order as to costs.
As a sequel miscellaneous application, pending, if any, shall also stand closed.