M/s. Maniklal Textiles v. Hyderabad

Petition under Article 226 of rhe constitution of lndia praying that in the .circumstances stated in the affidavit filed therewith, the High court may be pleased to issue a writ in the nature of a writ of Mandamus or any other writ, direction order or orders declaring the order dated 4-1 1-2004 of the cGM in his Proceedings No-cGM/oP/DE/(o & M) F 2s1 (vi) 2902 confirming the finat assessment imposing penality on the ground that the petitioner indulged in pilferage of energy as wholly arbitrary, illegal, without jurisdiction and void l.A. NO: 1 OF 2O15(WPM P. NO:51477 oF 2015) Petitionunderl]ectionl5lCPcprayingthatinthecircumstancesstated in the affidavit filed in s;upport of the petition, the High Court may be pleased to stayallfurtherproceedingspursuanttotheorderoftheCG|\,4dated4-11-2004in P roceed in gs No : CG fvl /OP/D E/(O& M )F 251 (vi) 2902 IA NO: 1 OF 2024 Petition under fjr:ction 114 rlw order- 47, Rule -1 of cPC praying that in the circumstances stated in the ground of the review petition, the High court may be pleased to review the order daled 24-09-2024 and restore the case to file and hear the case on meritsi CounselforthePetitioner:SRI.M.P.CHANDRAMOULISENIORCOUNSEL'rep REP SRI CH. SAWA SADHAN' ADV Counsel for the Respondents: SRI N. SREEDHAR REDDY ( Sc FoR TGSPDCL) The Court made the following: ORDER HON'BLE MRS JUSTICE SUREPALLT NANDA EVI wr. .N 4d N No. PET o of o24 39a81 oF2o15 w ORDER: Heard Sri M.p, Chandramouti, learned Senior Counsel representing Sri Ch. Satya Sadhan, learned counsel appearing on behalf of petitioner and Sri N. Sreedhar Reddy, learned Standing Counsel for TGSpDCL appearing on behalf of respondent Nos.1 to 5.

2. The present Review petition is filed by the review petitioner,/petitioner in W.p. No. 39gg1 of 2O15 seeking review of the order passed by this Court in W.p.No.3gggl of 2015, dated 24.O9.2024.

3. The case of the review petitioner, in brief is that the impugned order dated 24.09.2024 passed in W.p. No. 39881 of 2015 passed by this court suffers an error due to mistake of fact. The learned Standing Counsel represented that as the amount levied was deposited pursuant to the order dated 09.12.2015 in W.P. No. 51477 of 23015, no further orders are necessary and thereupon the Court closed the writ petition and that the order I : I I *.., 2 under challenge did not become infructuous on depos;it of the amount levied and the learned counsel appearing on behalf of the Review tetitioner requests to review the orrjer dated -24.09.2024 and restore the case to file and hear the case on merits. Hence lhis Court heard the present Review. PERU ED THE RE CORD. This Court oassed interi 4 w.P.M.P. 0.51477 of 2O15 in favour of the Detitioner orders on 09.1 2.2O15 in observinq as under: "subject to the petitioner paying the sum of Rs.2-,26,830/- as asserssed in the impugned proceedings dt.04.11.2004 within eight (B) weeks from today, the respondents shall not disc.onnect the power supply to the petitioner's unit."

5. The relevant portion of the impugned proceedings of the 2nd respondent issued to the petitioner vide Prods. No. CGM/OP / DE(O&M)/F.251(vi) /29O2, dated O4.11.2OO4 in particular para Nos.8 and 9 is extracted hereunder:

8. Agqrieved with assessment of the Superintending Enginee r/Assessment/Hydera bad, the consumer has flled an appeal br:fore the CGM/Operation/APCPDCL/Hyderabad: vide appeal dated 2L-O5-2OO4.

9. The nr;rin contents of the appeal are as follows:

1. The Pilferage case booked is arbitrary and false. J 3-.^t t.". terms and agreements the average of 40 days prior to rnspection or 40 days after inspection .orfa-'U" iuL-"n.

3. The seals were in track,and were broken and resealed by AE on.5-7-94. So ailegation that seats-aie-i;;p;;j "" t2.7.tsg4 is far away for truth.

4. We are no technical people.

5. Penal rates adopted are not correct. 6' while arriving pirfered units, 400 vorts vortage is considered but our regular voltage was 320 ," i:o ,"rt. #rrvl ' Finally the consumer has requested the following: - 1). Instead of 8 hrs the .F.A.. Authority has taken 12 hrs/day. Dunng that 8. hrs suppty atso tnerJ ;;;"';';""y.power rnterruptions, 160 davs w_ere taken fo. aisessment for the period from 22-LZ-g3 to L2_7 _94 without ."rriO"*i"g holidays and Sundays etc., 2). We have considered. stopped the unit for 15 days that was not iJ..-ll_. 1"e..nmentat person has visited our premise based on our complaint on meter. In this regard, it is to be stated that the S.C.NO.1250 LT Cat-III was. insp.ected by sri G.K. ramat nai erririu-"t Divisionar Engineer/DpE-I/Hyderabad on 72_7_9i" a J- f"r"O that the consumer had meddled with the mete. meJt anism duly tampering two seals. This constit to pay the prescribed. utes pilferage of energy and the consumer is Iiable ross sustained by ApCpDCL with penal rates ai The appeal of the consumer is examined in detail and having regard to the aforesaid facts and circumstances-J in" .as" unO after thorough verification of records-the "Oplf"i" authority is convinced that the consumer indulged i, piffll"g" the assessment made Ev energy and -,iJpu.intending "f [hu- is' in o.ai. u #'."qri.", no .ul::1"";lott"ssment/Hvderaoao +- 4 The consumer is therefore requested to pay the amount of Rs.2,26,83O/- (Rupees Two lakhs twenty six thousand eight hundred and thirty only) plus Rs.150/- towards s.lpervision charges lr:ss the amount already paid, if any in this case within 30 days of receipt of this order, failing with supply to your service will discontinued without any further notice and steps taken to recover the amount due. Further it is to inform that no further appeal on this order will be entert,lined and this order is final as per clause No.39.10 of terms and conditions of supply. DISCUSSION AND CO NCLUSION: 6 s e cific t he e ra leaded per the averments made in the affid vit at oara No 5. filed bv the oetitio'ner in suooort f the oresent writ etition as extra ed as iit is hereunder: "I submit that pilferage of energy dealt under condition-39 of APSEB Terms and Conditions of :Supply issued in 8.P. NS 690, dated 17-9-1975. Condition 39.7.4. deals with the cases of pilferage of energy of consumers oF L.T. Category. Condition 39.7 .4.1 Stipulate the mettod to work out :he quantity of units consumed per month. I submit that condition 39.7.4.3 is relevant for assessirg the liability and the same reads as follows. "The Assessment shall be made for entire period during which pilferage is taking place and can be clearly established' If there is any anrbiguity the period should be limited to a maximum of one year prior to the date of inspection. the consumption so assessed shall be charged at the special raltes as prescribed in C1,39.12.1 hereunder". I 5 submit that as per the above provision the assessment of the energy shall have to be made for the entire period during which pilferage is taking place and can be clearly established. I submit if the sald perlod cannot be established then only the assessment can be made for one year. I submit that in this case the respondents without following the first limb of the said conditions has assessed the quantity of energy for a period of 160 days i'e' from 22.72.1993 to L2.7.lgg4- I submit that this action is wholly illegal. I submit that in this case the meter reading was being taken by the ADE on 22d of every month' Accordingly he has taken meter reading of the petitioner meter on 22.6.1gg4 and he did not find any tampering of the meter and accordingly he raised the bill and the petitioner paid the same. Thus the period is ascertainable without any ambiguity; the period is from 23-6-2004 to 12-7-2OO4 i'e' 23 days. Even this period of 23 days is not correct admittedly the petitioner complained of meter burning on 5- l-irgg4. Therefore the days of pilferage came to 13 days' As against the said period the respondents have taken 160 days and arrived at huge amount"' It is further case of the petitioner that if the said period 7. cannot be established then only the assessment can be made for one year and the respondents without following the first limb of the said condition has assessed the quantity of energy for a period of 160 days i.e. from 22'12'1'gg3 lo l2'7 '1994 and hence the said action is illegal. It is further the case of the petitioner that in the present case the meter reading was taken by ADE on 6 22nd of every month and accordingly he had taken the meter reading of tl're subject meter on 22.06.1994 and as on the said date he did rrc,t find any tampering of the meter and accordingly he raised thc. bill and the petitioner paid the same. It is the specific case of the petitioner that, the petitioner had comprained rneter burning on 05.07.1gg4 and therefore, the days of pilferar3e came to 13 days. The respondents had taken 160 days and arrived at huge amount. The petitioner had preferred appeal before the Superintending Engineer (Clperation Circle), TSSpDiCL, R.R. East Circle, Uppal, Hyderabad and the Superintending Engineer (Operation Circle), Hyderabad had finalized the case differenily by estimating the loss oF Rs.2,26,830/- Aggrieved by the same the petitioner preferred appeal on 27.05;.2024 before the 2,d respondent herein.

8. A bare perusal of the impugned proceedings clearly indicates that t.he pleas as put forth by the petitioner admittedly had not been considered by the 2nd respondent since as borne on record neiflrr:r any reference is made nor any discussion is made in arriving at conclusion that the order of Superintending Engineer (operation Circre), Hyderabad is in order and requires no revision. 1) 7

9. Sri N. Sreedhar Reddy, learned Standing Counsel for TGSPDCL, appearing on behalf of respondents placing reliance on the averments made in the counter affidavit in particular para Nos.11 and 12 and submits that there is no illegality in the impugned proceedings passed by the 2nd respondent dated

04.lL.2004 and the same warrants no interference by this Court. The learned Standing Counsel further however submits that the matter could be remitted to the 2nd respondent for re- consideration of the subject issue again. The relevant para Nos.11 and 12 of the counter affidavit filed on behalf of respondent Nos.1 to 3 are extracted hereunder: *11. With regard to averment that meter reading was taken on 22-6-1994 and the period that is to be taken from 23-6-1994 to l2-7 -7994 i.e., after taking the meter reading till the date of inspection in not correct. Monthly meter reading are taken by the concerned engineers of operation wing are for the purpose of billing duly verifying the displays of the meter recordings. There is a separate wing in TSSPDCL called DPE wing i.e. Detection of pilferage of energy, who are the expertise team in conducting surprise inspections for detection of the energy. One such inspections was conducted in the present case in t2-7-t994 and pilferage energy was noticed. This is not for the first time the DPE case was registered against the petitions. There are 3 to 4 such cases pending against the petitioner. 8 It is further stated that the conditlon No.39.7.4.2 L2. deals with the quantity of units consumed per month shall be workerj out as per the table shown. It is submitted that the resp'lndents have strictly followed the terms and condition of supply and rightly calculated the period for 160 days".

10. This Cout on perusal of record opines that the pleas put forth by the petitioner before the appellate authority and also enlisted in the impugned proceedings at para No.9 had not been considered by'the 2nd respondent and the 2nd respondent arrived at an unilateral conclusion that the assessment madc' by the Superintending Engineer (Operation Circle), Hyderabad is in order and requires no revision without assigning any reasons.

11. Takino into onsideration (a) The submissions made by M'P. Chandramouli, learned Senior Counsel representing Sri Ch. Satya Sadhan, learned counsel appearing on behalf of petitioner, and Sri N. Sreedhar Reddy, learned Standing Counsel for TGSPDCL appearing on behalf of respondent Nos'1 to 5, (b) The relevant para Nos.8 and 9 of the impugned proceedings dated O4.11.2OO4 of the respondent No.2, (referred to and extracted above), I I 9 (c ) The averments made in the counter affidavit filed on behalf of respondent Nos.1 to 5 in particulat para Nos.11 and 12, (d) The conditiond 39.7.4.2 and 39.7.4.3 which are relevant for assessing the !iability, This Court opines that in view of the fact that there is no finding arrived at by the 2nd respondent even as per the condition 39.7.4.3., the present Review and the present writ petition are altowed and the order impugned dated 04.11.2OO4 ol the 2nd respondent is set aside and the matter is remanded to the 2nd respondent to consider the matter afresh by giving an opportunity of personal hearing to the petitioner in accordance to law, in conformity with principles of naturat justice and pass appropriate reasoned order, and .duly communicate the decision on the appeal preferred by the petitaoner on 21.O5.2OO4 to the 2"d respondent herein against the assessment of the Superintending Engineer (Operation Circle), Hyderabad dated L7.O4.2OO4, within four (4) weeks from the date of receipt of a copy of this order. I 0 IO Till the ilbove exercise is undertaken and concluded as per the directions as issued as above, within the time period as sti;lulated as above, the interim order granted by this Court on O9.L2.2OLS in W.P.M.P. No.5t477 of 2015 in W.P. No. 39881 of 2O15 (referred to and extracted above), shall remain in force. Miscellan,eous petitions, if anV, Oendinp , shall stand closed. That tlule Nisi has been made absolute as above Witness THE HON'E|LETHE CHIEF JUSTICE SUJOY PAUL, WEDNESDAY ,THE TWELFTH DAY OF FEBRUARY TWO THOUSAND AND TWENry F|VE SD/. A. SRINIVASA REDDY TRAR SA G S //TRUE COPY// o REcFF To,

4. 5 7 8 The Vice Chairrnan and Managing Director, Southern Power Distribution Company Ltd., (ff Telangana State, Mint Compound Hyderaba,C, The Chief General Manager, TSSPDCL, Singareni Bhavan, Red Hills, Hyderabad. The Superinten,iing Engineer (Operation, Circle), TSSPDCL, R.R. East Circle, Uppal, Ranga Fleddy District. The Assistant Divisional Engineer (Operation, Circle) TSSPDC-, lDA, Nacharam, R.R. District. The Senior Accounts Officer, TSSPDCL, lDA, Nacharam, R.R. District. One CC to Sttl. M. P. CHANDRAIVOULI, Advocate IOPUC] One CC to SRl. N SREEDHAR REDDY ( SC FOR TGSPDCL) IOPUC] Two CD Copiers B^/ GJP T II- ^/. E HIGH COURT DATED:1210212025 1ir 6. 9TAr .< _'t i ). \.; \ 2 4 loiAH 2025 P C) .t ^ \\S 'r\ l, E< * r'?-o ORDER REVIEW IA NO. 1 OF 2024 AND WRIT PETITION NO: 39881 OF 2015 REVIEW PETITION AND WRIT PETITION BOTH ARE ALLOWING WITHOUT COSTS (t- @ frv{