WP/16212/1997 of M/S.DELTA AGRO CHEMICALS LTD. KRISHNA Vs THE CE. ELECTRICITY VIJAYAWADA AND 3 ORS on 30 December 2004

ORDER:

Heard the learned Counsel for the petitioner and also the learned standing counselappearing on behalf of the respondents.

The petitioner, which is an industry, filed this writ petition inter alia seeking toassail the proceedings in No.CEE/VZ/VJA/MRT/AE/V.15/96/D.No.74f/97, dated 21-6-1997 of the first respondent by way of this writ petition questioning the assessmentin regard to the unauthorized use of the load beyond the contract as per theproceedings dated 21-06-1997 passed by the first respondent herein confirming theorders of the second respondent dated 31-05-1996 and arriving the loss atRs.2,11,124-80ps.

order to make use of waste husk for the fuel, they purchased HT connection in theyear May, 1993, whereas just two months prior to the inspection, the sanctioned loadof 110 HP was connected. However, on the inspection conducted on 22-06-1995, itis now alleged that the petitioner has unauthorizedly exceeded the sanctioned loadand ultimately it is found that the total load was 148.52 HP and thus there is amisused load, which comes to 38.52 HP and, therefore theimpugned action.Though, the show cause notice was given on 18-07-1995, and also on 01-09-1995,the petitioner has explained in detail on 18-09-1995. Initially the provisionalassessment was made for Rs.2,55,154-80ps. However, the same was confirmed inthe final orders on 21-6-1997. In appeal, the appellate authority reduced the same toRs. 2,11,124-80ps.

The learned Counsel for the petitioner submits that having regard to the factthat the load was connected two months prior to the date of inspection, the entirecalculation as sought to be made by the respondents while making the assessmentfor a period of one year at a stretch is only unsustainable. This argument is repelledon behalf of the respondents herein.

Conclusion

Considering the submissions made and also on perusal of the entire record,the only question that calls for consideration is whether the petitioner is liable to theassessment as made on the allegation of excess use of the load as sanctioned bythe respondents. There is no dispute to the fact that the inspection was made on 22-6-1995 and the total connected load was recorded as 148.52 HP, whereas thecontracted load was only 110.00 HP. Therefore, it is alleged by the respondents thatthe load misused is 38.52 HP. The case of the petitioner is that the contracted loadof 110.00 was expired hardly two months back and therefore the question ofmisusing to the extent, now pointed out, is not correct.

Admittedly, on a reading of the impugned proceedings, it is seen that whiletaking into consideration the load misused at 38.52 HP, the calculations were sought to be raised on the recorded consumption from September, 1994 to 22-6-1995 and ultimately, the estimated consumption was sought to be arrived at. Thereis no serious dispute to the fact that the contracted load was sanctioned admittedlyjust two months prior to the inspection, and this aspect has apparently not beenconsidered by any of the authorities while making assessment. No doubt, on meterreading, the entries go to show that there is a misuse of contracted load. However,that itself cannot be a ground to make assessment against the petitioner by takingback for a period of one year and on the basis of the recorded consumption duringsuch period. Certainly, the recorded consumption which form part of the basis forassessment, does not pertain to the contracted load of 110.00 HP and necessarily ithas to be much on the lower side and the petitioner cannot blame nor can beproceeded against for any such misuse of contracted load when such load was notin existence.

In the circumstances, it has to be seen that the entire assessment as made iswholly unsustainable. It is now submitted by the learned counsel for the petitionerthat out of Rs.2,55,154-80ps, the petitioner has already paid 50% of the amount, i.e.Rs. 1,85,804-40ps. By taking into consideration such payment made and alsohaving regard to the fact that the inspection was made as long back as on 22-6-1995, it would suffice in the interests of justice to restrict the liability of the petitionerto the extent of the amount which has already been paid and therefore, the amountarrived by the appellate authority for Rs.2,11,124-80ps stands reduced toRs.1,85,804-40ps.

Accordingly, the writ petition is partly allowed.

That Rule Nisi has been made absolute as above.

Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on thisThursday the Thirtieth day of December Two thousand and four.

REGISTRAR

To

To

1. Chief Engineer(Electricity),Vijayawada Zone, Near PWD Grounds,Vijayawada-2, Krishna District.

2. Superintending Engineer,(Assessment Circle), A.P.S.E.B.,Vijayawada-2, Krishna District.

3. Assistant Divisional Engineer(Operations),Hanuman Junction, Krishna District.

4. Asst. Accounts Officer(Electricity Revenue Office),Nuzividu(PO), Krishna District.