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The Central Power Distribution Company of A.P. Ltd. v/s Janakirama

    Writ Appeal No. 112 of 2018

    Decided On, 01 August 2022

    At, High Court of for the State of Telangana

    By, THE HONOURABLE CHIEF JUSTICE MR. UJJAL BHUYAN & THE HONOURABLE MR. JUSTICE N.V. SHRAVAN KUMAR

    For the Petitioner: R. Vinod Reddy, SC for TSTRANSCO. For the Respondent: CH. Pushyam Kiran, Advocate.



Judgment Text

Ujjal Bhuyan, CJ.

Heard Mr. R.Vinod Reddy, learned counsel for the appellants and Ms. K.Prabhavathi, learned counsel for respondent No.1.

2. Telangana State Southern Power Distribution Company Limited and its officials are the appellants in the present appeal. They have assailed legality and validity of the judgment and order dated 04.07.2017 passed by the learned Single Judge in W.P.No.36273 of 2012 filed by respondent No.1.

3. Respondent No.1 had filed the related writ petition challenging the final assessment order dated 23.10.2012 passed by appellant No.5. Facts leading to filing of the writ petition were summed up by the learned Single Judge in the following manner:

“The Assistant Divisional Engineer (Operation), APCPDCL-5th respondent herein vide letter bearing Lr.No.ADE/OP/GREENLANDS/D.No.1984 dated 29.11.2011 issued a provisional assessment order, assessing provisionally a sum of Rs.13,81,76,688/- under Section 126 of the Electricity Act, 2003, while alleging unauthorised usage of electricity, for the purpose other than for which usage of electricity was authorised for the period from April 2004 to September 2011. Assailing the said provisional assessment order dated 29.11.2011, petitioner filed Writ Petition No.32099 of 2011 and on 17.12.2011, this Court passed an interim order, directing the respondents not to disconnect the power supply, subject to the petitioner depositing a sum of Rs.1.50 crores with the respondents within a period of four weeks and the petitioner herein deposited the said amount. On 6.3.2012, this Court disposed of the said Writ Petition No.32099 of 2011, keeping it open to the petitioner to file objections to the provisional assessment order, including those under Section 56(2) of the Electricity Act, 2003 with a further direction to the assessing authority to give opportunity to the petitioner before passing final order of assessment. This Court also directed continuation of the interim order dated 17.12.2011 till passing of final assessment orders. Thereafter, on 23.8.2012, petitioner filed objections to the provisional assessment order and the Superintending Engineer-6th respondent herein, vide impugned order dated 23.10.2012, confirmed the provisional assessment order, fixing the liability as Rs.13,81,76,694/-, while rejecting the objections filed by the petitioner herein. The said final order of assessment is under challenge in the present writ petition.”

4. Learned Single Judge while admitting the writ petition on 26.11.2012 had granted interim suspension of the impugned final assessment order dated 23.10.2012 subject to the condition that respondent No.1 should deposit a sum of Rs.1.5 crores within a period of six weeks. On 22.03.2016, learned Single Judge directed respondent No.1 to deposit a further sum of Rs.43,00,000.00. Learned Single Judge was informed that respondent No.1 had complied with both the conditions and made necessary deposit.

5. Various grounds of challenge were raised to the order dated 23.10.2012, including on the point of limitation under Section 56(2) of the Electricity Act, 2003 as well as being contrary to G.O.Ms.No.114, dated 25.05.1999, G.O.Ms.No.27, dated 27.06.2002 and G.O.Ms.No.11, dated 21.03.2005. The writ petition was contested by the appellants. It was contended that there was alternative remedy and therefore, without availing the alternative remedy, respondent No.1 could not have filed the writ petition under Article 226 of the Constitution of India. On merit it was contended that respondent No.1 could not be construed to come within the definition of Information Technology (IT) Industry as per G.O.Ms.No.11, dated 21.03.2005. It was also contended that the impugned order was not barred by limitation.

6. After considering the pleadings and materials on record, learned Single Judge framed the following issue for consideration:

“Whether the impugned action which culminated in final orders of assessment passed by the 6th respondent is sustainable and tenable?”

7. After referring to the various Government Orders adverted to above, learned Single Judge concluded as under:

“11. In the impugned order of final assessment dated 23.10.2012, the 6th respondent at paragraph 9(ii) rejected the claim of the petitioner herein on the ground that M/s Bharti Airtel, a mobile company, and M/s Webhelp/Brigade Global Services Pvt. Which is BPO do not fall under the definition as provided under clause 34 of G.O.Ms.No.11 dated 21.3.2005. A reading of the above clause 34 makes it abundantly clear that Cellular (Mobile) Companies fall under clause 34(c) and BPO falls under clause 34(a). Therefore, the case of the respondents, in the considered opinion of this Court that the petitioner herein is not entitled for the benefit under G.O.Ms.No.11 dated 21.3.2005, by any stretch of imagination cannot be sustained. It is also required to be noticed that the benefits under G.O.Ms.No.11 dated 21.3.2005 remained operative for a period of five years only from the date of the said Governmental Order. Therefore, the petitioner herein is entitled for the benefit of the said Governmental Order for a period of five years from the date of issuance of the said G.O. Further, the contention of the Respondents that in view of availability of alternative remedy of appeal, the present writ petition is not maintainable, in the considered opinion of this Court, cannot be a ground to reject the present writ petition, since this Court entertained the present writ petition as long back as in the year 2012 and issued rule nisi and passed interim orders from time to time. The said ground of alternative remedy, in the considered opinion, cannot be sustained, having regard to the facts and circumstances of the case. In view of these findings of this Court on the applicability of G.O.Ms.No.11 dated 21.3.2005 in favour of the petitioner and alternative remedy, this Court does not propose to go into other aspects of the matter.

12. Accordingly, the writ petition is allowed, setting aside the final order of assessment passed by the 6th respondent in Order No.SEA/HYD/F.No./SAH No.11194 D.No.2777 dated 23.10.2012. It is further declared that the petitioner herein is entitled for the benefit under G.O.Ms.No.11 dated 21.3.2005 only for the period covered by the said Governmental Orders and it is open for the respondents to raise the demand, in accordance with law and in the light of the observations made above. The respondents shall adjust the amounts already paid by the petitioner herein in the future bills. As a sequel, the miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.”

8. From the above, it is evident that learned Single Judge did not sustain the contention of the appellants that respondent No.1 did not fall within the ambit of IT Industry, whereafter it was held that respondent No.1 would be entitled to the benefits under G.O.Ms.No.11, dated 21.03.2005. On the point of alternative remedy, learned Single Judge held that after the writ petition was admitted and after lapse of more than five years it would not at all be justified to relegate respondent No.1 to the forum of alternative remedy. Learned Single Judge while settin

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g aside the final order of assessment however declared that respondent No.1 would be entitled to the benefits under G.O.Ms.No.11, dated 21.03.2005, only for the period covered by the said Government Order and gave liberty to the appellants to raise the demand in accordance with law and directed that the amounts already paid by respondent No.1 should be adjusted against future bills. Accordingly, the final assessment order dated 23.10.2012 was set aside. 9. On thorough consideration of all aspects of the matter, we do not find any error or infirmity with the view taken by the learned Single Judge. No case for interference is made out. 10. Consequently, writ appeal is dismissed. Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
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