Telangana High Court

The Central Power Distribution ... vs Janakirama on 1 August, 2022

Bench: Ujjal Bhuyan, N.V.Shravan Kumar

      THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                     AND
       THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR


              WRIT APPEAL No.112 of 2018

JUDGMENT:   (Per the Hon'ble the Chief Justice Ujjal Bhuyan)



     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

setting aside the final order of assessment however