HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Civil Misc. Writ Petition No. 27196 of 2011. Hazi Mohd. Yaseen. ........ Petitioner. Versus Paschimanchal Vidyut Vitran Nigam Limited and others. ........ Respondents. ----------
Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Ashok Srivastava) Appearance:
For the Petitioner : Mr. B.C. Rai.
For the Respondents : Mr. Pankaj Kumar Shukla.
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Amitava Lala, J.-- By means of this writ petition the petitioner has prayed for quashing of the order dated 02nd February, 2011, annexure No. -7 to the writ petition, as well as demand notice dated 19th January, 2011, annexure No. -8 to the writ petition, issued by the concerned Executive Engineer, respondent no. 2 herein, and further seeks direction upon the respondents to restore supply of electricity of the petitioner and also not to recover the amount in question from the petitioner in any manner including coercive process.
Briefly stated facts, according to the petitioner, are that he is a consumer of the electricity when Pashchimanchal Vidyut Vitran Nigam Limited (hereinafter in short called as the "Corporation") is the licensing authority. Father of the petitioner obtained electricity connection of 75 HP (56.696 KW) in the year 1978. The meter was installed in the meter room of the petitioner and it was kept in the lock and key of the concerned Executive Engineer of the Corporation. Another double pole meter, which is named as ''check meter', was also installed outside the premises of the petitioner, the purpose of which is to check the tampering of the meter installed at the consumer's premises. On 27th May, 2007, officers of the Corporation visited the premises of the petitioner and disconnected the supply of electricity. Inspection report was served upon the petitioner on 28th May, 2007. According to the petitioner, such inspection was conducted against the provisions of the Uttar Pradesh Electricity Supply Code, 2005 (hereinafter in short called as the "Supply Code") and on the basis of the same the Executive Engineer-respondent no. 2 issued a demand notice dated 01st June, 2007 against the petitioner for a sum of Rs.22,57,529/- on account of alleged theft of electricity. Against such action of the respondents, a writ petition, being Civil Misc. Writ Petition No. 43872 of 2007 (Smt. Amana Khatoon Vs. P.V.V.N.L. and others) (number of which has been wrongly mentioned by the petitioner as 13872 of 2007) was filed on behalf of the petitioner, when a Division Bench of this Court by its order dated 18th September, 2007 was pleased to quash the demand notice and directed the concerned authority to issue the provisional assessment order to the petitioner. Such order was served upon the concerned Executive Engineer on 29th September, 2007. However, no provisional assessment order was served upon the petitioner for almost five months. According to the petitioner, when on 31st March, 2008 he made an application for restoring supply of electricity, it is only thereafter that on 07th March, 2008 the provisional assessment order was served upon the petitioner. Challenging such provisional assessment order another writ petition, being Civil Misc. Writ Petition No. 16007 of 2008 (Smt. Amna Khatoon Vs. PVVNL and another) was filed on behalf of the petitioner. Initially, in such writ petition this Court was pleased to pass an interim order in favour of the petitioner. Against such interim order the respondents-Corporation filed a special leave petition, wherein the Supreme Court was pleased to remand the matter back to this Court for disposal within a stipulated period and further directed that till the disposal of the writ petition the interim order passed by this Court shall not be given effect to. Ultimately, on 06th December, 2010 the writ petition was disposed of with the liberty to the petitioner to file objection to the provisional assessment and the respondents were directed to proceed in accordance with law. On 19th January, 2011 the concerned Executive Engineer issued a demand notice to the petitioner for an amount of Rs.56,67,377/-. On 20th January, 2011 a detailed objection was filed by the petitioner. However, on 02nd February, 2011 the Executive Engineer has allegedly passed an exparte order, impugned herein, without adverting to any inspection report and the submissions made by the petitioner in his written reply and also without affording any opportunity of hearing to the petitioner. The alleged exparte order has been passed assessing the petitioner for a period of 407 days in a hurried manner simply to cause serious prejudice to the petitioner, so that due to the subsequent order passed, the petitioner may not be able to deposit the assessment amount under Section 127(2) of the Electricity Act, 2003 (hereinafter in short called as the "Act") and prefer an appeal. Against this background, the present writ petition has been made.
Mr. B.C. Rai, learned Counsel appearing for the petitioner, has contended that the assessment order, which is impugned in the present writ petition, has been passed in violation of the settled principles of the Act and the Supply Code. Enlargement of scope of Section 126 (5) of the Act by the Executive Engineer, even prior to amendment of such section, is beyond jurisdiction, as a result whereof it amounts to fraud on statute. Basic principles of natural justice have been denied to the petitioner. Assessment has been made exorbitantly. The impugned order has been passed on the basis of the alleged MRI report even without supplying a copy thereof to the petitioner. On the point of alternative remedy, Mr. Rai has submitted that alternative remedy is no bar for entertaining the writ petition. In support of his contention, he has relied upon the various judgements of the Supreme Court and this High Court reported in 1998 (8) SCC 1 (Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others), 2003 (2) SCC 107 (Harbanslal Sahnia and another Vs. India Oil Corpn. Ltd. and others), 2007 (9) SCC 593 (Popcorn Entertainment and another Vs. City Industrial Development Corpn. and another), 2008 (3) ADJ 1 (DB) (Oriental Bank of Commerce Vs. State of U.P. and others), 2008 (6) ADJ 660 (DB) (Ashok Kumar and others Vs. State of U.P. and others) and 2010 (6) ADJ 315 (DB) (M/s. Arezzo Developers Private Limited and others Vs. State of U.P. and another). He has further submitted that sometimes there is also no bar in entertaining the writ petition in connection with the disputed question of facts in view of the judgements reported in 1969 (3) SCC 769 (Smt. Gunwant Kaur and others Vs. Municipal Committee, Bhatinda and others), 1970 (1) SCC 582 (Century Spinning and Manufacturing Company Ltd. and another Vs. The Ulhasnagar Municipal Council and another), 1974 (2) SCC 706 (Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot and others), 2003 (3) UPLBEC 2561 [Kendriya Karamchari Sahkari Grih Nirman Samiti Ltd., NOIDA, Gautam Budh Nagar, U.P. Vs. New Okhla Industrial Development Authority (NOIDA), Sector 6, NOIDA, Gautam Budh Nagar, U.P.], 2004 (3) SCC 553 (ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd. and others) and 2010 (11) SCC 186 (Zonal Manager, Central Bank of India Vs. Devi Ispat Limited and others).
Mr. Rai has further submitted that action of the Executive Engineer- respondent no. 2 is dehors the provisions of Articles 14 and 300-A of the Constitution of India, therefore, the assessment proceeding is nullity. Stand of the Executive Engineer is perverse and ex-facie illegal. So far as reasonable opportunity of hearing is concerned, he has relied upon the judgements reported in AIR 1958 SC 300 (Khem Chand Vs. Union of India and others) and 2006 (3) SCC 74 (Transmission Corpn. of A.P. Ltd. and others Vs. Sri Rama Krishna Rice Mill). In further, Mr. Rai said that merely taking note of the objection can not be said to be compliance with the provisions of the Supply Code, which contemplates reasonable opportunity of hearing, in view of the judgement of Transmission Corpn. of A.P. Ltd. (supra). Personal hearing is essential part of it in view of the ratio of Ashok Kumar (supra). Violation of principle of natural justice is ground for interference by the writ Court under Article 226 of the Constitution of India following the judgement reported in 2007 (10) SCC 88 (M.P. State Agro Industries Development Corpn. Ltd. and another Vs. Jahan Khan). Where the authority transgresses its jurisdiction, such matters can not be said to be beyond the pale of judicial review in view of the judgements reported in 2007 (12) SCC 210 (Institute of Chartered Financial Analysts of India and others Vs. Council of the Institute of Chartered Accountants of India and others) and 2008 (4) SCC 144 (Bhikhubhai Vithlabhai Patel and others Vs. State of Gujarat and another). Relying upon the ratio of Ashok Kumar (supra) he contended that non-technical and untrained consumers can not be thrown at the vagaries of the authorities. Remedy of appeal can not be termed as alternative efficacious remedy in view of the facts and circumstances of the case as held in AIR 1954 SC 403 (Himmatlal Harilal Mehta Vs. State of M.P. and two others).
That apart, Mr. Rai has also submitted that the Supply Code having statutory flavour is to be strictly followed by the parties in view of the judgement reported in 1996 (4) SCC 686 (Bihar State Electricity Board and others Vs. Parmeshwar Kumar Agarwala and others) and Ashok Kumar (supra). Relying upon the judgements reported in 1992 (3) SCC 285 (Ahmedabad Urban Development Authority Vs. Sharadkumar Jayantikumar Pasawalla and others), 1989 (1) SCC 44 (Member-Secretary, Andhra Pradesh State Board for Prevention and Control of Water Pollution Vs. Andhra Pradesh Rayons Ltd. and others) and 2006 (1) AWC 930 (Sri Niwas Budhaulia and others Vs. Secretary, Regional Transport Authority, Chitrakoot Dham, Banda and others) he has submitted that there should be specific statutory provision empowering the authority to impose levy, otherwise imposition will be illegal and in the instant case, there is no provision for making an assessment of electricity duty under the Act.
Factually, Mr. Rai wanted to establish that tampering of meter cubical seals can not ipso facto lead to the inference of theft of electricity as per Clause 8.1(b)(i) of the Supply Code. Procedure has to be followed properly as embodied in the statute by the legislature, otherwise it will be use of illegal, arbitrary, unanalysed and unbridled power, which is violative of Article 14 of the Constitution of India. The electricity department has no power to make assessment beyond a period of 180 days. So far as the penalty prescribed for one year under Section 154 (5) of the Act is concerned, it is the Special Court created under Section 153 of the Act, which has the power to impose the same and not the department and the proceeding for imposition of penalty is pending in the Court of Special Judge, Moradabad.
As against the aforesaid submissions of the petitioner, the respondents have contended before this Court that officers of the Corporation raided the premises of the petitioner on 27th May, 2007 at 2.45 P.M. and caught red-handed in causing theft of electricity. Since such act of the petitioner came under the definition of Section 135 of the Act, a first information report was lodged on the same day. As per the provisions contained under Clause 6.8 and 8.1 of the Supply Code, on 07th March, 2008 the Executive Engineer prepared the provisional assessment notice and invited objections from the petitioner upon it. Before that, against the demand notice, the petitioner had filed the Writ Petition No. 43872 of 2007, which was finally disposed of by this Court on 18th September, 2007 with an observation that "it is needless to emphasize that in case the petitioner is aggrieved by the final assessment order to be passed as indicated above, he may file an appeal under Section 127 of the Act." (emphasis supplied). Again on 25th March, 2008 another writ petition, being Writ Petition No. 16007 of 2008, was filed on behalf of the petitioner against the provisional assessment order dated 07th March, 2008. In such writ petition, an interim order was passed by this Court on 27th March, 2008, whereby the effect and operation of the order dated 07th March, 2008 was stayed. Challenging such interim order, the Corporation preferred Special Leave to Appeal (Civil) No. 9577 of 2008 (Pashchimanchal Vidyut Vit. Nigam Ltd. & anr. Vs. Amna Khatoon), wherein initially the Supreme Court was pleased to stay the operation of the interim order dated 27th March, 2008 passed by the Division Bench of this Court until further orders, vide order dated 09th April, 2008. Ultimately, on 05th May, 2008 the Special Leave Petition was heard and disposed of by the Supreme Court by expressing desire for early disposal of the writ petition and with an observation that the interim order passed by the High Court shall not be given effect to till the disposal of the writ petition. Subsequent thereto, a Division Bench of this Court by its order dated 06th December, 2010 disposed of the Writ Petition No. 16007 of 2008 giving liberty to the petitioner to file objection to the provisional assessment. Thereafter, on 20th January, 2011 a detailed objection was filed on behalf of the petitioner before the Executive Engineer. The Executive Engineer, upon considering such objection, passed a reasoned order on 02nd February, 2011 saying that the assessment shall be made for the entire period during which unauthorized use of electricity has taken place. It is against such order that bypassing the alternative remedy, on 09th May, 2011 the petitioner has filed the present writ petition, which is not maintainable and hit by the order passed in Writ Petition No. 43872 of 2007, whereunder it was observed by a Division Bench of this Court that if the petitioner is aggrieved by the final assessment order to be passed, he may file an appeal under Section 127 of the Act.
Mr. Pankaj Kumar Shukla, learned Counsel appearing for the respondents, has contended that the present writ petition is not maintainable having alternative and efficacious remedy. The allegation of passing exparte order is baseless. So far as not giving reasonable opportunity of hearing as per the ratio of Khem Chand (supra), wherein the Supreme Court explained the meaning of reasonable opportunity to include personal hearing, is concerned, Mr. Shukla has submitted that in 2004 (55) ALR 12 (Abdus Salam @ A. Salam Vs. Election Commission of India and another) it was held by a Division Bench of this Court that duty to hear does not mean affording personal hearing or audience. In AIR 1957 SC 648 (F.N. Roy Vs. Collector of Customs, Calcutta and others) it has been held by a Constitution Bench of the Supreme Court that there is no rule of natural justice that at every stage a person is entitled to a personal hearing. Therefore, the judgement of Khem Chand (supra) is not applicable in the present case. So far as the judgement of Transmission Corpn. of A.P. Ltd. (supra) is concerned, it has been stated by Mr. Shukla that principle of such case is not applicable in the present case, as that case was relating to the final assessment made by the assessing officer after recording statement of certain officers and imposition of penalty, therefore, opportunity of cross-examination was necessary. Moreover, according to him, reasonable opportunity of hearing does not necessarily mean personal hearing as held by the Supreme Court in several other judgements reported in AIR 1971 SC 1093 (Union of India Vs. Jyoti Prakash Mitter), 1989 Supp (2) SCC 462 (Carborundum Universal Ltd. Vs. Central Board of Direct Taxes, New Delhi) and AIR 2000 SC 2783 (Aligarh Muslim University and others Vs. Mansoor Ali Khan).
We are not very keen to enter into merit of the case specially when alternative efficacious remedy is available to the petitioner. Therefore, our analysis will be restricted in connection with affording of opportunity of personal hearing by the authority under Section 126 (3) of the Act and alleged assessment made for a period of 407 days in the place and instead of 180 days as per Section 126 (5) of the Act. The petitioner has not applied before the writ Court for the first time but third time, two occasions in connection with provisional assessment and this time after final assessment. Apart from other contexts, we have to see the orders passed by this Court and the Supreme Court in this regard. This Court in its order dated 18th September, 2007 passed in Writ Petition No. 43872 of 2007 has categorically held that after filing objection by the petitioner, the matter can be proceeded before the authority concerned and it is needless to emphasize that in case the petitioner is aggrieved by the final assessment order to be passed by the authority, he may file an appeal under Section 127 of the Act. Therefore, the propriety demands that the petitioner should prefer an appeal from such order. In further, when an interim order was passed by a Division Bench of this Court in the subsequent writ petition, the same was stayed by the Supreme Court and ultimately a final order was passed giving direction to the High Court to dispose of the matter and the interim order passed by the High Court was directed not to be given effect to till disposal of the writ petition. Against this background, it will not be appropriate on the part of this Court to interfere with the matter and pass an order ignoring such alternative efficacious remedy.
So far as Section 126 (5) of the Act is concerned, two parts are available therein; first part is with regard to the entire period during which such unauthorized use of electricity has taken place, and the other part is that if the period of unauthorized use can not be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. It is required to be factually enquired whether said period is actually ascertained by an appropriate authority on the basis of the appreciation of facts or not. Thus, there is no difficulty for the appellate authority to consider the cause upon being called by the petitioner.
The subsequent question is with regard to opportunity of personal hearing. In this regard, we find that Section 126 (3) of the Act says that the person, on whom the order of provisional assessment has been served, shall be entitled to file objections before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within the period prescribed. Mr. Rai has also relied upon certain clauses, being Clause 6.8 (c) (i) & (ii) before amendment and Clauses 6.8 (b)(i) & 6.8 (c)(i) after amendment, of the Supply Code to establish his case that everywhere opportunity of hearing is provided and the Supply Code having statutory force made it clear with regard to opportunity of hearing. As regards opportunity of hearing, he has relied upon Khem Chand (supra) and Transmission Corpn. of A.P. Ltd. (supra). So far as Khem Chand (supra) is concerned, it is relating to service matter, whereunder the question of giving opportunity of hearing is essential not only at the stage of show cause notice by way of reply, when the enquiry is required to be held after examining witnesses etc., but also before inflicting punishment by way of second show cause notice. Such rules are inbuilt in the statute available and supported by the Constitution. Therefore, the Constitution Bench of the Supreme Court held so, but that does not necessarily mean that in each and every case personal hearing is needed to fulfil the principle of natural justice. In Transmission Corpn. of A.P. Ltd. (supra) the matter was between consumer and electrical authority. In the said case, against the order of final assessment the appeal had been preferred. There the question arose as to whether the consumer can get an opportunity to submit oral and documentary evidences like Courts of law or not. The Supreme Court negated the payer of the consumer but while passing such judgement the Supreme Court observed that mere taking note of the objections filed can not be said to be compliance with the provisions contained under the relevant rules applicable in the State of Andhra Pradesh. However, according to the Supreme Court, the parameters of the principles of natural justice can not be covered by any straitjacket formula. It would vary depending upon the circumstances involved. It has no universal application like an enquiry under Article 311 (2) of the Constitution of India.
On the other hand, Mr. Shukla has contended by citing F.N. Roy (supra) that the Constitution Bench of the Supreme Court held therein that there is no rule of natural justice that at every stage a person is entitled to a personal hearing. In Carborundum Universal Ltd. (supra) it has been held by the Supreme Court that where a statutory provision does not exclude natural justice, the requirement of affording an opportunity of being heard can be assumed, particularly when the proceedings are quasi-judicial. Exclusion, however, can either be by a clear provision or inferred from the scheme, as also the nature of power which is being exercised. In Jyoti Prakash Mitter (supra) it has been held by a Constitution Bench of the Supreme Court that normally an opportunity for oral hearing should be given and the questions should be decided on consideration of the materials. However, Article 217 (3) of the Constitution does not guarantee a right of personal hearing nor is a personal hearing a necessary incident of rules of natural justice. Excepting in proceedings in Courts, a mere denial of opportunity of making an oral representation will not, without more, vitiate the proceedings. A party likely to be affected by a decision is entitled to know the evidence against him and to have an opportunity of making a representation. He, however, can not claim that an order made without affording him an opportunity of a personal hearing is invalid. In Abdus Salam @ A. Salam (supra) a Division Bench of this Court held that there is nothing rigid or mechanical about the principles of natural justice. Whenever there is a reference to the rules of natural justice, it signifies that the principle and procedure, which are to be applied, have to be such which in any particular set of circumstances, are right, just and fair. Following AIR 1981 SC 136 (S.L. Kapoor Vs. Jagmohan) in Aligarh Muslim University (supra) the Supreme Court held that if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words, if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order, which was passed in violation of principle of natural justice. Of course, this being an exception, the great care must be taken in applying this exception.
Upon going through the aforesaid judgements, it is crystal clear that rule of personal hearing contemplates reasonable opportunity in each and every case. But when we go through Section 126(3) of the Act, we find that requirement "after affording a reasonable opportunity of hearing to such person" is an integral part of the section. Section 126 (3) of the Act is quoted hereunder:
"(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."
There is a reason behind it. A person's essential service i.e. supply of electricity has been disconnected. Such person has also been alleged with a charge of theft, meaning thereby element of criminal procedure is inbuilt in it. Therefore, the consequences are penal consequences. Against such background, affording personal opportunity of hearing is essential in nature. All the cases discussed above, excepting one Transmission Corpn. of A.P. Ltd. (supra), are not connected with the relationship of consumer and the electrical authority. It is true to say, as also held therein, that natural justice can not be covered by any straitjacket formula but it depends upon the circumstances of the case. However, when law contemplates a personal hearing, it will not be proper for us but to direct the authority to pass order afresh upon giving reasonable opportunity of personal hearing.
Against this background, we quash the order dated 02nd February, 2011, impugned in this writ petition, and send the matter back to the authority concerned to hear out the matter upon giving fullest opportunity of hearing to the petitioner and to pass a fresh reasoned order. But as a precondition of the hearing, 50% of the claim amount will be deposited by the petitioner within a period of one month from the date of communication of this order and upon giving intimation to the respondents with regard to deposit of the same, opportunity of hearing will be given and order will be passed by the authority concerned within a period of fifteen days thereafter. However, out of total amount, 25% will be deposited by the petitioner in cash and to meet the 50% i.e. half of the total amount, rest 25% will be deposited by the petitioner by way of security other than cash or bank guarantee, subject to the satisfaction of the authority concerned.
Accordingly, the writ petition is disposed of, however, without imposing any cost.
(Justice Amitava Lala) I agree.
(Justice Ashok Srivastava) Dated: 20th August, 2011.
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Hon'ble Amitava Lala, J.
Hon'ble Ashok Srivastava, J.
Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 10.00 A.M. in the Court upon notice to the parties.
The writ petition is disposed of, however, without imposing any cost.
Dt./- 20.08.2011.
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For judgement and order, see order of the date passed on the separate sheets (thirteen pages).
Dt./-20.08.2011.
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