HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - C No. - 21243 of 2011 Petitioner :- Dr. Munni Lal Respondent :- State Of U.P. And Others Petitioner Counsel :- R.K. Dubey Respondent Counsel :- C.S.C.,Mridul Tripathi Hon'ble Satya Poot Mehrotra,J.
Hon'ble Mrs. Jayashree Tiwari,J.
The petitioner has filed the present Writ Petition under Article 226 of the Constitution of India, inter-alia, praying for quashing the Demand Notice dated 29th October, 2010 (Annexurre 5 to the Writ Petition) issued by the respondent no.3 requiring the petitioner to deposit an amount of Rs. 1,84,892/-.
It appears that checking was allegedly made in the premises of the petitioner on 22nd October, 2010, and theft of electricity was allegedly detected. Copy of the Checking Report dated 22nd October, 2010 has been filed as Annexure 4 to the Writ Petition. The said Checking Report does not bear the signature of the consumer (petitioner).
It further appears that a Notice dated 29th October, 2010 (appearing at page 26 of the Paper-Book of the Writ Petition) was sent to the petitioner, inter-alia, stating that an amount of Rs. 1,84,892/- was provisionally assessed against the petitioner, and in case the petitioner wanted to file any objections, the same be done within seven days of the issuance of the said Notice dated 29th October, 2010. A Demand Notice dated 26th October, 2010 (appearing at page 27 of the Paper-Book of the Writ Petition) under Section 3 of the U.P. Government Electrical Under-Taking (Dues Recovery) Act, 1958 was also enclosed with the said Notice dated 29th October, 2010. A Bill dated 26th October, 2010 (appearing at page 28 of the Paper-Book of the Writ Petition) showing the calculation in respect of the Provisional Assessment was also enclosed with the said Notice dated 29th October, 2010.
The petitioner has thereupon filed the present Writ Petition seeking the reliefs as mentioned above.
We have heard Shri R.K. Dubey, learned counsel for the petitioner, the learned Standing Counsel appearing for the respondent no.1 and Smt. Mridul Tripathi, learned counsel for the respondent nos. 2 and 3, and perused the record.
Smt. Mridul Tripathi, learned counsel for the respondent nos. 2 and 3 has obtained instructions in the matter.
Shri R.K. Dubey, learned counsel for the petitioner has referred to various provisions contained in the Electricity Act, 2003 and the U.P. Electricity Supply Code, 2005, and has submitted that the procedure laid down in the said provisions has not been followed in case of the petitioner.
It is submitted that the Notice dated 29th October, 2010 was issued to the petitioner giving only seven days time for filing objections while the provisions contained in Clause 8.1 (b) (iii) require Show Cause-Notice giving 15 working days time for filing objections.
It is further submitted that the Demand Notice under Section 3 of the U.P. Government Electrical Under-Taking (Dues Recovery) Act, 1958 was issued on 26th October, 2010 even without waiting for the objections to be filed by the petitioner against the Provisional Assessment and disposing of the same in accordance with the relevant provisions of the Electricity Act, 2003 and the U.P. Electricity Supply Code, 2005.
In reply, Smt. Mridul Tripathi, learned counsel for the respondent nos. 2 and 3 submits that the procedure as laid down in the Electricity Act, 2003 and the U.P. Electricity Supply Code, 2005 has been followed in the present case.
We have considered the submissions made by the learned counsel for the parties.
Section 126 of the Electricity Act, 2003 lays down as follows:
"126. Assessment.-(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom a notice has been served under subsection (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to twice the tariff rates applicable for the relevant category of services specified in sub-section (5).
Explanation.- For the purposes of this section,-
(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b)" unauthorised use of electricity" means the usage of electricity-
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised."
Section 127 of the Electricity Act, 2003 lays down as follows:
"127. Appeal to Appellate Authority.- (1) Any person aggrieved by a final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.
(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.
(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.
(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.
(5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties.
(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent per annum compounded every six months."
Clause 8.1 (b) (iii) (iv) & (v) of the U.P. Electricity Supply Code, 2005 laid down as under:
"(iii). If the Assessing Officer of the licensee suspects that theft of Electricity has taken place (as defined under Section 135 of the Act), he will serve the provisional assessment bill alongwith show cause notice to the consumer for hearing, giving 15 working days, under proper receipt. The notice shall invite objections in writing from the consumer, if any, against the charges and provisional assessment and require the presence of the consumer to answer to all the charges imposed by the licensee.
(iv) If, after hearing, the authorized officer finds that a case of theft has been established, the assessment shall be done for the energy consumption for past period as per the assessment formula given in Annexure 6.3 on (two) times the rates as per applicable normal tariff to the purpose for which the energy is abstracted, used or consumed or wasted or diverted, whichever is higher and demand and collect the same by including the same in a separate bill. This is in addition to any civil/criminal proceedings that may be instituted as provided by the Act, and described in clause 8.2 (vii).
(v) A copy of the order shall be served to the consumer under proper receipt and in case of refusal to accept the order or in absence of the consumer, shall be served on him under Registered Post/Speed Post. The Authorized officer may extend the last date of payment or approve the payment to be made in instalments on a consideration of the financial position and other considtions of the licensee. The amount, the extended last date and/ or time schedule of payment/instalments should be clearly stated in the speaking order."
From the above-quoted provisions of Clause 8.1(b) (iii), (iv) and (v) of the U.P. Electricity Supply Code, 2005, it will be noticed that the Assessing Officer is required to serve the Provisional Assessment Bill along with Show Cause-Notice to the consumer for hearing, giving 15 working days, under proper receipt. The notice shall invite objections in writing from the consumer, if any, against the charges and Provisional Assessment and require the presence of the consumer to answer to all the charges imposed by the licensee. If, after hearing, the authorized officer finds that a case of theft has been established, the assessment shall be done for the energy consumption in accordance with the provisions contained in Clause 8.1 (b) (iv), and the authorized officer shall demand and collect the same by including the same in a separate bill. A copy of the order shall be served to the consumer under proper receipt, and in case of refusal to accept the order or in absence of the consumer, shall be served on him under Registered Post/Speed Post.
From the provisions contained in Section 126 of the Electricity Act, 2003 also, it follows that the Assessing Officer to required to provisionally assess the electricity charges payable by the person concerned in case of unauthorized use of electricity. The order of Provisional Assessment is required to be served on the person concerned. The person concerned, on whom the Provisional Assessment is so served, is entitled to file objections. The Assessing Officer is required to give reasonable opportunity of hearing to such person and pass a Final Order of Assessment in respect of such person.
The person concerned, in case he is aggrieved by such Final Order of Assessment, is entitled to file Appeal under Section 127 of the Electricity Act, 2003 against the said Order.
In the present case, it will be noticed that Show Cause-Notice dated 29th October, 2010 gave only seven days' time to file objections against the Provisional Assessment.
As noted above, Clause 8.1 (b) (iii) of the U.P. Electricity Supply Code, 2005 requires that Show Cause-Notice will be given giving 15 working days for filing objections.
The Show Cause-Notice dated 29th October, 2010 also did not fix any date for hearing as contemplated in Clause 8.1 (b) (iii) of the U.P. Electricity Supply Code, 2005.
No Final Order of Assessment was passed in the case of the petitioner. Instead, a Demand Notice dated 26th October, 2010 was also enclosed with the Show Cause-Notice dated 29th October, 2010. The occasion for issuance of Demand Notice under Section 3 of the U.P. Government Electrical Under-Taking (Dues Recovery) Act, 1958 would have arisen only after the Final Order of Assessment were passed in respect of the petitioner.
It will thus be noticed that the respondent nos. 2 and 3 have not followed the procedure as laid down in the Electricity Act, 2003 and the U.P. Electricity Supply Code, 2005 before issuing the Demand Notice dated 26th October, 2010.
In view of the above, the Demand Notice dated 26th October, 2010 (appearing at page 27 of the Paper-Book of the Writ Petition) issued under Section 3 of the U.P. Government Electrical Under-Taking (Dues Recovery) Act, 1958 is liable to be quashed, and the same is hereby quashed.
It is further directed as under:
(1) Within 15 days from the date of issuance of a certified copy of this order, the petitioner may submit his objections before the respondent no.3 against the Provisional Assessment dated 29th October, 2010 (appearing at pages 26 and 28 of the Paper-Book of the Writ Petition) along with a certified copy of this order.
(2) On receipt of such objections from the petitioner, the respondent no. 3 will proceed to dispose of the same in accordance with law by passing a speaking and reasoned order in the matter after giving reasonable opportunity of being heard to the petitioner expeditiously, preferably within a period of six weeks of the receipt of the above documents.
The Writ Petition is accordingly allowed with the aforesaid observations and directions.
Order Date :- 19.5.2011 Ajeet