HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No.3 Civil Misc. Writ Petition No. 54089 of 2011 Lalit Kumar Kapoor................................................................Petitioner versus Kanpur Electricity Supply Company, Kanpur and another....Respondents. ...........
Present:
(Hon.Mr.Justice Amitava Lala & Hon. Mr.Justice V.K.Mathur) Appearance:
For the Petitioner : Mr. B.C.Rai For the Respondents : None ...........
Amitava Lala, J- On 19.9.2011 we wanted to dispose of this writ petition at the stage of admission with the following order :-
"In this petition, the petitioner has challenged the order of final assessment, which is appealable under the Electricity Act 2003and for the reason we are inclined to send the matter for the purpose of final adjudication.
However, learned counsel appearing for the petitioner has drawn our attention to the un-amended and amended provisions of section 126 (5) of the Electricity Act, 2003. He says that the condition of deposit for making such appeal will be applicable as per unamended provision of the Electricity Act, since, cause of action arose in the year, 2004. Provisional assessment was made thereafter, but the final assessment is made in the year 2011. Therefore, for the cause of action, which arose prior to amendment, if it is, heard by the appellate authority, it will be on the basis of the condition of depositing amount as per un-amended Act.
According to us, interpretation, as has been made by the learned counsel appearing for the petitioner, cannot be accepted for the simple reason that the provisional assessment is not the final assessment and there is no provision of appeal for the same. Cause of action of appeal will arise from the date of final assessment which has been made in the year, 2011. Therefore, the law prevailing on the date of final assessment will be applicable in connection with imposing of condition. Having so, the deposit in connection with preferring any appeal will be made pursuant to the amended Act, 2003.
Therefore, in disposing of the writ petition, we hold that in case the petitioner prefers an appeal within seven days from the date of obtaining certified copy of this order, it will be heard and disposed of upon giving fullest opportunity of hearing and by passing a reasoned order therein within a period of one month thereafter. No order is passed as to costs."
However, at the end of delivering the judgment Mr. B.C.Rai learned counsel for the petitioner wanted to make further submission on the question of law. Thus instead of putting our signature on the aforesaid order we posted the matter today i.e. dated 22.9.2011 for the purpose of further hearing. We also directed Mr. H.P.Dubey and Mr. Pankaj Shukla the learned counsel who are normally appearing for the Electrical authority to assist the Court for coming to the appropriate finding in respect of the issue as raised before us. No one is present today even learned counsel Ms. Mridual Tripathi formally appearing for the respondents is also not present before the Court though it was clear understanding that the Court wanted their assistance.
Mr. B.C.Rai learned counsel for the petitioner submitted before us that in case of final assessment pre-condition of provisional assessment is also there. Under section 126 (1) of the Electricity Act, 2003 inspection of any place or premises is one of the such conditions when under section 126(2) affording reasonable opportunity of hearing is the another condition. According to him no provisional assessment was made. But he has also contended before us that when he had filed a writ petition No.10105 of 2011 the Court by its order dated 3.3.2011 directed the authority for consideration of the representation of the petitioner. Ultimately the final assessment order was passed. His further submission is that element of reasonable opportunity will be available under Clause 6.8 (b)(i) , 6.8(c)(iii) read with 8.1(b) of the U.P. Electricity Supply code, 2005.
According to us, provisional assessment, reply thereto and final assessment is a process of reaching to a finality. Procedural law cannot override the substantive law. Therefore, when opportunity was given to place representation even on the basis of the order of the High Court, and the authority have given opportunity for hearing before making final assessment, procedural defect, if any, is condoned.
What would be the nature of reasonable opportunity that has been held in numerous occasions by Supreme Court i.e. AIR 1958 Supreme Court 300 (V 45C 48) (Khem Chand vs. Union of India and others) and 2006 3 SCC 74 (Transmission Corporation of A.P. Ltd. and others vs. Sri Rama Krishna Rice Mill). Moreover there is a provision of appeal from the order of final assessment. On enquiry we have come to know that it is a matter of theft and by way of final assessment a claim has been made for a sum of Rs. 10 Lakhs and odd. The petitioner's further submission is that the assessment proceeding of the year 2004 by virtue of Division Bench decision reported in 2005 All. C.J. 985 (Smt. R.S.Khan vs. State of U.P. And others) and several Division Bench decision and in Writ Petition No. 6409 of 2006 order passed on 01.02.2006 directing the respondents to comply with the directions without prejudice to the rights and contentions of the parties and subject to final decision to be taken by them.
The petitioner has also relied upon the judgment of the learned single Judge reported 2005 All.C.J.977 (Sri Bhagwan Gupta versus Kanpur Electricity Supply Company Ltd. and others).
The judgment in respect of rate equal to one-and half times the tariff rates applicable for the relevant category of services specified in sub-section (5) of Section 126 of the Act has persuasive value. Now it has been replaced by the word "twice" instead of one-and-half times. The petitioner again submitted before this Court on the basis of such judgment that since the cause of action being the part and parcel of the enquiry as regards theft arose long before coming to such amendment in the year 2007 (amended word) "twice" in sub-section 6 of 126 of the Act will not be applicable in the case of the petitioner.
We are of the view that whether any inspection was made or not or whether any provisional assessment was made upon giving any reasonable opportunity or not those allegations are merged in the earlier writ petition which has been filed by the petitioner in which an order was passed by a Division Bench of this on 3.3.2011 to consider the representation. The consideration of the representation is as good as the provisional assessment which cannot be re-opened by filing a further writ petition challenging the final assessment. Our point of consideration was whether this final assessment will be considered by the writ Court or it will be considered by the appellate authority under section 127 of the Act, 2003 when such alternative and efficacious remedy is available to the petitioner. The whole gamut of the petitioner submission is not to deposit any amount required to be deposited for the purpose.
According to us, in a particular case of theft such type of relaxation cannot be made. It is to remember that theft cannot be called as theft unless it is established before court of law finally, but it is also important to note that by virtue of such theft the interest of public at large have been affected from their essential service i.e. supply of electricity. The Court should not interfere with such type of prayer.
Against this background we cannot find any logical conclusion other than conclusion made herein above.
(Justice Amitava Lala) I agree.
(Justice V.K.Mathur) Dated: 22nd September, 2011 ssm/-