Vinod Kumar Agarwal vs State Of U.P. And Others
2012 Latest Caselaw 2814 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 32
 

 
Case :- WRIT - C No. - 24772 of 2012
 

 
Petitioner :- Vinod Kumar Agarwal
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Sujeet Sinha
 
Respondent Counsel :- C.S.C.,Anubhav Shukla,Subhash Gosain
 

 
Hon'ble Sunil Ambwani,J.

Hon'ble Aditya Nath Mittal,J.

1. We have heard Shri Sujeet Sinha, learned counsel appearing for the petitioner. Learned Standing Counsel appears for the State respondents. Shri Mehboob Ahmad appears for U.P. Power Corporation Ltd.

2. On 30.5.2012, we passed following orders as follows:-

"In this local matter in which case of action has arisen at Allahabad, for last 15 days, learned counsel appearing for the Executive Engineer, Electricity Distribution Division-II, Purvanchal Vidyut Vitran Nigam Ltd., U.P. Power Corporation Ltd., Allahabad has not been able to obtain instructions. Today once again a prayer has been made by Shri Subhash Gosain to grant him time to seek instructions whether any final assessment was completed under Section 126 (3) of the Electricity Act, 2003 before issuing recovery certificate.

In the electricity matters coming before the Court we are hardly getting any assistance from the counsels appearing for the Electricity Department. They are unable to obtain instructions even after a period of more than two to three weeks. Now an excuse has been given that the counsels have been changed and the work is being reallocated.

In the present case it is stated that the petitioner has commercial connection from which he is doing book binding business. The assessment has been made without deciding the petitioner's objections treating the work to be industrial work.

In the crime of theft of electricity reported by the Executive Engineer, the police has submitted final report on the ground that offence has been compounded.

Let the respondent file counter affidavit within three weeks.

Until further orders, in case the petitioner deposits Rs.75,000/- within a week, the recovery of the remaining amount shall remain stayed. The petitioner's connection will also be reconnected and the matter whether the petitioner does not fall within the category of commercial or industrial will be decided by the Executive Engineer.

Since large number of cases are coming from all over Uttar Pradesh in which citations are being issued under the U.P. Government Electricity Undertaking (Recovery of Dues) Act, 1958, without making any final assessment, we direct the Managing Director of the U.P. Power Corporation to issue strict instructions to all the corporations distributing electricity, and the Executive Engineers of the Electricity Distribution Divisions of these Corporations, to comply with the provisions of Section 126 of the Electricity Act, 2003. They may be given strict instructions not to issue any recovery certificate until and unless a final assessment is made in theft case, after giving opportunity to the consumers under Section 126 (1) of the Act. Even if no objection has been filed, sub-section (3) of Section 126 provide that the Executive Engineer will record finding that the provisional assessment order was served upon the consumer and thereafter make final assessment by a reasoned order. If the objections have been filed, the Executive Engineer must consider these objections in his order before making final assessment and issuing recovery certificate.

The Managing Director, U.P. will comply with this order and submit report to the Court. The Registrar General will sent a copy of this order to the Managing Director of U.P. Power Corporation, Shakti Bhawan, Lucknow. Since large number of cases are pending in this Court, the Managing Director will also consider to withdraw the recoveries in which no final assessment order has been passed. The recoveries will be sent in future only in those cases in which final assessment orders are passed by the Executive Engineer, and which will also enable the consumer to get an opportunity to file an appeal under Section 127 of the Act.

List on 10th July, 2012."

3. Shri Mahboob Ahmad has filed an affidavit of Shri Awanish Kumar Awasthi, Chairman and Managing Director of U.P. Power Corporation Ltd, Shakti Bhawan, 14 Ashok Marg, Lucknow in compliance with the aforesaid orders. Along with the affidavit he has annexed an order dated 30.6.2012 passed by him in which he has quoted Section 126 of the Electricity Act, 2003, and Clause 6.8 of the U.P. Electricity Code, 2005 and has directed all the Corporations distributing electricity and the Executive Engineers of the Electricity Distribution Divisions to strictly follow the procedures prescribed under Section 126 of the Act and under Clause 6.8 of the Electricity Supply Code, 2005 and not to issue any recovery certificates, until and unless final assessment is made in theft case, after giving reasonable opportunity of hearing to the consumer/user under sub-section (3) of Section 126. The order, under sub-section (3) of Section 126, shall be passed within 30 days from the date of service of provisional assessment. He has also directed that the recoveries already issued without making final assessment should be withdrawn forthwith, but the same shall be issued again immediately after passing an order of final assessment and all such matters, in which recoveries are withdrawn, shall be finalized within a period of three months from the date of its withdrawal. In the last paragraph of the order dated 30.6.2012, the Chairman & Managing Director, U.P. Power Corporation Limited has directed all the officers to ensure that the recoveries will be sent in future only in those cases in which final assessment order has been passed, failing which necessary action shall be taken against the concerning/authorized officers.

4. We accept the affidavit of compliance and expect that in future all the officers of UP Power Corporation Ltd will follow the directions issued by the Chairman & Managing Director dated 30.6.2012.

5. So far as the present case is concerned, a counter affidavit has been filed, that since the recovery was sent on the basis of provisional assessment dated 1.12.2011 of Rs.1, 54, 816/-, the recovery was withdrawn and thereafter considering that the provisional assessment was served, the Executive Engineer has decided petitioner's objection and has passed final assessment order on 22.6.2012.

6. The Executive Engineer, Electricity Distribution Division (II), Purvanchal Electricity Distribution Corporation Ltd, George Town, Allahabad has also observed that in pursuance to the order of the Court dated 30.5.2012, a 2 KW Connection No. 936/1383/053846 for commercial category has been reconnected.

7. With the withdrawal of the provisional assessment, and making of the final assessment, the prayers made in the writ petition have become infructuous.

8. Shri Mahboob Ahmad informs that inspite of the order of the Court, the petitioner has not deposited Rs. 75,000/- within a week from 30.5.2012.

9. Learned counsel appearing for the petitioner submits that the certified copy of the order was received by him on 11.6.2012, and thus the petitioner could not pay the amount. However, the Amin has recovered Rs. 25, 300/- from him on 29.6.2012.

10. The petitioner was required to deposit Rs. 75, 000/- as a precondition of interim order. We find the explanation to be sufficient and allow the petitioner to deposit Rs. 75, 000/- after adjusting Rs. 23, 000/- towards the electricity dues realised from him on 29.6.2012. The remaining amount of Rs. 2300/- was realised as collection charges apparently on the ground that the petitioner had not complied with the order of the Court.

11. It will be open to the petitioner to file an appeal against the final assessment order, under Section 127 of the Electricity Act, 2003. If such an appeal is filed, the appellate authority will take into consideration the deposit of Rs. 23000/- and the remaining amount, if the same is deposited by the petitioner, for entertaining the appeal.

12. The writ petition is accordingly disposed of. We make it clear that where recoveries are withdrawn by the Executive Engineers in compliance with the order of the Chairman & Managing Director dated 30.6.2012, the State will not be entitled to realise the recovery charges from the U.P. Power Corporation. If any steps for recovery has been taken and any expenses have been incurred in recovery, the same will be realised from the consumer.

Order Date :- 10.7.2012

RKP