Dharmveer Singh vs State Of U.P. And Others
2012 Latest Caselaw 2510 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

"A.F.R."
 
Court No. - 34
 
Case :- WRIT - C No. - 30183 of 2012
 
Petitioner :- Dharmveer Singh
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- O.P. Gupta
 
Respondent Counsel :- C.S.C.,Nripendra Mishra
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Pradeep Kumar Singh Baghel,J.

1. Heard Sri O.P. Gupta, learned counsel appearing on behalf of the petitioner, learned Standing Counsel for respondent no.1 and Sri Nripendra Mishra, learned counsel for respondents no.2 and 3.

2. With the consent of learned counsel for the parties, we proceed to decide the matter, at this stage, under the Rules of the Court.

3. The petitioner is aggrieved by the demand notice dated 07.05.2012, Annexure-'7' to the writ petition, issued by respondent no.3 requiring to pay a sum of Rs.11,953/= pursuant to an assessment made on the basis of checking report no.1198/14 dated 13.10.2011. It is said that a checking team consisting of two Junior Engineers, an Inspector, Sub-Inspector and a few constables of police made a surprise checking in village Rajpur Kalan, Tehsil Khatauli, police station Jansath, district Muzaffar Nagar and found, amongst others, the petitioner committing theft of electrical energy by extracting electricity for running sugar cane Kolhu from the transformer installed about 100 meter away, near the hospital, by connecting it with three core cable and a 15 H.P. motor. Ten meters cable was also seized for convenience by the checking team and a First Information Report was lodged, being Case Crime no.275 of 2011, under Section 135 of Indian Electricity Act, 2003, Police Station Jansath, District Muzzafar Nagar on the same date.

4. The petitioner made a complaint in this regard to the higher authorities of the respondents pointing out that the alleged transformer where from it was said that the petitioner was committing theft of electrical energy, was already out of order since 28.09.2011 and several complaints were made by villagers for its replacement/repair, but the concerned Junior Engineer and the Sub-Divisional Officer did not listen their grievance unless their un-lawful demand is satisfied. Subsequently a false report was lodged against petitioner without caring to the fact that the transformer itself was lying defective since 28.09.2011, therefore question of extraction of electricity committing theft from the said transformer on 13.10.2011 could not have arisen. The aforesaid complaint was entertained by the Managing Director, Paschimanchal, U.P. Power corporation, Meerut and by letter dated 14.02.2012, he directed the Executive Engineer, Electricity Distribution Division, Muzaffar Nagar to verify the aforesaid complaint of villagers and submit report.

5. Instead of making any enquiry as directed above, the Executive Engineer issued a provisional assessment bill and a show cause notice dated 08.12.2012 to the petitioner making provisional assessment of Rs.11,953/=. The petitioner submitted a detailed reply/objection on 14.02.2012 and on the same date the Executive Engineer is said to have sent a letter i.e. dated 14.02.2012 informing the petitioner that the facts stated in First Information report are correct and copy of First Information Report is being sent to the petitioner. Thereafter an order was passed on 13.04.2012 stating that petitioner's representation is rejected and he should deposit the amount of assessment. A copy of final assessment order dated 30.04.2012 is on record as Annexure-'6' to the writ petition. Pursuant thereto the impugned demand notice has been issued.

6. From a bare perusal, it is evident that the final assessment order is a Cyclostyled order wherein there are two options and the assessing authority is supposed to tick one of these two. The order is at page 46 of the writ petition. First option is that, "the representation sent by you has not been received within the period prescribed"; and, the second is, "the representation after consideration is being rejected."

7. There is no third alternative like that the representation accepted, wholly or partly.

8. There is no scope of saying as to why the representation or the clarification given by the consumer is not acceptable. In fact the cyclostyled order shows complete absence of objectivity and non application of mind of the assessing authority. It contemplates a sheer mechanical exercise with a firm determination that the provisional assessment has to be made final by rejecting/ omitting representation of the consumer, may be on the pretext that it was not received or not acceptable. In no case it is going to be accepted fully or partly, as the case may be. This shows pre-determination of mind on the part of assessing authority. Such kind of cyclostyled order for fastening financial liability upon a person and that too with a serious allegation of theft of electrical energy is highly objectionable and deserve condemnation to hilt. This is patently illegal and arbitrary. No civil society governed by rule of law can admit such kind of arbitrary procedure for causing a stigma as well as fiscal liability upon a citizen. This Court while showing no sympathy with the persons engaged with theft of electrical energy, however, is cautious of the fact that innocent individual's reputation is also to be taken care. A serious allegation of theft of electrical energy cannot be levelled without sufficient proof. It is a serious business and require a very careful consideration with an objective mind. From a bare perusal of final order of assessment, it is evident that all these pre-requisites of law consistent with principles of natural justice are missing.

9. Sri Nripendra Mishra, learned counsel appearing on behalf of respondents no.2 and 3 could not dispute that the order of final assessment cannot be said to be a speaking order. It clearly demonstrates total non application of mind on the part of assessing authority.

10. This Court had an occasion to consider the manner in which case of assessment of electrical energy is to be dealt with, in Ashok Kumar and others Vs. State of U.P. and others, 2008 (6) ADJ, 660 (DB), (paragraphs 56 to 64). We respectfully express our countenance and agreement with the aforesaid view in which one of us (Justice Sudhir Agarwal) was also a member.

11. The impugned demand based on final assessment, from the petitioner, therefore, cannot sustain.

12. From the facts as discussed above, it is also evident that there was a serious question, which was to be investigated by Executive Engineer for which a direction was also issued by Managing Director as to whether the transformer in question was lying defective since 28.09.2011 as was complained by villagers, but without looking into this aspect of the matter, in a sheer illegal and arbitrary manner the Executive Engineer has proceeded to saddle the petitioner with responsibility of assessed amount and has forced him to pay the same. Had there been an extra care on his part, this could have not only avoided this litigation and unnecessary harassment of the petitioner, but even precious time of this Court could have been saved.

13. It appears that the assessing authority is not even aware as to why and in what manner the assessment is to be made and what steps he has to take and in what manner the assessment order is supposed to be passed. It is really unfortunate that fate of persons consuming electricity is left in the hands of such un-trained misguided persons. It is high time when the respondent- Corporation should consider to provide appropriate training to its officials who are entrusted with serious responsibility of assessments etc., which are quasi judicial proceedings so that un-necessary harassment of the consumers is avoided besides the avoidable litigation and waste of money and time of all.

14. In our view, not only this writ petition deserves to be allowed, but the petitioner should also be allowed exemplary costs. The impugned recovery as also the assessment order are hereby quashed. However, this order shall not preclude the respondent no.3 from passing a fresh order in accordance with law after giving due opportunity to the petitioner.

15. The petitioner shall be entitled to cost, which this Court quantify to Rs.25,000/= (rupees twenty five thousand). The respondent no.2 is given liberty to recover the amount of cost from the concerned official who passed the mindless assessment order without caring of the procedure prescribed in law after conducting an enquiry against him as permissible under law.

Order Date :- 15.6.2012.

Rks.