M/S Sartaj Rice Mill Thru' Its ... vs Paschimanchal Vidhyut Vitran ...
2015 Latest Caselaw 2966 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 32 
 
Case :- WRIT - C No. - 55505 of 2015
 
Petitioner :- M/S Sartaj Rice Mill Thru' Its Partner Maqsood Ali
 
Respondent :- Paschimanchal Vidhyut Vitran Nigam Ltd.
 
Counsel for Petitioner :- R.P.S. Chauhan
 
Counsel for Respondent :- Pranjal Mehrotra
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Mukhtar Ahmad,J.

(By Hon'ble Rakesh Tiwari, J)

Heard Shri R.P.S. Chauhan, learned counsel for the petitioner and Shri Pranjal Mehrotra, learned counsel for the respondents.

The petitioner-M/s Sartaj Rice Mill through its Partner Maqsood Ali is consumer of electricity having connection No. 1400/5466. On the basis of meter inspection reports dated 06.06.1999, 31.07.1999, 1.08.1999, 29.09.1999, 3.10.1999, 3.11.1999, 14.12.1999, 20.1.2000, 21.04.2000, 22.05.2000, an assessment notice was issued on 22.9.2000 to him by the Executive Engineer Electricity Division-II, Rampur, directing the petitioner to pay sum of Rs. 2,98,080/- within 7 days towards overload electricity consumption charges.

Further on the basis of meter inspection reports dated 12.06.2000, 27.07.2000, 03.08.2000, 29.10.2000, 10.11.2000 and 19.12.2000, an assessment notice for Rs.1,25,838/- was issued on 31.07.2001, directing the petitioner to deposit the amount.

Again, on the basis of meter inspection reports dated 23.01.2002, 9.2.2002, 28.5.2002, 13.08.2002, 01.07.2002, 26.08.2002, 08.09.2002, 13.10.2002, 30.11.2002 and 03.02.2002, an assessment notice for Rs.1,62,044/- was issued by respondent No. 2 against the petitioner on 03.06.2003 for deposit the said amount.

The petitioner claims to have preferred a comprehensive objection dated 04.05.2005 and reminder dated 15.04.2015 before the Executive Engineer, Electricity Division-II, Rampur, but when these remained unactioned, he preferred Civil Misc. Writ Petition No. 40178 of 2015, M/s Sartaj Rice Mill through its Partner Maqsood Ali vs Paschimanchal Vidhyut Vitran Nigam Ltd and Another. The only grievance of the petitioner pressed before the Court in the aforesaid writ was that his objection dated 04.05.2005 said to have been pending for last 10 years, may be directed to be decided by respondent No. 2 within some time bound frame. The Court vide order 22.07.2015 passed the following order:-

"Heard learned counsel for the parties and perused the record.

The only prayer of the counsel for the petitioner is that the objection of the petitioner dated 4.5.2005 may be directed to be decided by respondent no.2 within a time bound frame.

The standing counsel has no objection to this prayer.

In the circumstances, the petition is disposed of finally with a direction to respondent no.2 to decide the objection of the petitioner dated 4.5.2005 by a reasoned and speaking order, in accordance with law, after affording an opportunity of hearing to the parties concerned, within a period of four weeks from the date of production of a certified copy of this order. "

Pursuant to the aforesaid order passed by the Court, notice was issued by respondent No. 2 for hearing him on his objections on 22.08.2015. As a matter of fact, the matter could not be heard and 26.08.2015 was fixed in the case. On that date, the petitioner sought adjournment on the ground of illness of his counsel. The Authority however proceeded to hear the petitioner and passed impugned order dated 26.08.2015 directing him to deposit the entire amount of dues within 15 days. The order impugned reads:-

Ek0 mPp U;k;ky;] bykgkckn ds vkns'k fnukad 22-07-2015 ds vuqikyu esa lEcfU/kr izfrosnu fnukad 04-05-2005 ds lkFk layXu fu/kkZj.k uksfVl i=kad 1186] fnukad 22-09-2000 /kujkf'k :0 298080-00 ,oa fu/kkZj.k uksfVl i=kad 953] fnukad 31-07-2001 /kujkf'k :0 125838-00] ls vki lger FksA D;ksafd vkius vius i= fnukad 19-10-2001 ds ek/;e ls [k.M dk;kZy; esa /kujkf'k :0 150000-00 tek djokus gsrq ,oa 'ks"k jkf'k dh rhu fd'rs djus gsrq vuqjks/k fd;k Fkk] ftl ij rRdkyhu vf/k'kklh vfHk;Urk] fo|qr forj.k [k.M&f}rh;] jkeiqj ds izLrko dks v/kh{k.k vfHk;Urk] fo|qr forj.k e.My] jkeiqj }kjk Lohd`r dj fn;k x;k Fkk vkSj vkidh fo|qr ykbZu tksM+ nh x;h FkhA iqu% vkids }kjk Lohd`r fo|qr Hkkj ls vf/kd Hkkj miHkksx fd;s tkus ds dkj.k ,evkjvkbZ fjiksVZ fnukad 27-01-2003 ds vk/kkj ij i=kad 1041] fnukad 03-06-2003 /kujkf'k :0 162044-00 dk fu/kkZj.k fd;k x;k] ftldh fu/kkZj.k Nk;kizfr ,oa ,evkjvkbZ dh fjiksVZ dh Nk;kizfr dk voyksdu djus ij Li"V Kkr gqvk fd iwoZ d`r fu/kkZj.k vf/kd Hkkj /kujkf'k :0 162044-00 iw.kZr;k% ,evkjvkbZ dh fjiksVZ ij vk/kkfjr gSA

Aggrieved, the petitioner has come up in this writ petition.

The order is assailed by the petitioner on the grounds that the impugned assessment notices dated 22.09.2000, 31.07.2001 and 03.06.2003 are illegal arbitrary and against the provisions of law; as well as against the provisions of revenue Manual of U.P. Power Corporation, which were applicable at the relevant time and that neither date and time of Meter Inspection nor post of official(s), who had made the inspection was disclosed by the Executive Engineer E.U.D.D. IInd Division, Rampur. According to him, the recovery proceedings for alleged overload of electricity consumption being prior to 03.02.2002 the impugned notices of assessment were time barred on 03.02.2004 as provided under section 56(2) of the Electricity Act, 2003, which is mandatory in nature having been issued beyond period of 2 years. This section is applicable to the case of the petitioner as it has come in force w.e.f. 25.05.2003; that the petitioner had appeared before respondent No.2 on 22.08.2015. He claims to have produced the original receipt of filing of copy of his objection dated 04.05.2005, in the office of respondent No. 2 along with reminder dated 15.04.2015 and the postal receipt before the Authority. In this regard, he also preferred an application for cancellation of the assessment notices dated 22.09.2000, 31.07.2001 and 03.06.2003 for treating them as time barred under section 56(2) Electricity Act, 2003 and an another application, seeking opportunity for cross-examination of the officials of electricity department, who had allegedly taken MIRs in question was moved and also filed a third application submitting the copy of commercial and Revenue Manual of U.P. Powers Corporation Ltd in support of his case.

The order impugned is also assailed by him on the ground that on 22.08.2015, the matter was not heard as the Authority was not available in which the next date for hearing was fixed 26.08.2015. On this date his counsel was not available due to his illness and as such an application was moved by the petitioner for adjournment of hearing after a week. It is stated that under the Provisions of para-3.1 Chapter-7 Commercial Revenue Manual read with Article 6.8 (c) (i) of U.P. Electricity Supply Code, 2005, respondent No. 2 was also required to decide the representation of the petitioner by a reasoned and speaking order after affording an opportunity of hearing to the petitioner, but the Executive Engineer proceeded and passed the impugned order dated 26.08.2015 ex-parte in an illegal and arbitrary manner against the provisions of law without considering the objections of the petitioner though order dated 22.07.2015 was passed by this Court in Writ Petition No. 40178 of 2015 with the consent of the learned counsel for the respondents directing respondent No. 2 to decide the objections dated 04.05.2015 of the petitioner by a reasoned and speaking order.

It is argued that final assessment was not made in the order impugned in pursuance of the impugned provisional assessment notices, therefore, direction issued by the respondent No. 2 to the petitioner for depositing the entire amount under the assessment notices aforesaid is contrary to law and in violation of order of this Court dated 22.07.2015 passed in Writ Petition No. 40178 of 2015. Counsel for the petitioner has relied upon in paragraph 45 of the petition, for challenging the findings recoded in para-2 of the impugned order. Para-45 of the writ reads as under:

"That the finding recorded in the impugned order dated 26.8.2015 that the petitioner was agreed with assessment notices dated 22.9.2000 and 31.7.2001 as by his application dated 19.10.2001 he sought 3 instalments of Rs. 1,50,000/- which was accepted and his electricity connection was restored, is incorrect and perverse however the petitioner was never agreed with said assessment notice dated 22.9.2000 and 31.7.2001 whereas he has challenged the same on merit. The said application dated 19.10.2001 might be under protest subject to the final disposal of proceedings. The statutory objection of the petitioner cannot be denied to be decided on merit only on the ground of alleged expressing willingness by the petitioner to deposit the demanded money."

In support of his contention, learned counsel for the petitioner has further relied upon paragraphs No. 63, 64, 77, 78 and 79 of the decision rendered by this Court in the case of Ashok Kumar and others vs State of U.P. and others passed in Writ Petition No. 21984 of 2008 decided on 18.07.2015. Paragraphs are reproduced below for ready reference.

"63. Para 6.8 (a), (b) and (c) of Code, 2005 deals in detail the procedure for inspection, provisional assessment, hearing and final assessment in the case of unauthorised use of electricity and reads as under:

"6.8 Procedure for Inspection, Provisional assessment, Hearing and Final Assessment in case of unauthorised use of electricity (UUE) under Section 126 of the Act

(a) (i) An Assessing Officer shall suo-moto, or on receipt of reliable information regarding unauthorised use of electricity or on instruction from higher authority, promptly conduct inspection of such premises, exercising due diligence. (Annexure 7.3 (1))

(ii)The assessing Officer, if required to do so, may handover his business card to the consumer before entering the premises. Photo ID card shall be carried by each team members.

(iii)The access to consumer premises shall be in accordance to clause 4.30 to 4.34. Provided that the occupant of the place of search or any person on his behalf shall remain present during the inspection. A list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list.

(iv) The report shall be prepared at site giving details of connected load, condition and details of old seals and resealing done, working of meter, details of new seals. The report shall mention any irregularity noticed which may lead to an inference of unauthorised use of electricity in the format given Annexure 6.4. The Inspecting Officer shall carry seals for this purpose.

(v) The report shall clearly indicate whether or not conclusive evidence substantiating the fact that UUE was found. The details of such evidence should be recorded in the report. The report shall be signed by each member of the inspection team and handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report shall be pasted at a conspicuous place in/outside the premises and may be photographed. Simultaneously, the report shall be sent to the consumer under Registered Post/Speed post on the day or the next day of the inspection.

(vi) Within 3 working days of the date of inspection, the Assessing Officer shall analyse the case after carefully considering all the evidence including the consumption pattern, wherever available and the report of inspection. If it is concluded that no unauthorised use of electricity has taken place, no further action will be taken.

(b) Notice to the Consumer and his reply:

(i) If the Assessing Officer suspects that Unauthorised Use of Electricity has taken place (as defined under Explanation to Section 126 of the Act), he will serve a provisional assessment bill alongwith show cause notice to the consumer, giving 15 working days for submission of reply, under proper receipt fixing a date of hearing. (ii)The notice shall invite objections in writing from the consumer against the charges and provisional assessment and require presence of the consumer on the date of hearing.

(c) Hearing

(i) On the date of hearing, the Assessing Officer shall hear the consumer. The Assessing Officer shall give due consideration to the facts submitted by the consumer and pass, within 7 working days, a speaking order as to whether the case of UUE is established or not. The order shall contain the brief of inspection report, submissions made by the consumer in his written reply and during hearing.

(ii) 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 consumer shall be required to make the payment within 15 days of receipt of final order for assessment.

(iii) If the Assessing Officer finds that unauthorised use of electricity has taken place (as defined under explanation to Section 126 of the Electricity Act, 2003, it shall be presumed unless contrary is proved, that such unauthorised use of electricity was continuing for either actual period of misuse, if available, or three months immediately preceding the date of inspection in case of domestic and agriculture services and for a period of six months immediately preceding the date of inspection for all other categories of services, and he shall provisionally assess the consumption as per the procedure specified in Annexure 6.3.

(iv) The assessment under (iii) above shall be made at a rate equal to one-and-a-half times the tariff rates applicable for the relevant category of service. The amount billed at this rate (one-and-a-half times the tariff rates) shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly/annual charges, wherever applicable."

64. A perusal of para 6.8 (a) (i), (ii), (iv) and (v) shows that it presupposes an inspection of the premises to be made by the assessing officer and if he finds evidence of irregularities constituting unauthorised use of electricity at the premises, shall prepare a report at the site, giving details thereof, and, would handover the copy of such report to the consumer or his representative at the site itself. In case of refusal by consumer or its representative, to either accept or giving receipt to such report, the same shall be pasted at a conspicuous place at the premises and shall also be sent to the consumer under registered post/speed post on the day itself or the next day of the inspection. Therefore, the requirement of prima facie conclusion is supposed to be recorded by the assessing officer at the time of inspection itself and needs to be communicated to the consumer. Para 6.8 (b) (ii) shows that the notice shall require the consumer to give his objections against the charges and provisional assessment. Para 6.8 (c) (i) shows that an opportunity of personal hearing shall also be given to the consumer and thereafter the assessing officer shall pass a speaking order recording (i) whether unauthorised use of energy is established or not, and; where it is so established, (ii) shall determine the quantum of the amount which the consumer has to pay i.e. the assessment shall be made by the assessing officer. Thus even Code, 2005 which contains the conditions of electricity supply etc., provides a detailed procedure in which the assessment would have to be made by the assessing officer.

77. From the above discussion it is also evident that the procedure prescribed in para 6.8 of Code 2005, while issuing provisional assessment notice has not been followed at all. Before issuing a demand notice under Section 3 of 1958 Act, admittedly no final order of assessment as contemplated under para 6.8 (c) (i) and (ii) has been passed by the assessing officer. There is no averment in the counter affidavit that MRI report and its findings were made available to the consumers at the time of inspection or alongwith provisional assessment notice after discussing and substantiating the alleged irregularity as required in para 6.8 (a) (iv) and (v). Therefore, it cannot be said that a valid and proper assessment notice was issued to the petitioners which could have been replied by them effectively. The kind of notice issued to the petitioners mentions only that on 15.01.2008 departmental officers/ enforcement squad found excess load/ theft of energy/other irregularities and, therefore, as per Code, 2005 the assessment to the following effect is made and if they want to give any objection, may file the same within seven days, failing which recovery proceeding would be initiated. This is non compliance of para 6.8 of Code, 2005.

78. Para 6.8 (b) (i) also require assessing officer to give 15 working days time for submission of reply and sub-clause (ii) thereof shows that he shall also fix a date of hearing on which date the consumer shall be heard in person. No such procedure has been followed by the assessing officer in the case in hand, therefore, the impugned provisional notices cannot be sustained being wholly illegal, contrary to the procedure prescribed in para 6.8 of Code, 2005 read with Section 126 of the Act, 2003.

79. In the result, these writ petitions are partly allowed. The impugned provisional/final assessment notices issued under Section 126 of the Electricity Act, 2003 as well as demand notice issued under Section 3 of the U.P. Government Electrical Undertaking (Dues Recovery) Act, 1958, impugned in these writ petition, are hereby quashed. However, the respondents shall be at liberty to take appropriate steps and pass fresh order in view of the observations made above and in accordance with law. The petitioners shall be entitled to cost which is quantified to Rs. 2000/- for each set of writ petition."

Learned counsel then relied upon paragraphs No. 9, 10, 20, 23 and 24 of the judgment in writ petition No. 9090 of 2012, Satya Narayan vs U.P. Power Corporation Ltd and others (supra) decided on 22.05.2013, they read as under:-

"9. While filing counter affidavit, respondents have not explained as to whether between 1997-1998 and 2012 any demand notice was sent and in case it has been sent, then it has not been brought on record. An adverse inference may be drawn that no demand notice was sent for more than 12 years by the respondents to recover the alleged dues in question. During the pendency of writ petition, the parties entered into compromise which has been admitted by the petitioner through supplementary affidavit. On payment of an additional amount of Rs.2841/-, parties have settled the dispute. Hence to that extent so far as the recovery proceeding is concerned, the writ petition seems to have lost efficacy.

10. However, during the course of hearing, it came to the light that for 12 years, the department has not taken action to recover the dues and nothing has been brought on record in reply to the averments contained in the writ petition to the extent that the business and the shop has been closed hence the electricity in question was not utilised for the purpose of business and even the petitioner's house is in dilapidated condition. An inference may be drawn that electricity connection either was either disconnected or not utilised since 1997-1998. There appears to be serious negligence on the part of the U.P. Power Corporation.

20. In the present case, there appears to be no notice sent by the respondent U.P. Power Corporation to the petitioner for about 12 years. Accordingly, respondents will have no right to recover dues in the name of electricity charges after lapse of two years from the year when the petitioner claims that electricity was disconnected and he has closed the shop.

23. In view of the above, we mould the relief and permit the petitioner to approach the respondent authority concerned for refund of dues keeping in view the observations made in the present judgment in case the amount paid by him, is higher than what he may be liable to pay in a period of two years. It shall be appropriate for the U.P. Power Corporation to issue appropriate order or direction keeping in view the observation made in the body of the present judgment to make employees aware with regard to their duties under the Electricity Supply Code, 2005 as well as public.

24. In view of the above, the writ petition is allowed and the relief is moulded. A writ in the nature of mandamus is issued directing the respondent Corporation to issue appropriate order or circular keeping in view the observation made in the present judgment expeditiously say, within two months and submit a compliance report to this Court in three months. The petitioner shall be entitled for refund of dues in case he has paid higher amount than what required to pay in the light of the observation made in the present judgment. Any representation moved by the petitioner, shall be decided expeditiously say within two months from the date of service of certified copy, keeping in view the observation in the present judgment.

Registrar shall communicate the judgment to Managing Director U.P. Power Corporation within two weeks. Registry to take follow up action.

The writ petition is decided accordingly. No orders as to costs."

Per contra, learned counsel for the respondents Shri Pranjal Mehrotra submits that impression given by the learned counsel for the petitioner that order impugned is an ex-parte order is incorrect. Its perusal shows that petitioner was present on that date and was heard before final assessment was made. As regards, the objection dated 04.05.2005 of the petitioner is concerned, it has been duly considered in the impugned order noting the fact that the petitioner had himself made an offer by means of letter dated 19.01.2001 that he was ready to deposit the sum of Rs.1,50,000/- and the balance amount with interest in three instalments. According to him, the recovery continued to exist as final assessment for the reason that the petitioner had not disputed the amount under the notices and had himself offered for payment of the said amount, but had not paid the same. Instead he preferred writ petition No. 40178 of 2015 after about 14 years and obtained orders for deciding representation/ objection dated 04.05.2015 concealing relevant fact that he had already admitted the amount under the notices and had offerred for payment of the amount vide his letter in writing as far back as on 19.01.2001.

After hearing learned counsel for the parties and on perusal of Provision of Para 3.1 Chapter 7, Commercial and Revenue Manual, we are of the opinion that these provisions show that assessment has to be made after providing an opportunity of hearing to the petitioner to submit his case so that the cases of assessment of recovery of dues may be contested effectively before the Court. It is apparent from the impugned order that it has been passed in pursuance of the order dated 22.07.2015 passed in Writ Petition No. 40178 of 2015 after affording opportunity to the petitioner. Though the petitioner was present on 22.08.2015, he failed to provide a copy of his representation dated 04.05.2005 or the receipt issued by the clerk of the Electric Distribution Division-II, Rampur, hence it cannot be said that the order is ex parte or in violation of the principles of natural justice.

Reading of paragraph No. 2 of the impugned order further shows that petitioner had accepted the amount of Rs.2,980,80/-, Rs.1,25,838/- and Rs.1,62044/- assessed in the impugned notices dated 22.09.2000, 31.07.2001 respectively, by means of his letter dated 19.10.2001 whereby he informed the Sub-Divisional Officer that he is ready to deposit a sum of Rs.1,50,000/- and the remaining amount with interest in three instalments the then Executive Engineer, Electricity Distribution Division-II, Rampur had approved and accepted the offer of the petitioner where-upon his, electricity connection which had been disconnected was again re-energized.

It is apparent from the aforesaid conduct of the petitioner that since he was consuming energy more than the sanctioned load, therefore assessment of Rs.1,62,044/- was again provisionally made against the petitioner which he was informed vide letter dated 03.06.2003 and that on perusal of the copy of the assessment order as well as the meter inspection report in presence of the petitioner, this provisional amount which was based on the actual meter reading of the Electrical Energy consumed by the petitioner as appeared from the meter inspection reports. Therefore, it cannot be said that there was no material before the Authority to make any assessment. However, inspite of the fact that the offer of payment by the petitioner was accepted by the Executive Engineer yet the petitioner did not not deposit the amount and hence the order impugned had been passed in the presence of the petitioner after providing him an opportunity of hearing in pursuance of the orders dated 22.07.2015 passed by this Court. Therefore, the contention of the learned Counsel of the petitioner that it was an ex-parte order which has been passed without providing any opportunity of hearing to the petitioner is incorrect. Rather the application of the petitioner for adjournment of hearing on the ground of illness of his Advocate on 26.08.2015 could not accepted by respondent No. 2 as it was not possible to disobey the order dated 22.07.2015 of this Court and he had to decid the matter within four weeks i.e. the time allowed by the Court.

As regards, the contention of the learned counsel for the petitioner that no final assessment has been made, suffice it to say that the petitioner had not disputed the amount of provisional assessments in the two notices dated 22.09.2000 and 31.07.2001, and therefore, insofar as these two assessments are concerned, the amount became final on offer being made by the petitioner for deposit of sum of Rs.1,50,000/- and remaining amount with interest in three instalments. Insofar as the third notice is concerned, the same also does not appear to be disputed by the petitioner on 26.08.2015, when he was present before the Authority, when the aforesaid provisional amount found on the basis of actual meter inspection reports was finally assessed the petitioner having been provided an opportunity of hearing as required by Provision of Para 3.1 Chapter 7, Commercial and Revenue Manual. The order impugned does not require any interference by this Court.

For all the reasons stated aforesaid, writ petition is dismissed.

Order Date :- 7.10.2015

Sumaira

(Mukhtar Ahmad, J) (Rakesh Tiwari, J)