Allahabad High Court
Vijay Pal Singh vs State Of U.P. And 2 Others on 2 February, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 3147 of 2021
Petitioner :- Vijay Pal Singh
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Sumit Suri,Nipun Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar
Hon'ble Naheed Ara Moonis,J.
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Shri Ajay Kumar, learned counsel appearing for respondents no.2 & 3.
The instant petition has been filed seeking following reliefs :
"(i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned recovery notice dated 08.12.2020 issued by the respondent no. 3 u/s 3 of The Uttar Pradesh Government Electrical Undertaking (Dues Recovery) Act, 1958 (Annexure No.1 to the writ petition);
(ii) Issue a writ, order or direction in the nature of Mandamus commanding the respondent authorities not to recover any amount from the petitioner in pursuance of the impugned recovery notice dated 08.12.2020 issued by the respondent no.3 u/s of The Uttar Pradesh Government Electrical Undertaking (Dues Recovery) Act, 1958,
(iii) Issue a writ, order or direction in the nature of Mandamus commanding the respondent no. 2 to decide the objection of the petitioner dated 23.12.2020 within a time bound period as directed by this Hon'ble Court (Annexure No.4 to the writ petition)."
Submission of learned counsel for the petitioner is that the petitioner had a valid electricity connection at his residence. The premises of the petitioner was inspected on 19.09.2020. A report was submitted that the petitioner is using electricity by illegal means on the same day. The petitioner has not been served a provisional notice and the final assessment was made. Thereafter, the recovery proceeding has been initiated by means of the impugned recovery notice for Rs.3,78,783/-. Learned counsel for the petitioner also submits that without giving any opportunity of hearing to the petitioner, final assessment of electricity dues is bad in the eyes of law and the same may be quashed. The petitioner has moved a representation dated 23.12.2020 which is still pending. He further submits that the petitioner has been informed in writing, after filing of the present petition, giving an opportunity to appear in person for redressal of his grievance.
Learned counsel for the respondents no. 2 & 3 submits that the petitioner was using electricity by illegal means and the provisional assessment was made on 12.10.2020 when no reply was given by the petitioner it was treated as final assessment pursuant to which the demand notice was issued by respondent no. 3. However, he has not been able to show that in case, after provisional assessment if any person fails to give reply within 15 days, the same provisional assessment shall be treated as final assessment. We are not at all convinced that in absence of any objection to the provisional assessment it shall be treated as final assessment.
At this stage, we deem it proper to reproduce paragraph 16 of the judgment passed in the case of Shishir Jain vs. Paschimanchal Vidyut Vitran Nigam Ltd. and Another, 2017 (3) AWC 3084, wherein it has been held by a Division Bench of this Court that if there is no final assessment, the petitioner cannot be compelled to deposit the amount of provisional assessment. The relevant paragraph 16 of aforesaid judgment reads as under :
?16. Be that as it may, in case there is no final assessment as suggested by the learned counsel for the respondent, the petitioner cannot be compelled to deposit the amount of provisional assessment. Without making final assessment after considering the objection and giving opportunity to the petitioner, he cannot be compelled to deposit any amount. In such circumstances, the two impugned notices dated 4.3.2017 issued by respondent no.2 are not liable to be sustainable and are hereby quashed.?
In view of aforesaid, we are of the opinion that petitioner could not be compelled to deposit any amount on the basis of provisional assessment without affording any opportunity of hearing to him, while making any final assessment, that too without supplying the copy of the said order. The entire procedure adopted by respondent no.3 dehors the statutory provisions of Section 126 of the Act, 2003 and Clause 8.1 of the Code 2005. The Clause 8.1 of the Code, 2005 provides the procedure to be adopted by licensee for inspection, provisional assessment, hearing and final assessment in case of theft of electricity. Amount which is mentioned in the provisional assessment has been treated as final assessment without affording any opportunity of hearing, the same is in violation of principles of natural justice.
Considering the facts and circumstances of the case, but without entering into the merits of the case, this writ petition is disposed of directing the respondent no.3 to consider the grievance of the petitioner as well as the representation dated 23.12.2020 and pass an appropriate, reasoned and speaking order regarding final assessment after giving due opportunity of hearing to the petitioner, as expeditiously as possible, preferably within a period of four weeks from the date of receipt of a copy of this order.
Till any final decision is taken on the representation of the petitioner, no coercive action shall be taken against him pursuant to recovery citation notice dated 12.10.2020.
It is made clear that if the petitioner fails to appear before respondent no.3 as indicated above, he shall not be entitled to get the benefit of this order.
Order Date :- 2.2.2021
VR/
