Allahabad High Court
Vinod Singh vs State Of U.P. And 3 Others on 19 January, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 1006 of 2021
Petitioner :- Vinod Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Rajneesh Pratap Singh
Counsel for Respondent :- C.S.C.
Hon'ble Naheed Ara Moonis,J.
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondent nos.1, 3 and 4 and Sri N.K. Tiwari, learned counsel for respondent no. 2.
Instant writ petition has been filed seeking following reliefs :
?I. Issue, writ, order or direction in the nature of certiorari quashing the recovery citation dated 13.7.2020 issued under Section 170 of the Electricity Act, 2003.
II. Issue, a writ, order or direction in the nature of mandamus directing and commanding the respondents not to take any coercive method against the petitioner.
III. Issue a writ, order or direction in the nature of mandamus commanding the authorities to done re-assessment against the petitioner in respect of recovery citation under the light of relevant fact mentioned in letter dated 08.01.2020.
IV. ..........
V. .........."
Facts of the case are that the petitioner is running a flour mill and regularly paying the electricity charges. On 19.11.2019 a checking team of the Electricity Department had inspected the petitioner's premises, and finding that the petitioner was using electricity by illegal means, a case was registered under Section 135 of the Electricity Act, 2003. The provisional assessment was made on 21.12.2019, against which the petitioner has moved a representation/objection on 8.1.2020.
Submission of learned counsel for the petitioner is that the respondent authority, without considering the representation/objection of the petitioner and affording opportunity of hearing to him, has passed the final assessment order dated 28.1.2020, which is bad in the eyes of law. It is further contended that respondent authority has not proceeded in accordance with the provisions contained in Section 126 (3) of the Act, 2003 and Clause 8.1 of the Electricity Supply Code, 2005 (in short 'Code, 2005') while making final assessment, as no opportunity of hearing has been afforded to the petitioner. In support of his contention learned counsel for the petitioner has relied upon the judgment passed by a Division Bench of this Court in Shishir Jain vs. Paschimanchal Vidyut Vitran Nigam Ltd. and another, 2017 (3) AWC 3084, wherein it has been held by the Court that in case there is no final assessment, the petitioner cannot be compelled to deposit the amount of provisional assessment.
Learned counsel appearing on behalf of respondent no.2 i.e. Power Corporation, submits that the provisional assessment was sent to the petitioner through registered post on 26.12.2019 and thereafter, the final assessment was made on 28.1.2020. However, learned counsel for the Power Corporation could not justify as to why the representation which has been filed 8.1.2020, well within the time after receipt of the provisional assessment, has not been considered while passing the final assessment order.
At this stage, we deem it proper to reproduce paragraph 16 of the judgment passed in the case of Shishir Jain (supra) by a Division Bench of this Court, which has been relied upon by the learned counsel for the petitioner. 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, the writ petition is disposed of with the direction to the respondent no. 2 - Executive Engineer, Purvanchal Electricity Distribution Nigam Limited, Electricity Distribution Unit 'First', District - Fatehpur to consider and decide the representation of the petitioner in accordance with law by means of a reasoned and speaking order regarding final assessment within a period of four weeks weeks from the date of receipt of a copy of this order, after affording opportunity of hearing to him.
For a period of six weeks or till any final decision is taken on the representation of the petitioner, whichever is earlier, no coercive action shall be taken against him pursuant to recovery citation notice dated 13.7.2020.
Order Date :- 19.1.2021
nd
