Allahabad High Court
Raisa Begum vs Purvanchal Vidyut Vitran Nigam ... on 20 January, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 1088 of 2021
Petitioner :- Raisa Begum
Respondent :- Purvanchal Vidyut Vitran Nigam Ltd. And 2 Others
Counsel for Petitioner :- Mohd Irteqa
Counsel for Respondent :- Narendra Kumar Tiwari
Hon'ble Naheed Ara Moonis,J.
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner and Sri N.K. Tiwari, learned counsel appearing for the respondents.
Instant writ petition has been filed seeking following relief:
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned demand notice dated 28.11.2020 issued by the respondent no. 2received to the petitioner on 28.12.2020 [Annexure No. 4 to the writ petition].
(ii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondents to decide the matter afresh considering the objection of the petitioner dated 23.11.2020.
(iii) Issue any other suitable writ order or direction in the nature as this Hon'ble Court may deem fit and proper in the circumstances of the case.
(iv) Award the cost of petition to the petitioner."
It is submitted by learned counsel for the petitioner that petitioner has a valid electricity connection for domestic use and she is regularly depositing the electricity bills. On 2.11.2020 the respondent no. 2 issued a provisional notice, which was received by the petitioner on the same day indicating that the Checking Authority had inspected the premises of the petitioner and had made report that petitioner was indulged into theft of electricity, pursuant to which a provisional assessment was made for Rs. 35,904/- and directing the petitioner to submit objection within 15 days. The petitioner had submitted a detailed objection/representation on 23.11.2020 within 15 days from the date of receipt of the notice. In spite of the objection filed within time but without considering the same final demand notice dated 28.11.2020 was delivered through registered post and the same was received by the petitioner on 28.12.2020.
Submission of learned counsel for the petitioner is that the petitioner cannot be compelled to pay the due amount without deciding his objection and in this regard no opportunity of hearing has been given as such the recovery proceedings pursuant to the demand notice is bad in the eyes of law. It is further contended that respondents have 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 respondents Power Corporation, 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 the absence of any objection to the provisional assessment it shall be treated as final assessment.
The learned counsel for the Power Corporation has supplied the relevant documents to the learned counsel for the petitioner today in Court.
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, 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 respondents 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. 2 to consider and representation of the petitioner in accordance with law and pass an appropriate, reasoned and speaking order regarding final assessment after giving an 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.
In the meantime the consequential demand notice shall be kept in abeyance and no coercive action shall be taken against the petitioner pursuant to impugned demand notice dated 28.11.2020.
Order Date :- 20.1.2021
Shahnawaz
