Allahabad High Court
Radhey Shyam vs State Of U.P. And 2 Others on 21 January, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 27690 of 2020
Petitioner :- Radhey Shyam
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Bhola Nath Yadav
Counsel for Respondent :- C.S.C.,Rajesh Yadav
Hon'ble Naheed Ara Moonis,J.
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner, learned Standing Counsel for the respondent nos.1 & 3 and Sri Rajesh Yadav, learned counsel representing the respondent no.2.
Instant writ petition has been filed seeking following relief:
"a) Issue a writ, order or direction in the nature of certiorari quashing the impugned recovery proceeding initiated against the petitioner pursuant to notice dated 18.8.2020 sent by respondent no.2 to District Magistrate for realization of Rs.179243/- plus recovery charge from the petitioner as dues of electricity;
b) Issue a writ, order or direction in the nature of Mandamus directing the respondents not to realize amount mentioned in the impugned notice dated 18.8.2020 and not to adopt any coercive means against the the petitioner in pursuance to the impugned notice dated 18.8.2020 issued by respondent no.2."
The submission of the learned counsel for the petitioner is that an FIR under Section 135 of the Electricity Act was registered against the petitioner on 18.11.2019 on the basis of checking report dated 9.10.2019. Thereafter the petitioner had filed an objection on 15.10.2019 but the same was not considered. Later on a recovery notice dated 18.8.2020 has been issued by respondent no.2 to District Magistrate for realization of Rs.179243/- plus recovery charge from the petitioner as dues of electricity. The petitioner cannot be compelled to deposit the aforesaid amount without considering the objection dated 15.10.2019. However, the learned counsel appearing on behalf of the Power Corporation fairly submits that if the petitioner moves a fresh representation before the respondent no.2 the same shall be considered within the time as may be granted by this court.
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 the Court that in case 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 petitioner to move a fresh representation before respondent no.2 within two weeks from today ventilating all his grievances and in case, such representation is moved, the same shall be considered and decided by respondent no.2 who shall 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 recovery proceeding initiated against the petitioner shall be kept in abeyance.
In case the petitioner fails to move a fresh representation within stipulated period, the respondent no.2 shall be at liberty to proceed against the petitioner in accordance with law.
Order Date :- 21.1.2021
M. Tariq
