Allahabad High Court
Harendra Kumar Sharma vs State Of U.P. And 3 Others on 22 January, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 749 of 2021
Petitioner :- Harendra Kumar Sharma
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Rewti Raman Patel
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 for respondents no.1, 3 & 4 and Shri Rajesh Yadav, learned counsel appearing on behalf of respondent no. 2.
The instant petition has been filed seeking following reliefs :
"(i) to issue a writ, order or direction in the nature of certiorari quashing the recovery notice dated 30.11.2019 issued by Tehsildar Tehsil Siana Bulandshahar (Annexure no. ) to the writ petition'
(ii) to issue a writ, order or direction in the nature of mandamus directing the respondents not to recover the amount sought to be recovered pursuant to recovery certificate dated 30.11.2019 issued by Tehsildar Siana Bulandshahar by adopting any coercive measure from the petitioner in any manner what so ever."
Submission of learned counsel for the petitioner is that the petitioner had a valid electricity connection and he was regularly paying the electricity bills. The premises of the petitioner was allegedly inspected on 15.07.2018 and a report was submitted that the petitioner is using electricity by illegal means pursuant to which a first information report is said to have been lodged on the same day. The petitioner had brought this to the notice of the respondent no. 3. 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 dated 30.11.2019 for Rs.5,07,316/-. Learned counsel for the petitioner further 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 cannot be compelled to deposit the amount of provisional assessment.
Learned counsel for the respondent no.2 submits that the petitioner was using electricity by illegal means and the provisional assessment was made on 15.07.2018 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. 2. 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 the judgment passed by a Division Bench of this Court in the case of Shishir Jain vs. Paschimanchal Vidyut Vitran Nigam Ltd. and Another, 2017 (3) AWC 3084. 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.2 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 representation before respondent no.2 within three weeks from today ventilating 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 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.
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 30.11.2019.
It is made clear that if the petitioner fails to file the representation as indicated above, he shall not be entitled to get the benefit of this order.
Order Date :- 22.1.2021
VR/
