Allahabad High Court
Nijamuddin vs State Of U P And 3 Others on 25 January, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 1930 of 2021
Petitioner :- Nijamuddin
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- R.P.S. Chauhan
Counsel for Respondent :- C.S.C.,Pranjal Mehrotra
Hon'ble Naheed Ara Moonis,J.
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner, Sri Shrawan Kumar Tripathi, Advocate holding brief of Sri Pranjal Mehrota, learned counsel for respondent nos.2 and 3 and learned Standing Counsel for the State-respondent nos.1 and 4.
Instant writ petition has been filed seeking following reliefs :
?(i) Issue a writ, order or direction in the nature of certiorari to quash the provisional assessment notice no.4322/E.D.D.III.Mbd. dated 18.12.2018 issued by the respondent no.3 against the petitioner (Annexure no.1 to this writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.3 to consider and decide the statutory objection of the petitioner dated 28.02.2019 under the provisions of Clause 8.1 (b)(iii) of U.P. Electricity Supply Code, 2005 by passing speaking order after affording opportunity of personal hearing to the petitioner, provided under the provisions of 8.1 (b) (iv) of the U.P. Electricity Supply Code, 2005 expeditiously within some stipulated period (Annexure no.2 to this writ petition).?
It is submitted by learned counsel for the petitioner that no final assessment has been made by respondent no.2 and respondent-Power Corporation has proceeded to issue demand notice for recovery of Rs.3,50,527/- which was issued pursuant to provisional assessment notice dated 18.12.2018. It is further contended that respondent nos.2 and 3 have not proceeded in accordance with the provisions contained in Section 126 (3) of the Electricity Act, 2003 (in short '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.
Learned counsel appearing on behalf of respondent nos.2 and 3 i.e. Power Corporation, has submitted that no reply was sent by petitioner in pursuance of provisional assessment and same was treated as final assessment, hence, there is no illegality or perversity in the demand notice.
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 deposity any amount on the basis of provisional assessment without affording any opportunity of hearing, while making final assessment. The entire procedure adopted by respondent-Power Corporation 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 the licensee for inspection, provisional assessment, hearing and final assessment in the case of theft of electricity. In the present case, amount which is mentioned in the provisional assessment has been treated as final assessment without affording any opportunity of hearing, hence, the same in 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.3 within two weeks from today ventilating his grievance and in case, such representation is moved, the same shall be considered and decided by respondent no.3 by passing 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 thereafter.
For a period of four 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 18.12.2018.
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 :- 25.1.2021
Manish Himwan
