Allahabad High Court
Suman vs State Of U P And Another on 25 January, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 1733 of 2021
Petitioner :- Suman
Respondent :- State Of U P And Another
Counsel for Petitioner :- Shashi Kumar Mishra
Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi
Hon'ble Naheed Ara Moonis,J.
Hon'ble Dinesh Pathak,J.
Heard the learned counsel for the petitioner, Sri Baleshwar Chaturvedi, learned counsel appearing on behalf of the respondent no. 2 and Sri B.P. Singh Kachhawah, learned Standing counsel appearing on behalf of the respondent no. 1.
The instant writ petition has been filed with the following relief'
"(i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 8.3.2020 as well as impugned demand notice dated 12.4.2020 issued by the respondent no. 2 against the petitioner (Annexure Nos. 2 and 3).
(ii) to issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 not to discontinue the electricity supply to the petitioner vide electricity connection no. 85892.
(iii) to issue a writ, order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case."
The learned counsel for the petitioner submits that the first information report was registered against the petitioner with the vague allegations that the petitioner was found using electricity by illegal means. The demand notice pursuant to which has been issued without serving the provisional assessment and the same was treated as final assessment by order dated 8.3.2020 and has proceeded to recover the amount of Rs. 1,74,996/- within a period of 30 days from the date of the said notice.
The learned counsel appearing for the power corporation submits that the premises of the petitioner was inspected on 10.12.2019 at about 5.37 O'clock and at the time of checking the petitioner was found using electricity unauthorizedly and thereafter the provisional assessment was sent to the petitioner on 21.12.2019, when no reply was submitted the same was treated as final assessment.
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.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 of the Code 2005. The Clause 8 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 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 representation within time, the respondents shall be at liberty to proceed against the petitioner in accordance with law.
Order Date :- 25.1.2021
Shahnawaz
