Allahabad High Court
Shyami vs State Of U.P. And 3 Others on 27 January, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 26024 of 2020
Petitioner :- Shyami
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Awadh Sharma
Counsel for Respondent :- C.S.C.
Hon'ble Naheed Ara Moonis,J.
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner, Shri Krishna Agarwal, learned counsel appearing on behalf of respondent-Corporation and learned Standing Counsel representing the State.
Instant writ petition has been filed seeking following relief:
"(i) Issue a writ, order or direction in the nature of certiorari quashing the recovery notice/certificate dated 28.9.2020 issued by respondents against the petitioner for recovery of Rs. 2,36,602 including recovery charge.
(2) Issue a writ, order or direction in the nature of mandamus directing the respondents not to recovery the amount of Rs. 2,36,602/-.
It is submitted by the learned counsel for the petitioner that on the basis of checking on the premises of the petitioner, a provisional assessment was made on 01.2.2020, but as copy of the provisional assessment has not been given to the petitioner, he could not file objection, the same was treated as final assessment and thereafter recovery proceeding has been initiated by respondent No. 5. 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, he 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 vs. Paschimanchal Vidyut Vitran Nigam Ltd. and another, 2017 (3) AWC 3084 by a Division Bench of this Court. 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 the 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.
In this view of the matter, we dispose of the writ petition with the directions to the petitioner to move a representation before respondent No. 2 within two weeks from today, which shall be considered and decided by a reasoned and speaking order by respondent No. 2 strictly in accordance with law within four weeks thereafter after affording due opportunity of hearing to the petitioner.
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 28.09.2020.
Order Date :- 27.1.2021
Ishrat
