Allahabad High Court
Musharraf vs State Of U.P. And 2 Others on 18 January, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 27193 of 2020
Petitioner :- Musharraf
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Birendra Pratap Yadav,Krishna Kant Yadav
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 Pawan Kumar Misra, Advocate holding brief of Sri Pranjal Mehrotra, learned counsel for respondent nos.2 and 3 and Sri B. P. Singh Kachhawah, learned Standing Counsel appearing for the State-respondent no.1.
Instant writ petition has been filed seeking following relief :
?(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned demand notice dated 25.02.2020 issued by the respondent no.3 and also recovery proceeding initiated against the petitioner.?
It is submitted by learned counsel for the petitioner that petitioner has a valid electricity connection and he is regularly depositing the electricity bills. However, on 04.09.2019, Checking Squad had inspected the premises of the petitioner and had made report that petitioner was found using electricity for commercial use, pursuant to which an FIR was lodged against him on the same day i.e. 04.09.2012 under Section 135 of the Electricity Act, 2003 (in short 'Act, 2003'). Thereafter, a Provisional Assessment Notice dated 31.10.2019 under Section 126 of Act, 2003 proposing an assessment of Rs.75,884/- was sent to the petitioner by registered post. Petitioner was required to file objection to the said notice, which was filed by him on 05.12.2019. Thereafter, neither the objection filed by him was considered nor any final assessment notice was served upon him, yet the recovery citation has been issued by the respondent no.3 for payment of Rs.77,906.00.
Submission of learned counsel for the petitioner is that prior to passing final assessment, petitioner has not been given any opportunity of hearing and as such, the recovery proceedings pursuant to the final assessment, which has never been served upon him, is bad in the eyes of law. 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 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. In support of his contention learned counsel for the petitioner has relied upon the judgment passed by a Division Bench of this Court in 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.
Learned counsel appearing on behalf of respondent nos.2 and 3 i.e. Power Corporation, has not been able to show that the same provisional assessment shall be treated as final assessment. We are not at all convinced that despite the objection made to the provisional assessment it shall be treated as final assessment without considering or giving any opportunity of hearing.
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 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 considering the objection or 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.3 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.3 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.
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 25.02.2020.
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 :- 18.1.2021
Manish Himwan
