Allahabad High Court
Sajid Ali 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. - 26846 of 2020
Petitioner :- Sajid Ali
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Santosh Kumar Yadav
Counsel for Respondent :- C.S.C., Narendra Kumar Tiwari
Hon'ble Naheed Ara Moonis,J.
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner, Sri N. K. Tiwari, 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 reliefs :
?(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned demand notice dated 17.11.2020 amounting Rs.1,70,125/= (Annexure no.7) issued by respondent no.2 and its all consequential proceedings.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to inspect the electricity meter/premises of the petitioner for connecting/starting the meter with electricity supply forthwith.?
It is submitted by learned counsel for the petitioner that petitioner is using electricity connection for domestic use and depositing the electricity bills regularly. It is further submitted that officials of respondents hanged an electricity meter on 29.11.2018 but did not connect the same with electricity supply. Petitioner had moved several representations requesting respondent no.3 that his electricity meter may be connected with main electricity supply. Those representations have been annexed as Annexure 2 to this writ petition. On 27.10.2020, the Enforcement Squad inspected the premises of the petitioner and submitted a checking report that meter has not been connected with the main board and thereafter respondent no.2 has submitted provisional assessment dated 28.10.2020 through registered post upon the petitioner. Petitioner has submitted his objection on 11.11.2020 vide Annexure No.6 to the writ petition, but without considering the same, respondent no.3 has issued demand notice dated 17.11.2020 demanding payment of Rs.1,70,125/-.
Contention of learned counsel for the petitioner is that without considering the objection which was filed within time against the provisional/final assessment dated 28.10.2020, and consequential proceedings of recovery is bad in the eyes of law and is liable to be quashed.
Learned counsel appearing on behalf of respondent nos.2 and 3 i.e. Power Corporation, has submitted that there is no illegality or perversity in the proceedings initiated against the petitioner for recovery of Rs.1,70,125/- by issuing demand notice.
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, 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.?
Considering the submissions of learned counsel for the parties, we are of the considered view that there is nothing on record to show that any opportunity of hearing was given to the petitioner and respondents' counsel has utterly failed to show that his representation was considered. As such, petitioner could not be compelled to deposit any amount on the basis of provisional assessment without affording any opportunity of hearing to him and without passing any order with regard to final assessment. 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 or any irregularity in using of electricity. Amount which is mentioned in the provisional assessment has been treated as final assessment without affording any opportunity of hearing and without deciding the objection, hence, 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 respondent no.2 to consider the representation of the petitioner and decide the same by passing an appropriate, reasoned and speaking order 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 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 demand notice dated 17.11.2020.
It is made clear that if the petitioner fails to appear before the respondent no.2 as indicated above, he shall not be entitled to get the benefit of this order.
Order Date :- 18.1.2021
Manish Himwan
