Allahabad High Court
Nizamuddin Khan vs State Of U.P. Thru. Prin. Secy. Energy ... on 22 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:38653
Court No. - 19
Case :- WRIT - C No. - 4535 of 2024
Petitioner :- Nizamuddin Khan
Respondent :- State Of U.P. Thru. Prin. Secy. Energy Deptt., Lucknow And Others
Counsel for Petitioner :- Anjani Kumar Srivastava
Counsel for Respondent :- C.S.C.,Aprajita Bansal
Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Anjani Kumar Srivastava, learned counsel for petitioner, learned State Counsel for opposite parties no.1 to 3 and Ms. Aprajital Bansal, learned counsel for opposite parties no.4 and 5.
2. Petition has been filed challenging order dated 11.03.2024 whereby petitioner's appeal No. 1497 of 2022 preferred under Section 127 of the Electricity Act 2003 has been rejected as not been maintainable.
3. It appears that earlier petitioner had filed Writ C No.3954 of 2022 against the provisional assessment order/demand notice dated 06.05.2022. The said petition was disposed of vide order dated 07.07.2022 directing the petitioner to file an appeal under Section 127 of Electricity Act, 2003. In pursuance of aforesaid directions, the aforesaid appeal registered as Case No.1497 of 2022 was filed and has been rejected by means of impugned order dated 11.03.2024.
4. Learned counsel for petitioner submits that as would be evident from a perusal of impugned order itself that appeal had been filed against order dated 27.05.2022 whereby assessment of Rs.3,70,220/- have been imposed upon petitioner but the appeal has been rejected placing reliance on judgment rendered by Hon'ble the Supreme Court in the case of West Bengal State Electricity Distribution Company Ltd. & Ors. versus Orion Metal Private Limited, (2020)18 SCC 588.
5. It is submitted that the appellate authority has misdirected itself by placing reliance on the aforesaid judgment, which even otherwise was inapplicable in the facts and circumstances of the case.
6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that appeal preferred by petitioner under Section 127 of Electricity Act, 2003 has been rejected placing reliance on judgment rendered in the case of Orion Metal Private Ltd. & another to hold that the proceedings were initiated against petitioner under Section 135 of the Act and therefore only the Special Court can taken cognizance of such matters and appeal under Section 127 of the Act would not be maintainable.
7. Upon perusal of aforesaid judgment rendered in the case of Orion Metal Private Ltd. (supra), it is evident that Hon'ble the Supreme Court has drawn a clear distinction between Sections 126 and 135 of the Act. It has been clearly indicated that proceedings Section 126 would arise in case of provisional or final assessment against a consumer in case of unauthorized use of Electricity whereas proceedings under Section 135 would require to be forwarded through in terms of Section 154 of the Act, which pertains to theft of electricity. The distinction clearly indicates that for proceedings to fall under Section 135 of the Act, it would become an offence of theft if the person is found to have indulged himself in the Acts mentioned in the clauses of Section 135 of the Act deliberately.
8. Although proceeding under Section 126 may incorporate aspects pertaining to Section 135 of the Act as well but since in the present case, appeal has been filed challenging only the assessment imposed upon petitioner, it is thus evident that such an appeal would therefore be maintainable.
9. In view of aforesaid, appeal preferred by petitioner under Section 127 of the Act was clearly maintainable and the appellate authority has misdirected itself in rejecting the same.
10. In view of aforesaid, impugned order dated 11.03.2024 is hereby quashed by issuance of a writ in the nature of Certiorari directing the appellate authority to decide petitioner's appeal registered as Case No.1497 of 2022 in terms of directions issued by this Court earlier dated 07.07.2022 passed in Writ C No.3954 of 2022.
11. Consequently, the petition succeeds and is allowed. Parties to bear their own costs.
Order Date :- 22.5.2024
Renu/-
