Jammu & Kashmir High Court - Srinagar Bench
Noor Ud Din Makaya vs Kashmir Power Development ... on 21 October, 2023
Serial No. 51
Supplementary 1 Causelist
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 2752/2023
CM(6554/2023)
Noor ud Din Makaya.
..... Petitioner(s)
Through: Mr. Arif Sikander Mir, Advocate.
V/s
Kashmir Power Development Corporation Limited & Ors.
.....Respondent(s)
Through:
CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
ORDER
21.10.2023
1. The case which has been advanced by the learned counsel for the
petitioner in the instant petition is that as per Section 126 of the Electricity
Act, 2003, an order of assessment has to be made by the Assessing Officer
and the final assessment order has also to be made by the Assessing Officer.
In the instant case, the order of provisional assessment has been passed by
Executive Engineer, Electric Division-2nd, Rajbagh, Srinagar, who has
admitted that he is not an assessing officer. The learned counsel further
submits that the final assessment order has not been passed by the Assessing
Officer, who has been designated by virtue of Government Order No. 38-
PDD of 2020 dated 10th February 2020, as Assessing Officer, with respect to
loads in various categories. He further submits that on the date of issuance of
the provisional assessment order as per load, the said order ought to have
been issued by the Assessing Officer appointed by the Government under
Section 126 (6) (a) of Electricity Act, 2003. He further submits that since the
Government of Jammu and Kashmir vide order mentioned supra, has
designated the Assistant Executive Engineers (E) of different Sub Divisions
of Power Distribution Corporation as Assessing Officer in their respective
jurisdiction for all types of LT Loads upto and including 100KW in all
categories and also for HT Loads above 100KW in all categories.
2. The further case of the learned counsel appearing on behalf of the
petitioner is that as per the order issued by the Government, Executive
Engineer is the Assessing Officer in conformity with the Electricity Act as
the sanctioned load in favour of the petitioner is 106 KW and thus, his case
falls in Category II of the aforementioned Government Order. The further
case of the petitioner is that the concerned Executive Engineer has informed
the petitioner that the inspection squad of Chief Engineers (Distribution)
office during its inspection on 13th June 2023 has reported meter tampering
and has worked out provisional assessment to the tune of Rs. 1,41,36,158
(Rupees Once Crore, Forty-One Lac, Thirty-Six Thousand, One Hundred
and Fifty-Eight Only) for unauthorized use of electricity under section 126
of Electricity Act, 2003 and pursuant thereto, the petitioner has been directed
to file objections, if any. The further case of the petitioner is that the
petitioner filed objections on 2nd July, 2023, before the Executive Engineer,
being the Assessing Officer, however, the concerned Executive Engineer,
directed the petitioner to file the objections against the provisional
assessment order before the Assessing Officer (Head of Inspection Squad-
Distribution Office) for further course of action in the case. Feeling
aggrieved of the same, the petitioner filed a writ petition before this Court
being WP(C) No. 1920/2023 and the said writ petition was disposed of with
direction to the designated Assessing Officer to consider the objections of
the petitioner and was granted liberty to pass appropriate orders in
accordance with the law and till such time, the final orders are passed by the
Assessing Officer, no recovery shall be affected from the petitioner.
The learned counsel further submits that the direction passed by
this Court was not complied with by the respondents and instead of passing
the final assessment order, a communication dated 29th August 2023, came
to be issued by the Assistant Executive Engineer, who is not the Assessing
Officer, whereby the objections filed by the petitioner were replied. The
learned counsel further submits that instead of passing the final assessment
order as directed by this Court and as per the scheme laid down in the
Electricity Act and the rules framed thereunder, the petitioner has been
advised to file an appeal under Section 127 of the Electricity Act, when
admittedly, according to the learned counsel for the petitioner, no final
assessment order, has yet been passed. It is the specific case of the petitioner
that the respondents instead of complying with the direction passed by this
Court, have referred to an order passed by the subordinate court i.e. learned
Sub Judge (CJM), Srinagar, on the basis of which, the respondents have
directed the petitioner to deposit the penalty amount of Rs.1,41,36,158/-
(Rupees One Crore, Forty-One Lakh, Thirty-Six thousand, One Hundred and
Fifty-Eight Only), within a period of seven days from the date of issuance of
the aforesaid said, failing which, it was made clear that the office of
Executive Engineer Electric Division-II Rajbagh, Srinagar, shall be
constrained to disconnect the power supply the installation of the petitioner
(bearing Consumer ID No: 0202010007171).
The learned counsel appearing on behalf of the petitioner submits
that once there was a specific direction issued by a High Court, whereby
the respondents were directed to pass final assessment order, then the
respondents by no stretch of imagination could have referred to an order
passed by subordinate court issuing a direction to deposit the penalty, which
was prior to the passing of the said order. The learned counsel submits that
the issue which was pending before the learned CJM, Srinagar, pertains to
different subject matter. The issuance of the aforesaid communication dated
2nd August 2023, by the concerned Executive Engineer, is without
application of mind and in derogation to the mandate and spirit of the
directions passed by this Court in WP(C) No. 1920/2023.
The learned counsel appearing for the petitioner while advancing
the arguments, placed reliance on an identical order passed by this Court in
writ petition being WP(C) 1956/2023; CM 4583/2023, wherein the
provisional order under challenge has been stayed. The learned counsel has
also placed reliance on a judgment passed by the Hon'ble Supreme Court in
case titled Executive Engineer Southern Electricity Supply Company of
Orissa Limited (Southco) & Anr vs Sre Seetaram Rice Mill reported in
(2012) 2 SCC 108.
Heard the learned counsel for the petitioner at length and perused
the record.
Prima facie case for indulgence is made out.
Issue notice in the main petition as well as in connected CM,
returnable within a period of four weeks.
List on 18th December 2023.
In the meantime, subject to objections from the other side and till
next date of hearing before the Bench, the impugned communication dated
2nd August 2023 issued by the Executive Engineer to the petitioner as also
the communication dated 29th August 2023 issued by the Assistant
Executive Engineer to the petitioner, directing the petitioner to file appeal
before the Appellate Authority, in absence of final assessment order, shall
remain stayed.
Modification/Vacation/Alteration motion.
(Wasim Sadiq Nargal)
Judge
SRINAGAR:
21.10.2023
"Hamid"
