Allowed

Veerendra Singh and 2 Others v. State of U.P. and 3 Others

Allahabad HC25 Oct 2018WRIC/33147/2018

Case brief

AI extract

What is this about?

The High Court quashed recovery certificates issued based on a provisional assessment treated as final under the Electricity Act, holding that a separate final order recording satisfaction is mandatory regardless of objections.

What did the court decide?

The recovery certificate dated 21.07.2018 was set aside and the matter remanded to respond to file objections before the Executive Engineer.

Veerendra Singh and 2 Others Vs State of U.P. and 3… — Service and Employment | Allahabad HC (2018)

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Court No. - 39

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Case :- WRIT - C No. - 33147 of 2018

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Petitioner :- Veerendra Singh And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anil Kumar Dubey Counsel for Respondent :- C.S.C.,Krishna Agarawal

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Hon'ble B. Amit Sthalekar,J. Hon'ble Surya Prakash Kesarwani,J.

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A counter affidavit has filed today by the respondents. The same is taken on record.

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Heard Sri Anil Kumar Dubey, learned counsel for the petitioners, Sri Krishna Agarwal, learned counsel for the respondents no.2 & 3 and the learned Standing Counsel for the respondents no.1 & 4.

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The petitioners in the writ petition are seeking quashing of the recovery certificate dated 21.07.2018 showing recovery of Rs.49,647/- against the petitioner no.1, Rs.55,253/- against the petitioner no.2 and Rs.38,434/- against the petitioner no.3.

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The undisputed facts of the case are that the provisional assessment demand notice was issued to the petitioners for recovery of these amounts and when the petitioners did not clear their electricity dues a recovery certificate was issued for like amount.

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A counter affidavit was called for from the respondents enquiring whether any final assessment order has been passed or not. It is not disputed by the respondents even in the counter affidavit that since the petitioners had not filed any objections to the provisional assessment order the provisional assessment order was itself treated as the final assessment order.

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In our opinion, this is not the correct approach and does not fulfil the requirement of Section 126 (2) and Section 126 (3) of the Electricity Act, 2003.

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Section 126 (2) and (3) read as under:

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" 126: (Assessment):

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(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

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(3) The person, on whom an order has been served under subsection (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person."

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Sub-Section 2 of Section 126 clearly provides that the order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner, as may be prescribed.

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Sub-Section 3 of Section 126 grants liberty to the person on whom such notice has been served to file his objections, if any, against the provisional assessment before the assessing officer. The words 'who shall after' denotes that the assessing officer shall also give an opportunity of hearing to the person on whom the notice has been served and only thereafter he shall pass a final assessment order within thirty days from the date of service of the order of provisional assessment.

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In the present case what we notice is that the petitioners have not filed any objections against the provisional assessment order and the Department has thereupon treated the provisional assessment order to be the final assessment order. This is not permissible in law considering the strict language of sub-section 2 & sub-section 3 of Section 126 of the Electricity Act, 2003.

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It is the requirement of the statute that the assessing officer must have passed the final assessment order whether the person on whom this order has been served, files his objections or not. It goes without saying that the order of final assessment must state reasons why the final assessment order is being passed. If the objections have been filed the assessing officer shall consider the objections. If the person on whom the provisional assessment order has been served does not file his objections the assessing officer will still be required to record these facts, and his satisfaction showing the necessity for passing the final order of assessment.

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In the present case the provisional assessment order itself has been treated to be the final assessment order. We therefore set aside the demand notice dated 21.07.2018 and remit the matter to the respondent no.3, Executive Engineer, Dakshinanchal Vidyut Vitran Nigam Ltd., District Hamirpur. The petitioners will be at liberty to file their objections, if any, by 2nd November, 2018 before the respondent no.3. The respondent no.3 shall consider the same and also offer opportunity of

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hearing to the petitioners and thereafter proceed to pass the final order of assessment as per the requirement of sub-sections 2 & 3 of Section 126 of the Electricity Act.

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With the aforesaid observation/direction the writ petition stands disposed of.

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Order Date :- 25.10.2018 N Tiwari

Veerendra Singh and 2 Others v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Veerendra Singh and 2 Others v. State of U.P. and 3 Others

Case brief

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