Disposed

Imamuddin v. State of U.P. and 3 Others

Allahabad HC20 Jan 2021WRIC/1124/2021

Case brief

AI extract

What is this about?

High Court stayed recovery proceedings against petitioner for alleged electricity theft. Court directed petitioner to file a representation for a final assessment with a hearing within ten days, quoting principle that provisional assessment cannot become final without natural justice.

What did the court decide?

Recovery proceedings kept in abeyance and petitioner directed to file representation for final assessment within ten days.

Imamuddin Vs State of U.P. and 3 Others — Service and Employment | Allahabad HC (2021)

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Court No. - 39

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Case :- WRIT - C No. - 1124 of 2021

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Petitioner :- Imamuddin Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kamlesh Kumar Dwivedi Counsel for Respondent :- C.S.C.,Narendra Kumar Tiwari

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Hon'ble Naheed Ara Moonis,J. Hon'ble Dinesh Pathak,J.

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Heard learned counsel for the petitioner, Sri Narendra Kumar Tiwari, learned counsel for the respondent no.4 and Sri B.P. Singh Kachhawah, learned Standing counsel for the respondent nos. 1,2 and 3.

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The instant writ petition has been filed seeking following relief:

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"(i) Issue a writ order or direction in the nature of certiorari quashing the recovery certificate dated 29.12.2020 (Annexure No. 5 to the writ petition) issued by the respondent no.3 against the petitioner for recovery of amount of a sum of Rs. 7,91,124/-.

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(ii) to issue a writ, order or direction in the nature of mandamus commanding and directing the respondent nos. 3 and 4 not to recover the alleged amount of Rs. 7,91,124/- from the petitioner as arrears of land revenue by coercive measure, otherwise the petitioner shall suffer irreparable loss and injury.

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(iv) to issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case; and.

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(iv) to award the cost of writ petition to the petitioner."

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The submission of the learned counsel for the petitioner is that the petitioner had taken the electricity connection for agriculture purpose, which was sanctioned in the name of his father. However, his father expired in the year 2009, thereafter the electricity is being used amongst his five brothers and the electricity bills were regularly being paid. On 8.1.2019 on the basis of an inspection a first information report was registered under Section 135 of Electricity Act. Thereafter the petitioner filed an objection on 18.2.2020 but the same was not considered. Later on a recovery notice was issued on 17.8.2020 for a sum of Rs. 7,91,124/-.

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It is further submitted that that the provision of Section 126 of the Electricity Act and Clause 8 (1) of the Electricity Code 2005 has not been complied with and as such the petitioner is not aware about the final assessment. The petitioner cannot be compelled to deposit the aforesaid amount without considering the representation/objection dated 18.2.2020. However, the learned counsel appearing on behalf of the Power Corporation fairly submits that if the petitioner moves a fresh representation before the respondent no.4 the same shall be considered within the time as may be granted by this court.

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At this stage, we deem it proper to reproduce paragraph 16 of the judgment passed in the case of Shishir Jain vs. Paschimanchal Vidyut

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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. The relevant paragraph 16 of aforesaid judgment reads as under:

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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.

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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 affording any opportunity of hearing, the same is in violation of principles of natural justice.

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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 representation before respondent no.4 within ten days from today ventilating all his grievances and in case, such representation is moved, the same shall be considered and decided by respondent no.4 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.

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In the meantime, the recovery proceeding initiated against the petitioner shall be kept in abeyance.

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In case the petitioner fails to move a representation within time, the respondents shall be at liberty to proceed against the petitioner in accordance with law.

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Order Date :- 20.1.2021

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Shahnawaz

Imamuddin v. State of U.P. and 3 Others

Case brief

What is this about?

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Imamuddin v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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