Disposed

Raja Ram Kushwaha v. State of U.P. and 3 Others

Allahabad HC28 Jan 2021WRIC/1433/2021

Case brief

AI extract

What is this about?

The Court quashed coercive action against the petitioner for electricity dues recovered via a recovery certificate. It held that treating a provisional assessment as final without a hearing violates natural justice and statutory provisions. The writ is disposed of directing the petitioner to file a representation, with a stay on coercive measures pending the decision.

What did the court decide?

Direction to respondent to decide petitioner's representation on final assessment after hearing, with a stay on coercive action for six weeks or until decision.

Raja Ram Kushwaha Vs State of U.P. and 3… — Contract and Commercial Disputes | Allahabad HC (2021)

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Court No. - 39

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Case :- WRIT - C No. - 1433 of 2021

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Petitioner :- Raja Ram Kushwaha Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shiv Shanker Pal Counsel for Respondent :- C.S.C., Baleshwar Chaturvedi

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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 Baleshwar Chaturvedi, learned counsel for respondent no.4 and learned Standing Counsel for the Staterespondent nos.1, 2 and 3.

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Instant writ petition has been filed seeking following reliefs :

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“(i) Issue a writ, order or direction in the nature of certiorari quashing the recovery certificate dated 01.01.2020 issued by the Tensildar Tahrauli, Jhansi (Annexure no.2 to the writ petition).

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(ii) Issue a writ, order or direction in the nature of mandamus restraining the respondents from taking any coercive action in pursuance to the Recovery Certificate dated 01.01.2020 issued by the Tehsildar Tahrauli, Jhansi (Annexure no.2 to the writ petition)”

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Submission of learned counsel for the petitioner is that the electricity connection is in the name of his father while recovery citation has been issued against him in an illegal and arbitrary manner. It is further contended that respondent no.4 has not proceeded in accordance with the provisions contained in Section 126 (3) of the Electricity Act, 2003 (in short 'Act, 2003') and Clause 6.8/8.1 of the Electricity Supply Code, 2005 (in short ' Code, 2005') while making final assessment, as no opportunity of hearing has been afforded to the petitioner.

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However, learned counsel appearing on behalf of respondent no.4 i.e. Power Corporation submits that inspection was made in the premises of the petitioner on 11.06.2019 and on the basis whereof, provisional assessment was made on 10.07.2019 and as the petitioner failed to file objection to the said notice, same was treated as final assessment.

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We are not at all convinced with the aforesaid submission that if any person fails to file any objection to the provisional assessment, it shall be treated as final assessment without considering or giving any opportunity of hearing.

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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 Vitran Nigam Ltd. and another, 2017 (3) AWC 3084 by a Division Bench of this Court. The relevant paragraph 16 of aforesaid judgment reads as under :

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“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.”

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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, while making final assessment. The entire procedure adopted by respondent-Power Corporation dehors the statutory provisions of Section 126 of the Act, 2003 and Clause 8.1 of the Code, 2005. The Clause 6.8/8.1 of the Code, 2005 provides the procedure to be adopted by the licensee for inspection, provisional assessment, hearing and final assessment in the case of unauthorized use of electricity or theft of electricity as the case may be. In the present case, amount which is mentioned in the provisional assessment has been treated as final assessment without affording any opportunity of hearing, hence, 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, the writ petition is disposed of directing the petitioner to move a representation before respondent no.4 within two weeks from today and in case such representation is moved by the petitioner, the same shall be considered by respondent no.4 who shall decide the same by passing an appropriate, reasoned and speaking order regarding final assessment after giving

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an opportunity of hearing to the petitioner, as expeditiously as possible, preferably within a period of four weeks month from the date of receipt of a copy of this order.

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For a period of six weeks or till any final decision on the representation of the petitioner, whichever is earlier, no coercive action shall be taken against the petitioner pursuant to recovery certificate dated 01.01.2020.

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It is made clear that if the petitioner fails to file the representation as indicated above, he shall not be entitled to get the benefit of this order.

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Order Date :- 28.1.2021 Manish Himwan

Raja Ram Kushwaha v. State of U.P. and 3 Others

Case brief

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Raja Ram Kushwaha v. State of U.P. and 3 Others

Case brief

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