Disposed

Nabban v. State of U.P. and 2 Others

Allahabad HC3 Feb 2021WRIC/2156/2021

Case brief

AI extract

What is this about?

Writ petition against recovery certificate issued for electricity theft. Bench held that non-final assessment and lack of hearing violated natural justice. Quashed coercive action and directed reconsideration with hearing within four weeks.

What did the court decide?

Impugned Recovery Certificate set aside; no coercive action; directed to consider objection with hearing after two weeks.

Nabban Vs State of U.P. and 2 Others — Consumer Protection | Allahabad HC (2021)

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Court No. - 39

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Case :- WRIT - C No. - 2156 of 2021

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Petitioner :- Nabban Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shahnawaz Akhtar Counsel for Respondent :- C.S.C.,Mukesh Kumar Singh

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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, learned counsel appearing on behalf of respondent no.3-Corporation and learned Standing Counsel representing the respondent nos.1 & 2.

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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 impugned Recovery Certificate dated 11.9.2019 issued by respondent no.2/Tahsildar, Tahsil Sadar, District Budaun;

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II. Issue a writ, order or direction in the nature of mandamus directing the respondents to decide the Objection dated 4.12.2020 of the petitioner and reduce the fine to some reasonable extent which has been imposed without any basis."

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It is submitted by the learned counsel for the petitioner that without making any final assessment impugned Recovery Certificate dated 11.9.2019 of Rs.92852/- has been issued against the petitioner by respondent no.2 which was received on 12.11.2020. Thereafter the petitioner has filed an objection on 4.12.2020, which is still pending for consideration. It is further submitted that the petitioner cannot be compelled to pay the due amount without deciding his objection and in this regard no opportunity of hearing has been given as such the recovery proceedings is bad in the eyes of law.

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Learned counsel for the respondent no.3-Power Corporation submits that an inspection was made on the premises of the petitioner on 10.5.2018. A first information report was registered against the petitioner under Section 135 of Electricity Act as he was found committing theft of electricity using illegal means. Thereafter a provisional statement was made on 18.5.2018 which was sent to the petitioner through registered post. As no reply/objection was filed by the petitioner within stipulated period of 15 days, it was treated as final assessment pursuant to which recovery notice has been issued by the

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respondent no.3.

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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 the 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 respondents 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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In this view of the matter, we dispose of the writ petition with the direction to the petitioner to move a fresh representation before the respondent No.3 within two weeks from today, which shall be considered and decided by a reasoned and speaking order by respondent No.3 strictly in accordance with law within four weeks thereafter after affording due opportunity of hearing to the petitioner.

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In the meantime, no coercive action shall be taken against the petitioner pursuant to the impugned Recovery Certificate dated 11.9.2019 issued by respondent no.2.

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Order Date :- 3.2.2021 M. Tariq

Nabban v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Nabban v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

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