Partly allowed

Chaman Prakash v. State of U.P. and 3 Others

Allahabad HC29 Jan 2021WRIC/2551/2021

Case brief

AI extract

What is this about?

The court held that a petitioner cannot be compelled to deposit provisional assessment amount without hearing. The recovery notice was kept in abeyance, directing the respondent to decide the petitioner's representation with an opportunity of hearing within four weeks.

What did the court decide?

Recovery notice dated 16.10.2020 kept in abeyance; respondent directed to decide petitioner's representation with opportunity of hearing within four weeks.

Chaman Prakash Vs State of U.P. and 3 Others — Consumer Protection | Allahabad HC (2021)

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Court No. - 39

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Case :- WRIT - C No. - 2551 of 2021

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Petitioner :- Chaman Prakash Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ajendra Kumar Counsel for Respondent :- C.S.C.,Rajesh Yadav

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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 Rajesh Yadav, learned counsel for respondent nos.3 and 4 and learned Standing Counsel for the State-respondent nos.1 and 2.

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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 proceedings in pursuance of impugned recovery notice dated 16.10.2020 and assessment notice dated 14.09.2020 issued by respondents.

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(ii) Issue a writ, order or direction in the nature of mandamus directing respondents to decide and consider the objection of petitioner against demand notice dated 14.09.2020.”

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Submission of learned counsel for the petitioner is that the recovery notice was served to the petitioner on 16.10.2020 for a sum of Rs.1,26,457/- but petitioner was never informed about the provisional assessment dated 14.09.2020 which was made in pursuance of an FIR registered under Section 135 of Electricity Act, 2003 (in short, 'Act, 2003') with an allegation that petitioner was found using electricity by illegal means. Neither any checking report nor the provisional assessment was served to the petitioner, hence, the consequential proceeding of demand notice is absolutely arbitrary and illegal. It is contended that after demand notice, petitioner came to know about the recovery proceedings, then he has moved representation dated 05.01.2021, which is appended as Annexure-5 to the writ petition. It is further contended that respondent-Power Corporation has not proceeded in accordance with the provisions contained in Section 126 (3) of the Act, 2003 and Clause 6.8/8.1 of

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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-Power Corporation had not disputed the fact that final assessment has been made without giving any opportunity of hearing to the petitioner. We are not at all convinced that the provisional assessment shall be treated as final assessment without 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 6.8/8.1 of the Code, 2005.The Clause 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 theft of electricity. 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 respondent

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no.3 to consider the representation dated 05.01.2021 (Annexure-5 to the writ petition) moved by the petitioner and decide the same by passing an appropriate, reasoned and speaking order after giving due 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 four weeks from today or till final decision on petitioner's representation, whichever is earlier, the recovery notice dated 16.10.2020 shall be kept in abeyance.

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Order Date :- 29.1.2021 Manish Himwan

Chaman Prakash v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Chaman Prakash v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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