Lokesh Mittal Alias Romi Vs State of U.P. and 3 Others

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Court No. - 39 Case :- WRIT - C No. - 27099 of 2020 Petitioner :- Lokesh Mittal Alias Romi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Srivastava,Shailesh Kumar Srivastava Counsel for Respondent :- C.S.C.,Ajay Kumar

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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 Standing Counsel for respondents no. 1 & 2 and Shri Ajay Kumar, learned counsel appearing for respondents no. 3 & 4.

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The instant petition has been filed seeking following reliefs :

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"(i) to issue a writ, order or direction in the nature of certiorari quashing the recovery notice dated 13.07.2020 for Rs.4,41,566/issued by the respondent no. 3,

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(ii) to issue a writ, order or direction in the nature of mandamus directing the respondent concern not to take any coercive action against the petitioner in the interest of justice during the pendency of the present writ petition before this Hon'ble Court."

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Submission of learned counsel for the petitioner is that the petitioner had a valid electricity connection for running brick kiln. The premises of the petitioner was inspected on 12.06.2019. A report was submitted that the petitioner is using electricity by illegal means and a first information report was lodged on 20.06.2019. The petitioner has not been served a provisional notice and the final assessment was made. Thereafter, the recovery proceeding has been initiated by means of the impugned recovery notice for Rs.4,41,566/-. Learned counsel for the petitioner further submits that without giving any opportunity of hearing to the petitioner, final assessment of electricity dues is bad in the eyes of law and the same may be quashed. He has relied upon the judgment passed by a Division Bench of this Court in Shishir Jain vs. Paschimanchal Vidyut 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.

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Learned counsel for the respondents no. 3 and 4 submits that the petitioner was using electricity by illegal means and the provisional assessment was made on 26.06.2019

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when no reply was given by the petitioner it was treated as final assessment pursuant to which the demand notice was issued by respondent no. 3. However, he has not been able to show that in case, after provisional assessment if any person fails to give reply within 15 days, the same provisional assessment shall be treated as final assessment. We are not at all convinced that in absence of any objection to the provisional assessment it shall be treated as final assessment.

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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 (supra) by a Division Bench of this Court, which has been relied upon by the learned counsel for the petitioner. 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 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.3 within three weeks from today ventilating his grievances and in case, such representation is moved, the same shall be considered and decided by respondent no.3 who shall pass an appropriate,

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reasoned and speaking order regarding final assessment after giving due 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. For a period of six weeks or till any final decision is taken on the representation of the petitioner, whichever is earlier, no coercive action shall be taken against him pursuant to recovery citation notice dated 13.07.2020.

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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. Order Date :- 18.1.2021 VR/

Lokesh Mittal Alias Romi v. State of U.P. and 3 Others

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Lokesh Mittal Alias Romi v. State of U.P. and 3 Others

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