Disposed

Durvin Singh v. State of U.P. and 2 Others

Allahabad HC4 Feb 2021WRIC/2813/2021

Case brief

AI extract

What is this about?

This court quashed a demand notice issued for electricity theft recovery because the final assessment was treated as such without affording the petitioner an opportunity of hearing, violating Section 126 of the Act, 2003 and the Electricity Supply Code, 2005. Instead of final disposal, the court directed the respondent to reconsider the representation after a hearing.

What did the court decide?

Petitioner directed to move a representation; demand notice kept in abeyance for six weeks; respondent to pass reasoned order after hearing within four weeks.

Durvin Singh Vs State of U.P. and 2 Others — Public Procurement and Tenders | Allahabad HC (2021)

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Court No. - 39

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Case :- WRIT - C No. - 2813 of 2021

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Petitioner :- Durvin Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Yogesh Kumar Srivastava, Noor Muhammad 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.3 and learned Standing Counsel for the Staterespondent nos.1 and 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 for quashing the demand notice dated 06.11.2020 issued by respondent no.3.”

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Submission of learned counsel for the petitioner is that petitioner has taken electricity connection and he was regularly paying the electricity bills. Thereafter, all of sudden petitioner came to know about the recovery citation dated 06.11.2020 issued against him for recovery of Rs.56,807/-. Further submission of learned counsel for the petitioner is that neither any checking report nor the provisional assessment has ever been served upon the petitioner. As such, petitioner was not afforded any opportunity to file objection against the provisional assessment, and the same has been treated as final assessment pursuant to which, the recovery citation has been issued, which is absolutely arbitrary and illegal. 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 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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The learned counsel appearing on behalf of respondent-Power Corporation submitted that the petitioner has committed theft of electricity. The demand

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notice was issued on the basis of provisional assessment, however, he has not disputed the fact that final assessment has been made without giving any opportunity of hearing to the petitioner.

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Be that as it may. 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 petitioner to move a representation before respondent no.3 within two weeks and the same shall be considered and decided by respondent no.3 by passing an appropriate,

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reasoned and speaking order 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.

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For a period of six weeks from today or till final decision on petitioner's representation, whichever is earlier, the demand notice dated 06.11.2020 shall be kept in abeyance.

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

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Order Date :- 4.2.2021 Manish Himwan

Durvin Singh v. State of U.P. and 2 Others

Case brief

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Durvin Singh v. State of U.P. and 2 Others

Case brief

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