Court No. - 29
Case :- WRIT - C No. - 24191 of 2018 Petitioner :- Albatross Inland Ports Pvt. Ltd.
Respondent :- State Of U.P. And Another Counsel for Petitioner :- Chhaya Gupta,Sujeet Kumar,Sr. Advocate A.K. Verma Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Mithal,J. Hon'ble Saral Srivastava,J.
Heard Sri A.K. Verma, learned counsel assisted by Sri Siddhartha Yadav, for the petitioner, learned Standing Counsel for respondent no. 1 and Sri Tarun Agarwal, learned counsel for respondent no. 2.
The petitioner is a bulk consumer of electricity. It was sanctioned HV-2 connection of 250 KW some time in the year 2008. The said electricity load sanctioned to the petitioner had been increased from time to time. The petitioner was billed accordingly and was making the payments.
A show cause notice dated 04.06.2018 was issued to the petitioner contending that the petitioner was wrongly billed in the HV-2 category and in fact the tariff rate of HV-1 was applicable which is for non industrial bulk load. The petitioner as such was called upon to submit his explanation why it should not be billed according to HV-1 tariff.
In response to the said show cause notice petitioner submitted its reply and finally an order has been passed by the respondent no. 2 on 06.07.2018 holding that the petitioner is liable to pay electricity changes as per tariff of HV-1 and that an amount of Rs.1,92,57,006/- only is payable by it as per the final assessment.
Simultaneously, the petitioner was first assessed provisionally as per the tariff of HV-1 and thereafter final assessment was done in the HV-1 category from day one till date.
It is in this back ground that the petitioner has preferred this writ petition for quashing of all the above proceedings initiated by respondent no.2 commencing from the show cause notice dated 04.06.2008 till 06.07.2018 when the final order thereof was passed.
The submission of learned counsel for the petitioner is that respondent no.2 itself treated the petitioner in the category of HV-2 and it was the respondent no.2 itself that had been raising the bills accordingly. The respondent no. 2 has not followed the procedure prescribed under Section 127 of the Electricity Act, 2003 in making the provisional/final assessment and has wrongly treated the petitioner to be unauthorized user of electricity.
Sri Tarun Agarwal, learned counsel appearing for respondent no. 2 has raised a preliminary objection that the petitioner has an alternative remedy of filing an appeal under Section 127 of the Electricity Act, 2003 against the impugned order and the final assessment and, as such, writ is not a proper remedy at this stage.
In response to the above, submission of learned counsel for the petitioner is that as the order is patently illegal and arbitrary and that the petitioner is not an unauthorized user of electricity, the alternate remedy would not be a bar in maintaining this petition.
In short, the dispute is whether the petitioner is liable to pay electricity charges accordingly to tariff HV-1 or HV-2 and even if HV-1 tariff is applicable the respondent no.2 can demand it also for the period prior to the show cause notice.
The show cause notice dated 04.06.2018 issued by the respondent no.2 and even the order dated 06.07.2018 are not without jurisdiction and have not been passed in violation of the principles of natural justice to permit us to ignore the alternative remedy of appeal.
It appears that the petitioner was wrongly categorized in the HV-2 category and the respondent no.2 is competent to rectify the said mistake after due notice to the petitioner.
In view of the above, we do not see any error of jurisdiction on part of the respondent no.2 in rectifying the said mistake.
Thus, the challenge to the show cause notice dated 04.06.2018 or to the order dated 06.07.2018 is not tenable.
Now coming to the final assessment, the petitioner, if aggrieved, has a remedy of appeal under Section 127 of the Electricity Act, 2003.
In view of the aforesaid facts and circumstances, we are relegating the petitioner to the remedy of the appeal but keeping it open for the appellate authority to deal with the issue of the tariff applicable to the petitioner and if the tariff of HV-1 is applicable if the petitioner can be assessed and billed according to the said tariff even for the period prior to the show cause notice as it was not its fault.
Accordingly, we dispose of this writ petition with liberty to the petitioner to file an appeal against the final assessment within a month from today and to raise the above grounds therein. In case any such appeal is preferred, it shall be considered and decided by the appellate authority most expeditiously, if possible within a period of three months from the date of its filing, and for a period of four months or till the appeal is decided whichever is earlier, no coercive steps shall be taken against the petitioner to realize the arrears of the electricity dues for the period prior to show cause notice dated 04.06.2018 provided the petitioner deposits all dues thereafter at the tariff rate HV-1 and continues to pay the bills as per the HV-1 tariff.
Order Date :- 26.7.2018 Israr