Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner, learned Standing Counsel appearing for the respondent no. 1 and Sri S.K. Yadav, learned counsel for respondent nos. 2 & 3.
Instant writ petition has been filed seeking following reliefs :
?a). Issue a writ, order or direction in the nature of certiorari for quashing the provisional assessment notice dated 30/06/2020 and subsequent recovery demand notice dated 01/12/2020 issued by the respondent no. 3.
b). Issue a writ, order or direction in the nature of mandamus commanding the respondents not to disconnect the electricity of the petitioner on the basis of the impugned order and also did not take any coercive action against the petitioner.
c). ..........
d). .........."
Facts of the case are that the petitioner is having an electricity connection of 7 H.P. and regularly paying the electricity charges. It is alleged that on 23.6.2020 a vigilance team of the Electricity Department had inspected the petitioner's premises and found that he was using electricity by illegal means. The provisional assessment was made on 30.6.2020. Against the provisional assessment, the petitioner filed his objection on 18.8.2020. Thereafter, recovery demand notice has been issued against the petitioner on 1.12.2020.
Submission of learned counsel for the petitioner is that the respondent authority, without considering the objection of the petitioner and affording opportunity of hearing to him, has treated the provisional assessment as final assessment and pursuant to which the recovery demand notice dated 1.12.2020 has been issued, which is contrary to statutory provision of law. It is further contended that respondent authority has not proceeded in accordance with the provisions contained in Section 126 (3) of the Act, 2003 and Clause 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.
Learned counsel appearing on behalf of respondent nos. 2 & 3 i.e. Power Corporation Limited, submits that since the petitioner has failed to submit objection to the provisional assessment within the stipulated period, as such, the same was treated as final assessment. However, learned counsel for the Power Corporation could not justify as to why the objection which has been filed 18.8.2020, has not been considered while passing the final assessment order.
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 wherein it has been held that in case there is no final assessment, the petitioner cannot be compelled to deposit the amount of provisional assessment. The relevant paragraph 16 of aforesaid judgment reads as under :
?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.?
In view of aforesaid, the writ petition is disposed of with the direction to the respondent no. 3 - Executive Engineer, Electricity Distribution Division - III, Pashcimanchal Vidyut Vitran Nigam Limited, District - Muzaffarnagar to consider and decide the objection of the petitioner dated 18.8.2020 in accordance with law by means of a reasoned and speaking order regarding final assessment within a period of four weeks weeks from the date of receipt of a copy of this order, after affording opportunity of hearing to him.
For a period of six weeks or till any final decision is taken on the objection of the petitioner, whichever is earlier, no coercive action shall be taken against him pursuant to recovery demand notice dated 1.12.2020.
Order Date :- 2.2.2021 nd