Hon'ble Attau Rahman Masoodi,J.
Notices on behalf opposite party no.1 has been accepted by learned Chief Standing Counsel, whereas Mr. Amit Kumar Dwivedi, Advocate has accepted notice on behalf of opposite parties no.2 to 4.
Heard learned counsel for the parties and perused the records.
The instant writ petition has been filed challenging the order dated 26.11.2019, passed by the opposite party no.3 as contained in Annexure-1 to the writ petition. The petitioners have also challenged the checking report/finding dated 30.07.2019 prepared by opposite party no.4, whereby the petitioners have been charged with electricity theft by taking false connection under LMV-10.
Learned counsel for the petitioners submits that the petitioner no.2/Mithilesh Kumari being an ex-employee of Power Corporation had taken the electricity connection under LMV-10 category in the premises being House No.639/25, Raghuwar Enclave, Indira Nagar, District Lucknow, where she resides as a tenant. The opposite parties on the basis of an inspection had assessed the power theft and demanded her to deposit a sum of Rs.2,46,716/-. The petitioner feeling aggrieved had filed Writ Petition No.28157 (MB) of 2019. The court vide order dated 17.10.2019 has disposed of the writ petition with liberty to the petitioner to move a fresh representation before the Executive Engineer, Electricity Urban Distribution Division, Lucknow for redressal of grievances and the said authority was required to consider and decide the same by way of a speaking and reasoned order in accordance with law. It is submitted that the Executive Engineer thereafter had decided the representation of the petitioner by the impugned order dated 26.11.2019 and has directed the petitioner to deposit a sum of Rs.1,43,592/- towards the electricity dues. It is submitted that the opposite parties have wrongly come to conclusion that there was unauthorized use of electricity under LMV-10 connection on the basis of alleged inspection on 15.10.2019 when it was found that one Mithilesh Mishra has been extended the unauthorized benefit of said connection and he is in use of the electricity under LMV-10 connection.
The submission is that the opposite parties, on their own, without any basis have held that Mithilesh Mishra is unauthorizedly using the electricity connection which was given to petitioner no.2/Mithilesh Kumari. The opposite parties have deliberately and intentionally imposed the impugned electricity demand on the basis of alleged unauthorized use of electricity.
Mr. Amit Kumar Dwivedi, learned counsel appearing for the opposite parties no.2 to 4, on the other hand, submits that Mithilesh Kumari being an ex-employee of the power corporation was given the LMV-10 connection which is given only for the own use of the employees for domestic purposes at the fixed rate. The consumer cannot extend the said benefit to an outsider. It is submitted that on an inspection made by the electricity department authorities it was found that LMV-10 connection in the name of Mithilesh Kumari was being wrongly used by one Mithilesh Mishra and there was unauthorized use of electricity for which the assessment was made and the petitioners were asked to deposit certain amount. It is submitted that against the earlier assessment Mithilesh Kumari had submitted a representation dated 5.9.2019. On the said representation the fresh checking report was prepared and on the basis of inspection dated 3.9.2019 the Sub Divisional Officer, Sector 14 submitted its report dated 20.9.2019 and on that basis fresh assessment to the tune of Rs.1,43,592/- was made and the same was communicated to the petitioner vide letter dated 10.10.2019. It is also submitted that the Executive Engineer himself made the inspection along with the Sub Divisional Officer and Junior Engineers on the premises in question on 15.10.2019 and found that Mithilesh Kumari in connivance with Brahma Prakash Pandey were in unauthorized use of LMV-10 connection as they had extended the benefit of the said connection to tenant Mithilesh Mishra. They had not produced any evidence in their support on the basis of which the revenue demanded from them could be reduced. The assessment made was found to be correct, as such, they were required to deposit the same latest by 26.11.2019. The representation was accordingly decided.
It is submitted that since the LMV-10 connection which was in the name of Mithilesh Kumari could not have been used by any other person than her family members, as such, once it was found that Mithilesh Kumari had extended the benefit of the said connection to the tenant Mithilesh Mishra, as such, the assessment with respect to the unauthorized use of electricity was found to be correct and they have been directed to deposit the same. There is no infirmity or illegality in the action taken by the authority concerned.
We have considered the submissions made by parties counsel and gone through the records.
It is to be noted that LMV-10 connection is meant for the departmental employees only which includes retired/voluntary retired or deemed retired employees. They are required to use the said connection for their own use for light, fan and power for domestic appliances, where the energy is being fed directly from licensee mains. The schedule of LMV-10 shall also apply to spouse of employees served under licensees/successor entities.
Learned counsel for the opposite parties no.2 to 4 informs that in fact LMV-10 is given on fixed rates. In this regard he has placed relevant portion of the type of Electricity Connection, the same has been taken on record.
In the present case, as per the inspection made by the Executive Engineer on 15.10.2019 in the presence of the petitioners as well as Sub Divisional Officer and other officers such as Junior Engineers, it was found that the petitioner no.2 in connivance with Brahma Prakash Pandey was extending the benefit of LMV-10 connection to the tenant Mithilesh Mishra, as such, there was unauthorized use of electricity by Mishilesh Mishra for which the petitioners were responsible and therefore the assessment for unauthorized use was found to be correct and they were required to pay the same. It is not the case of the petitioners that Mithilesh Mishra is a member of the family of Mithilesh Kumari who was the consumer of LMV-10 connection, as such, we are of the considered view that Mithilesh Kumari, the consumer had extended undue benefit to one Mithilesh Mishra who is said to be a tenant in the said premises, as such, there is no infirmity or illegality in the impugned order. The petitioners shall deposit the demanded amount without any further delay, failing which the opposite parties would be at liberty to take appropriate legal proceedings for the recovery of the same.
The writ petition, with the aforesaid observations is dismissed.
(Ritu Raj Awasthi, J.) Order Date :- 19.12.2019 Ram.
Case :- MISC. BENCH No. - 35505 of 2019 Petitioner :- Brahma Prakash Pandey & Anr.
Respondent :- State Of U.P.Thru.Prin.Secy.Electricity Lucknow & Ors.
Counsel for Petitioner :- Santosh Kr. Yadav "Warsi",Amit Kumar Gupta,Arun Kumar,Vineet Kumar Yadav Counsel for Respondent :- C.S.C.,Amit Kumar Dwivedi Hon'ble Ritu Raj Awasthi,J.
Hon'ble Attau Rahman Masoodi,J.
Having heard the learned counsel for the parties and having the privilege of hearing the order passed by my esteemed Brother, I find myself in humble disagreement and, therefore, pass the following order:
Undisputedly, the Municipal No.639/25, Raghuwar Enclave Indira Nagar, District Lucknow is an identified accommodation belonging to the petitioner no.1, wherein petitioner no.2 is a tenant. It is undisputed that the petitioner no.2 was allotted a valid electricity connection being an ex-employee of the U.P. Power Corporation Ltd. under the category of LMV-10 on a fixed charge against the said accommodation. The consumer has been paying the electricity dues regularly in whose name the connection is granted as a tenant. The assessment in question has been made on the allegation of theft of electricity in the same very premises based on the inspection report dated 20.09.2019, contained in Annexure No.12 to the writ petition.
In nutshell the allegation of theft has been raised on the ground of sub-tenancy to one Mithilesh Mishra whose name does not find mention in the earlier inspection report. Even a case of theft before assessment against the person involved in the theft of electricity is not said to have been registered.
The assumption of sub-tenancy does not proceed on the basis of any concrete evidence and the tenancy of petitioner no.2 being an ex-employee of the Corporation and his entitlement to LMV-10 connection remains undisputed. The connection has also been disconnected on the allegation of theft of electricity i.e. sub tenancy.
I am of the definite view that the theft of electricity and its unauthorized use are two distinct concepts under the Electricity Act, 2003. Every case of theft involves unauthorized use but every type of unauthorized use of electricity is not a theft. This fine distinction becomes more obvious when it is found under the scheme of the Act that the theft of electricity is punishable for the offence and through assessment of civil liability both, whereas, a case of unauthorized use of electricity merely entails a consequence of assessment as per the procedure prescribed.
Prima facie, the alleged ground of discovering some sub-tenant in the premises duly rented to petitioner no.2, that too without any proof and merely on the basis of report like the one submitted on 20.09.2019 raises a serious doubt as to the very nature of allegation as well as the consequential assessment, as such, it shakes the very authority under which the whole action has come about.
In my humble opinion, the matter requires consideration of the court.
Let the opposite parties show cause and file a counter affidavit within two weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.
Until further orders it is provided that the assessment made against the petitioners shall remain in abeyance. The electricity connection may also be considered for restoration on payment of regular dues.
(Attau Rahman Masoodi,J.) Order Date :- 19.12.2019 Ram.
Case :- MISC. BENCH No. - 35505 of 2019 Petitioner :- Brahma Prakash Pandey & Anr.
Respondent :- State Of U.P.Thru.Prin.Secy.Electricity Lucknow & Ors.
Counsel for Petitioner :- Santosh Kr. Yadav "Warsi",Amit Kumar Gupta,Arun Kumar,Vineet Kumar Yadav Counsel for Respondent :- C.S.C.,Amit Kumar Dwivedi Hon'ble Ritu Raj Awasthi,J.
Hon'ble Attau Rahman Masoodi,J.
Let the matter be placed before Hon'ble the Chief Justice/Senior Judge for appropriate orders.
(Attau Rahman Masoodi,J.) (Ritu Raj Awasthi, J.) Order Date :- 19.12.2019 Ram.