Court No. - 34
Case :- WRIT - C No. - 7473 of 2018 Petitioner :- Dharmendra Respondent :- State Of U.P. And Another Counsel for Petitioner :- Ravindra Kumar Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
1. Heard Sri Ravindra Kumar, learned counsel for petitioner, learned Standing Counsel for State of U.P. and Sri Ashutosh Kumar Dwivedi, learned counsel appearing for respondent no. 2.
2. Counsel for petitioner submitted that notice dated 28.11.2017 for assessment of Rs.2,59,879/-, does not give any reason as to why said assessment is being made and how same has been computed and it is not consistent with the Division Bench judgment of this Court in Ashok Kumar and Others Vs. State of U.P. and Others 2008 (6) ADJ 660 (DB), wherein this Court has stated as under :
“58. The term "unauthorized use of electricity" is defined in explanation (b) to Section 126 which includes usage of electricity (i) by any artificial means; or (b) by a means not authorised by the concerned person or authority or licensee; or (iii) through a tampered meter; or (iv) for the purpose other than for which the usage of electricity was authorised. Before issuing an assessment notice, therefore, the assessing officer must record its conclusion that the person concerned or any other person benefited has used electricity unauthorizedly in terms as defined in Explanation (b) of Section 126. The Act in respect to the stage of recording of conclusion by assessing officer regarding user of electricity by the person unauthorizedly does not provide specifically for any opportunity of hearing to the person concerned but also simultaneously does not prohibit the same. The allegation of unauthorised use of electricity by a person concerned, as defined in Explanation (b) also covers within its ambit certain acts/omission which constitute an offence under Section 135 of the Act, 2003. Therefore, it is a serious matter and no person can be indicted and held guilty of user of electricity unauthorizedly unless he is given an opportunity of hearing before coming to such conclusion. Where a person is held guilty of unauthorised user of electricity, besides making him responsible for paying penalty in the shape of assessment under the Act, 2003 it also causes stigma on his conduct. He is declared an anti-social person indulging in a serious unsocial activity, by causing loss to the society and country in general and electricity undertaking in particular. Such condemnation of a person would not be permissible on the mere vagaries of the authority i.e. assessing officer unless such a person is given a fair opportunity of hearing i.e. putting his defence before the said authority. This Court is clearly of the view that before making provisional assessment, the assessing officer, in law, is bound to afford an opportunity to the consumer or person concerned of the allegations of means and ways in which he is said to have unauthorizedly used electricity, and, should be given an opportunity of placing his defence. Thereafter the assessing officer shall record its conclusion with respect to unauthorised use of electricity, to confer upon himself the jurisdiction to issue provisional assessment notice. The object of opportunity at the two stages namely, before arriving at the conclusion of unauthorised use of electricity and before making final assessment are distinct. In the former, it is the very issue whether the consumer is guilty of unauthorised use of electricity or not and in later case it is the quantum of amount which he is required to pay as a compensation and a fiscal preventive measure for committing such irregularity. The first one is the stage of finding the person guilty and later one is the stage of determining extent of monetary liability for compensating electrical undertaking qua the alleged unauthorised use of electricity by such persons. It is only when the proceedings are conducted in the above manner, the assessment made can be held valid and not otherwise.
59. It is true that judicial cognizance can/should be taken of the fact that theft of electricity has become a serious menace and a social evil not only in the State of U.P. but in the entire country. The electricity has become a necessity in the present day of society and development of society as well as nation cannot be conceived of without electricity. The availability of electricity however is much in deficiency. A huge amount of electricity, consumed by scrupulous persons is causing a serious loss to public revenue hampering and obstructing the development of electrical sector in particular as well as society and nation in general. Therefore, to check theft of electricity and/or unauthorized use of electricity, stern measures are required to be taken. The various provisions of Act, 2003 shows that the legislature is also concerned about it and has take several measures from time to time including making harsh provisions in the statute.
60. However, this by itself would not justify condemnation and indictment of a citizen or a consumer of electricity by holding him guilty of unauthorized use of electricity on the vagaries of the officers of electrical undertaking unless he is disclosed the manner in which he was found using electricity unauthorizedly on inspection by the officer concerned and given an opportunity to explain his case, if any. It is well settled law that no person can be indicted or condemned without giving a minimal opportunity of hearing. In the case of unauthorized use of electricity found by the assessing officer at any place or the premises etc. or otherwise, the same has to be disclosed to the person concerned giving him an opportunity to put his defence. The principles of natural justice unless excluded by express provision of the Act or by necessary implication cannot be said to be inapplicable when a citizen or person is being indicted of a serious charge, i.e., unauthorized use of electricity, which in some of the cases an offence under Section 135 of Act, 2003.
61. On behalf of the respondents it is argued that in case, such a view is taken, that would amount to delay of issuance of notices and proceedings and may hamper the very objectives of the Act i.e. prevention of theft/unauthorized use of electricity. We are not impressed with the said objection. It is permissible to an 'assessing officer' to cover both the aspects of the matter in the show cause notice, which he is required to issue under sub-section 3 of Section 126 of the Act. The conclusion with respect to unauthorized use of electricity is a condition precedent for issuing provisional assessment notice and, therefore, unless opportunity is given and a finding is recorded whether there is unauthorized use of electricity or not, the question of assessment would not arise. Obviously, no person can come to the conclusion of unauthorized use of electricity suo motu without giving an opportunity to the person concerned and any other procedure would not only be violation of principles of nature justice but would also be arbitrary, infringing Article 14 of the Constitution of India. In order to read Section 126 (1) constitutionally valid, we have no hesitation in observing that before coming to any conclusion the assessing authority would give an opportunity to the person concerned to find out whether he is/was indulged in unauthorized use of electricity.”
3. It is further submitted that without any opportunity to petitioner demand notice under Section 3 of U.P. Government Electrical Undertakings (Dues Recovery) Act, 1958 has also been issued on 27.12.2017, which is patently illegal and without jurisdiction.
4. Learned counsel for respondents could not dispute that show cause notice dated 28.11.2017 is not consistent with requirement of Clause 6.8(b) of U.P. Electricity Code, 2005 and does not satisfy the requirement of law laid down by this Court in Ashok Kumar (Supra).
5. In view thereof, writ petition is allowed.
6. Impugned demand notice dated 27.12.2017 and show cause notice dated 28.11.2017 are hereby set aside. However, authorities concerned shall initiate proceedings afresh in the light of observations made by this Court in Ashok Kumar (supra).
Order Date :- 28.2.2018 A. Verma