Heard learned counsel for the parties.
This petition is a classic example in the manner in which persons involved in theft of electricity misuse the writ court proceedings with the help of the Officers of the Electricity Department and thereby defraud the public exchequer. The facts as are apparent from the records of the present writ petition are as follows:
The petitioner a bulk consumer of electricity before this Court was found involved in theft of electricity as per the inspection report dated 15.10.1997. A First Information Report was lodged at the police station concerned under Section 39 & 45 of the Act, 1910. The Executive Engineer, Electricity Urban Distribution Division-II, District Ghaziabad, respondent no. 5 vide assessment order dated 21.10.1997 prepared a bill for an amount of Rs. 24,47,884 calling upon the petitioner to deposit the said amount.
According to the petitioner although the bill was incorrect yet he deposited the said amount under protest on 05.12.1997. Thereafter the petitioner is stated to have made an application for permanent disconnection. It is stated that the supply of electrical energy was permanently disconnected on 03.03.1999 and final bill of Rs. 5 lacs and odds was prepared. The petitioner requested for adjustment of the security amount against the final bill and for refund of the balance amount.
All of a sudden, the petitioner is said to have been served with a revised assessment bill dated 17.8.2002 wherein the demand was increased from Rs. 24,47,884 to Rs. 1,22,55,783/-. According to the petitioner, he made a representation against the revised assessment.
Since his representation was not being considered by the Executive Engineer he approached this Court by means of Writ Petition No. 43936 of 2002. The writ petition was disposed of by the Division Bench vide judgement and order dated 10.10.2002. For ready reference the order dated 10.10.2002 is quoted below:-
Learned counsel for the parties.
Against the impugned order dated 17.8.2002, Annexure 16 to the petition the petitioner may file a representation to the superintending engineer of U.P. Power Corporation who will decide the same by a speaking order within a month.
For a period of six week's the impugned recovery shall remain stayed.
The petition is disposed of.
Petitioner did not make any representation before the Superintending Engineer within the time permitted by the Division Bench of this Court. Such representation was not filed even after expiry of the period for which Interim protection was granted by the Division Bench.
What has been stated before this Court is that an application was made by the Board itself for modification of the said order. This application was drafted in the year 2002. A copy was served upon the assessee through his counsel and the same was presented before the Court in the month of November 2002. Merely because of the pendency of the modification application, the petitioner neither approached the Superintending Engineer nor deposited the money in terms of the assessment order despite the period of interim protection having been expired long back.
Vague allegations have been made in paragraph 32 that petitioner made a representation in October, 2002 and a copy is enclosed as Annexure 14 to this writ petition. There is no mention of the date of receipt of the said representation nor any document which could establish that such representation was actually filed by the petitioner is available on record. Copy of the representation does not contain any date even averment made in paragraph to that effect is vague. Paragraph 33 of the present writ petition, it has been stated that the modification application is still pending. The court will leave this issue at this stage as nothing much will depend upon the said issue.
According to the petitioner, after the U.P. Electricity Supply Code, 2002 (in short "Supply Code, 2002") was enforced the power to decide the representation against the assessment order stood withdrawn from Superintending Engineer. It was the Area Level Committee which could have examined the grievance of the petitioner against the assessment order. Therefore, the petitioner also made an application for modification of the order dated 10.10.2002 along with an application to transpose the area level committee as one of the respondents in the writ petition.
The modification application and the impleadment application of the petitioner are stated to be pending. It is then stated that the petitioner made an application for a new electricity connection being provided for the same unit. The Chief Engineer vide letter dated 31.12.2010 obtained directions from the U.P. Power Corporation through its Chairman in the matter of sanctioned of new connection. The Director of the Corporation is stated to have permitted release of the new connection only after obtaining a bank guarantee as per the revised amount assessment dated 17.8.2002. The petitioner accordingly furnished a bank guarantee for an amount of Rs. 95 lacs. According to the petitioner electrical energy has not been provided till date to his unit.
On 12.7.2011 the Superintending Engineer has passed the impugned order on the representation of the petitioner holding therein that the earlier assessment made by the Executive Engineer dated 21.10.1997 was contrary to the statutory regulations applicable in the matter of assessment in the case of theft. The petitioner on being correctly assessed in accordance with the statutory provisions is liable to pay a sum of Rs. 1,22,55,783/-. After adjustment of the amount already deposited, he has to deposit the balance amount of Rs. 98,07,924/- along with interest. It has been recorded that the assessment order dated 17.8.2002 is strictly in accordance with law and that the petitioner may deposit the money within 2 months failing which it will be recovered as arrears of land revenue.
It is against this order the the present writ petition has been filed.
On behalf of the petitioner, it is contended that the order of the Superintending Engineer is without authority as in view of the enforcement of the U.P. Electricity Supply Code, 2002 the power in that regard vests with the Area Level Committee/Chief General Manager. It has further been stated that the order has been passed without affording opportunity to the petitioner.
On behalf of the respondent, a preliminary objection was raised. It is submitted that the petitioner has statutory alternative remedy under Section 127 of the Electricity Supply Act, 2003 (hereinafter referred to as Act 2003).
This Court while considering the present petition on 12.10.2011 noticed that the period for which interim order was granted by the Division Bench in earlier writ petition on 10.10.2002 expired in the month of November, 2002 itself. There being no interim order in favour of the petitioner thereafter by any court of law or by any authority, he should have deposited the entire amount as per the order dated 17.8.2001. Petitioner successfully evaded the payment of assessed amount of Rs. 1 crore and 22 lacs and odds for more than 9 years. What is surprising to note is that despite being a defaulter and despite there being no interim order in his favour, he obtained an order for fresh connection being provided to him only that furnishing a bank guarantee for an amount of 98 lacs after more than 9 years of the assessment order. In normal course of commercial transactions this amount would have tripled only prevalent on bank interest rates being applied.
The court therefore passed an order on 12.10.2011 which reads as follows:
A preliminary objection has been raised on behalf of the respondents that the present writ petition is liable to be dismissed on the ground of statutory alternative remedy of appeal available under the Electricity Code.
Petitioner is stated to be involved in theft of electricity. An assessment order was made on 17th August, 2002 raising a demand of Rs.98 lacs and odds. Aggrieved petitioner filed writ petition no. 43936 of 2002 before this Court. The High Court permitted the petitioner to represent his grievance before the Superintending Engineer, who in turn was directed to decide the same within a month. For a period of six weeks the recovery was stayed.
More than 9 years have elapsed from the date of the expiry of the term of the interim order, petitioner has not deposited the disputed amount only in garb of the fact that he had filed a modification application which remained pending for years together. In between he succeeded in obtaining fresh connection for the same premises.
After the matter was argued at some length and after examination of the records of the present writ petition, the Court was satisfied that the present writ petition has to be dismissed. There has been grossest abuse of the process of the Court.
While proceeding to dismiss the petition, this Court noticed that the judgement may result in a liability being fastened upon the petitioner qua payment of interest at the rate of 16% compoundable after every 6 months as per Clause 8.1 of the Electricity Code. This Court, therefore, feels it just and proper to afford an opportunity to the petitioner to show-cause as to why such a direction be not issued while dismissing the present writ petition. For the purpose, a week's time would suffice. Further reasons in support of the judgement shall be recorded on the next date.
Put up this matter on 18th October, 2011 for consideration of the issue of interest and for dictation of the judgement before this Court.
The matter was taken up again on 18.10.2011 when the picture turned murkier. It was brought to the notice of the Court that the modification application on behalf of the U.P. Power Corporation was in fact presented before the Court in the year 2007 being Modification Application No. 46001 of 2007. The Division Bench decided the modification application vide order dated 13.8.2010. The photocopy of the order dated 13.8.2010 was produced and was retained on record. The petition was directed to be put up today along with original records of Writ Petition No. 43936 of 2002.
Today, from the records of the writ petition, this Court finds that the application for modification was presented on behalf of the U.P. Power Corporation only in the year 2007 although it was drafted on 25.11.2002 and decided on 13.8.2010 neither the counsel for the petitioner nor the counsel for the U.P. Power Corporation informed the Court that the modification application stands decided nearly one and half years earlier, nor the said order has been referred to in the impugned order passed by the Superintending Engineer. What is worse is that a legal opinion of an Advocate of High Court is stated to have been forwarded to the Superintending Engineer vide letter dated 9.1.2010 received on 18.10.2010 to the effect that the modification as well as impleadment application are still pending.
Such legal opinion apparently appears to have been prepared either without examination of the records of Writ Petition No. 43936 of 2002 or deliberately correct facts had not been mentioned therein.
This Court further finds that two applications were filed by the petitioner in Writ Petition No. 43936 of 2002 bearing Application No. 46001 of 2006 and the other Impleadment Application No. 22606 of 2006. The petitioner for the first time prayed for Impleadment of Area Level Committee/Chief General Manager, Ghaziabad as one of the respondent in the writ petition of the year 2002 which had already decided on 10.10.2002. By means of modification application, petitioner prayed for modification of the order dated 10.10.2002 and for a direction being issued for his representation being decided by the Area Level Committee.
This Court may record up in the applications filed in the year 2006, absolutely no averment has been made that the petitioner has represented before the Superintending Engineer in terms of the order of Division Bench dated 10.10.2002 and that he has not decided the representation for want of jurisdiction.
This Court in the facts of the case is satisfied that between the petitioner and the Officers of U.P. Power Corporation the public exchequer has been made to suffer. They have colluded among themselves as a result whereof the amount as per the assessment order dated 17.8.2002 has not been recovered for more than 9 years, initially in the garb of pendency of the modification application and even after decision of modification application on the pretext that they were not aware of the order passed by the Division Bench dated 13.08.2010.
The reason is obvious. Other considerations must have prevailed. This Court cannot be a mutate expectator to the facts like the one before it. Neither the petitioner nor the U.P. Power Corporation could furnish any explanation as to why even expiry of the period of six weeks from the date of the order dated 10.10.2002 when the interim order granted by the Division Bench expired, no representation was made by the petitioner before the Superintending Engineer and if made not decided, why the money was not recovered in terms of the re-assessment order dated 17.8.2002.
Sri B.C. Rai, Advocate contended that the Superintending Engineer was not competent to decide the representation and, therefore, he has rightly not decided the representation as a result whereof assessment order could not be enforced.
Such an argument on behalf of the petitioner doesn't appeal to the Court. It appears that petitioner has little or no knowledge of the effect of the time bound interim protection which was granted by the Court on 10.10.2002, which lost its life automatically on expiry of the period for which it was granted.
It was the petitioner who had obtained the order from the High Court for his representation being decided by the Superintending Engineer. He was granted interim protection for six weeks under order dated 10.10.2002 only.
Counsel for petitioner with all vehemence at his command submits that the Superintending Engineer did not have the competence to decide his representation in view of the enforcement of Code of 2002. If the Superintending Engineer did not have the jurisdiction to decide his representation, the order of the High Court will not confer jurisdiction upon him and in that circumstance it was always open to the petitioner to approach Area Level Committee. Petitioner which he has chosen not to do so for 9 years. There was no bar in his approaching the appellate authority in accordance with law. The reasons for such inaction on the part of the petitioner could not be explained. Even after the order of the High Court dated 13.8.2010 petitioner has not filed any representation before the Area Level Committee.
What is worst is that according to the petitioner, interest on the assessed amount as per the order dated 17.8.2002 cannot be charged inasmuch as the proceedings pertain to a period prior to the enforcement of Act of 2003.
In view of the order passed by the Division Bench on the modification application in Writ Petition No. 43936 of 2002 dated 13.08.2010 which reads as follows:
Order on Modification Application No. 46001 of 2007 The writ petition has been disposed of finally vide order dated 10.10.2002 directing the petitioner to file representation before the Superintending Engineer of U.P. Power Corporation for decision by a speaking order within a period of one month.
This modification application has been filed on 25.11.2002 by the respondents wherein it has been averred that recovery of Rs.98,07,899.00 against the petitioner is above Rs. 10 lacs, hence the Committee at area level, CGM only has jurisdiction and authority to decide the representation of the consumer/petitioner in accordance with the Uttar Pradesh Electricity Supply Code-2002 (Distribution Code). It has also been averred that the Committee at Circle level/DGM (Superintending Engineer) has the jurisdiction to decide the representations etc. only up to the amount of Rs.2 lacs, hence the order dated 10.10.2002 passed by this Court may be modified directing the representation of the petitioner to be decided by the Committee at area level CGM instead of Superintending Engineer.
Sri Vinod Mishra, learned counsel for the respondents (as his Lordship then was ) has been elevated to the Bench and has since retired. Learned counsels for the petitioners are not present to oppose this application which is listed today before this specially constituted Bench by nomination of one of us namely Hon'ble Naheed Ara Monnis in place of his Lordship Hon'ble M. Katju J. who was one of the Judges on the Bench when the petition was decided finally vide judgement and order dated 10.10.2002.
We have considered the modification application and as no one appears to oppose the application we are of the view that ends of justice would be accomplished if the modification sought for is allowed in the facts and circumstances of the case. The rule provides that the matter of recovery of above Rs.10 lacs be decided by the Committee Area Level, CGM.
For all the reasons stated above, it is directed that the Committee at area level, CGM instead of Superintending Engineer may decide the representation of the petitioner within a period of one month from today, if not already decided.
The modification application is disposed of accordingly.
It is always open to the petitioner to approach the Area Level Committee and to seek redressal of his grievance in view of aforesaid.
It is not necessary for this Court to consider the rival contention raised qua the correctness or otherwise of the order impugned in this petition passed by the Superintending Engineer dated 12.7.2011. This Court may record that even if the contention raised on behalf of the petitioner to the effect that order passed by the Superintending Engineer is found to be illegal for want of jurisdiction because of the applicability of the U.P. Electricity Supply Code, 2002. It would only mean that the representation filed by the petitioner before the Superintending Engineer itself was before an incompetent authority and, therefore, the order passed on such a representation would be of no consequence.
There is no challenge to the assessment order before any competent authority as on date.
This Court finds that the Division Bench of this Court in the case of Wig Brothers (Builders & Engineers) (P) Ltd. & Anr. vs. Union of India & Ors., reported in (2003) 3 Company Law Journal, 328 (Alld) has laid down that payment of interest is a necessarily corollary to the retention of the amount. It is neither panel nor it is confiscatory.
The issue of applicability of Act No. 2003 and the rate of interest to be charged is left open to be examined by the competent authority itself in accordance with the statutory provisions.
In the facts of the case such interest cannot be less than bank rates applicable for the relevant period.
This Court further directs that the Principal Secretary (Energy), Government of U.P. Lucknow shall hold a detailed enquiry in the mater both against the Officers of U.P. Power Corporation at Ghaziabad as well as the petitioner qua the manner in which recovery of the lawful dues was withheld for 9 years, and further as to how sanction for a new connection in favour of the petitioner was directed without insisting upon deposit of the entire outstanding amount along with interest being ensured. Such exercise must be completed within four weeks from the date a certified copy of this order is filed before him. All consequential action as may be warranted under law be taken against all found responsible for the situation.
Subject to the aforesaid observation, writ petition is dismissed.
Order Date :- 19.10.2011 Puspendra