Court No. - 1
Case :- WRIT - C No. - 53599 of 2009 Petitioner :- Ishwar Dayal Respondent :- State of U.P. and Others Counsel for Petitioner :- Mahendra Nath Pandey Counsel for Respondent :- C.S.C.,Rajesh Tripathi
Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.
Heard Sri M.N.Pandey, learned counsel for the petitioner and Sri Ashutosh Dwivedi, learned Advocate holding brief of Sri Baleshwar Chaturvedi, learned counsel for the respondent Corporation and perused the record.
By means of present writ petition filed under Article 226 of the Constitution, the petitioner has questioned the recovery certificate dated 15th July, 2009 assailing it to be a quite illegal exercise of power in view of the fact as, he alleges, that permanent disconnection of electricity took place of his premises on 1st July, 2009. In this regard, he has drawn our attention towards the order that has been appended as annexure 5 to the writ petition. He however states that he acknowledges this fact that there was some inspection carried out at an earlier point of time in regard to the application filed by the petitioner for permanent dis-connection.
A counter affidavit has come to be filed by respondent Corporation in which document in the form of inspection report dated 25th May, 2008 has been appended in which petitioner has been found to be involved in unauthorized use of electricity and consequently provisional assessment order was issued on 21st June, 2008.
It is accordingly pleaded in the counter affidavit that in absence of any reply, provisional assessment had been taken to be a final assessment and pursuant to that a demand was generated for an amount of Rs. 1,07,422/- which has resulted in the consequential recovery citation.
Countering the submission learned counsel for the petitioner draws attention to another inspection report dated 15.6.2008, however, from the perusal of this another inspection report we find that unauthorized use of the electricity in relation to motor of 10 Horse Power which is also referred to in the earlier report.
Having heard learned counsel for the parties and their argument across the bar and having perused the record, we find that although disconnection of the electricity has taken place on 21st April, 2008 itself and the electric meter has been dismantled on the said date and its communication was made to the petitioner on 1st July, 2009, but petitioner was still found to be using electricity in an unauthorized way as per the inspection report. However, it is also admitted to the respondents to the extent that petitioner did not file objection and contention of the petitioner is that he had never been served with any inspection report nor, order of provisional assessment and the same has seen the light of the day through counter affidavit only .
Be that as it may, one thing that definitely emerges out from the pleadings of the parties, is that there has been inspection report of the matter and there was a provisional assessment order and since copy thereof has come to be filed alongwith counter affidavit, which has been challenged before this Court by means of present applicant, the petitioner atleast deserves a hearing by the respondents.
Accordingly, we are disposing of this petition with following directions:
i. Within six weeks from today petitioner shall necessarily file his objection and besides that he may ask for any document or information as he may find necessary;
ii. Respondent/Competent authority shall supply such documents in its possession or if not write to the petitioner accordingly within a week;
iii. Petitioner on receiving documents as supplied or reply of the competent authority shall submit further reply within a week thereafter;
iv. The respondent/Competent Authority upon receiving such further reply shall proceed to pass final order within two weeks.
v. Until disposal of the matter as directed hereinabove, no coercive action shall be taken by the respondents in the matter.
The writ petition stands disposed of with the aforesaid observations and directions.
Order Date :- 17.12.2019 Sanjeev
(Ajit Kumar,J.) (Ramesh Sinha,J.)