Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner, Sri Pawan Kumar Misra, Advocate holding brief of Sri Pranjal Mehrota, learned counsel for respondent nos.2 and 3 and learned Standing Counsel for the State-respondent nos.1, 4 and 5. Supplementary affidavit filed by learned counsel for the petitioner is taken on record.
Instant writ petition has been filed seeking following reliefs :
"(i) Issue a writ, order or direction in the nature of certiorari quashing the Provisional Assessment notice dated 24.12.2019 and demand notice dated 27.02.2020 (Annexure no.3 and 4).
(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent authorities not to adopt any coercive measure against the petitioner in pursuance to the impugned Provisional Assessment notice dated 24.12.2019 and demand notice dated 27.2.2020 issued by respondent no.2."
Submission of learned counsel for the petitioner is that pursuant to provisional assessment notice dated 24.12.2019, petitioner has filed an objection on 02.01.2020 but without considering the same, final assessment was made by respondent -Power Corporation and thereafter demand notice dated 27.02.2020 has been issued against the petitioner demanding payment of Rs.3,73,998/-, in a most illegal and arbitrary manner. The petitioner was never served with the checking report dated 18.09.2019 It is further contended that respondent nos.2 and 3 have not proceeded in accordance with the provisions contained in Section 126 (3) of the Electricity Act, 2003 (in short '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 and 3 i.e. Power Corporation submits that on the basis of an inspection of the premises of the petitioner on 18.09.2019, the petitioner was found committing theft of electricity, hence, an FIR was registered. A provisional notice was issued on 24.12.2019. However, he has not been able to justify that the same provisional assessment shall be treated as final assessment. We are not at all convinced that despite the objection made to the provisional assessment it shall be treated as final assessment without considering or giving any opportunity of hearing.
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. 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, we are of the opinion that petitioner could not be compelled to deposit any amount on the basis of provisional assessment without affording any opportunity of hearing, while making final assessment. The entire procedure adopted by respondent-Power Corporation dehors the statutory provisions of Section 126 of the Act, 2003 and Clause 8.1 of the Code, 2005.The Clause 8.1 of the Code, 2005 provides the procedure to be adopted by the licensee for inspection, provisional assessment, hearing and final assessment in the case of theft of electricity. In the present case, amount which is mentioned in the provisional assessment has been treated as final assessment without affording any opportunity of hearing, hence, the same is in violation of principles of natural justice.
Considering the facts and circumstances of the case, but without entering into the merits of the case, the writ petition is disposed of directing respondent no.2 to consider the representation/objection dated 02.01.2020 (Annexure no.SA-1 to the supplementary affidavit) of the petitioner and decide the same strictly in accordance with law by passing an appropriate, reasoned and speaking order regarding final assessment, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, preferably within a period of one month from the date of receipt of a copy of this order.
For a period of one month or till any final decision is taken on the representation of the petitioner, whichever is earlier, the demand notice dated 27.02.2020 shall be kept in abeyance.
It is made clear that if the petitioner fails to file the representation as indicated above, he shall not be entitled to get the benefit of this order.
Order Date :- 27.1.2021 Manish Himwan