Hon'ble Mrs. Vijay Lakshmi, J.
We have heard Sri Govind Krishna, learned counsel for the petitioner and Sri Nripendra Mishra, who has accepted notice on behalf of respondents no. 1 to 4.
A preliminary objection has been raised by the learned counsel for the respondents with respect to maintainability of this petition on the ground of availability of statutory alternative remedy of filing an appeal under Section 127 of Electricity Act, 2003 (hereinafter called as the 'Act').
Sri Govind Krishna, learned counsel for the petitioner, refuting the argument advanced on behalf of the respondents, submitted that in the facts and circumstances where the matter has traveled up to the Hon'ble Apex Court and on remand made by this Court vide judgment and order dated 04.12.2013 passed on earlier writ petition no. 67867 of 2009 of the petitioner, the matter was sent to the Executive Engineer for passing a fresh assessment order hence there is no justification to relegate the petitioner back to the alternative remedy of appeal. He has also submitted that since the action of the authorities is illegal, without jurisdiction and violative of fundamental rights of the petitioner hence the writ petition would be maintainable and is not liable to be dismissed on the ground of existence of alternative remedy.
Reliance in support of the contention has been placed on the Division Bench judgment in the case of Ashok Kumar and others Vs. State of U. P. and others [2008 (6) ADJ 660 (DB)]. He has also placed reliance upon another judgment of Hon'ble Apex Court in the case of New Okhla Industrial Development Authority Vs. Kendriya Karmachari Sahkari Grih Nirman Samiti, 2006 (II) RJ 1365.
Writ petition is directed against the order dated 12.02.2014 passed by the respondent no. 3 rejecting the objection raised by the petitioner with respect to provision assessment bill under Section 126 of the Act. Admittedly, the petitioner has statutory alternative remedy of filing appeal under Section 127 of the Act.
However, in order to appreciate the rival contention with respect to the question whether the petitioner, in the facts and circumstances, is liable to be relegated to avail alternative remedy, it would be necessary to state the facts in short, which are as under :
Petitioner is a partner of Firm M/s Classic Industries and carrying on business of stainless steel sheet. A load of 400 KVA has been sanctioned for the purpose. On 03.09.2009, a checking was carried out by the Engineers of the respondents-Corporation. In the said checking, the PT and CT chamber of 11 KV metering cable was found to be O. K. However, another special checking was conducted on 07.09.2009. A checking report was prepared and observations were made by checking team. Anomalies found were recorded in the report and memo was given to the Police Station requesting to lodge an F.I. R. of theft of electricity, on the basis of which first information report under Section 135 of the Act was lodged. Provisional assessment notice dated 15.09.2009 was issued to the petitioner proposing an assessment of Rs.1,28,46,211/-. Petitioner filed a detail objection to the provisional assessment on 14.10.2009 denying the allegation of theft of electricity. Vide letter dated 27.10.2009, petitioner was asked to appear before the Executive Engineer on 05.11.2009. On the said date, again a detail objection was filed with the prayer that provisional assessment notice be withdrawn. Executive Engineer vide letter dated 18.11.2009 informed regarding the rejection of the objection of the petitioner and finalized the assessment. Final assessment notice dated 18.11.2009 was challenged by the petitioner by filing writ petition no. 67867 of 2009. Initially, the Division Bench of this Court passed an interim order dated 17.12.2009 against which the Corporation filed Special Leave Petition before the Hon'ble Apex Court. Hon'ble Apex Court vide its order dated 26.04.2010, in Civil Appeal No. 3887 of 2010, with the consent of the parties set aside the interim order and requested the High Court to dispose of the writ petition at the earliest but not beyond the period of four months.
It may be relevant to point out at this stage that criminal action initiated against the petitioner was challenged by filing Criminal Misc. Writ Petition No. 19754 of 2009, M/s Classic Industries and others Vs. State of U. P. and others, which was disposed of vide order dated 09.10.2009 by making the following observation :
"However, considering the submission made by the learned counsel for the petitioner that the petitioner is ready to deposit the compounded amount because the offence is compoundable, therefore, it is directed that the petitioner shall approach the authority concerned of the Electricity Department within 15 days from today, till then no coercive steps shall be taken against the petitioner. In case the petitioner approaches the authority concerned for compounding, the offence shall be compounded within 10 days thereafter. Thereafter, the petitioner shall deposit the compounded amount within 10 days. In case the petitioner deposits the amount in the manner as mentioned above, he shall not be arrested till the submission of the police report under Section 173 (20) Cr. P. C. iI default, it shall be open to the I. O. to make arrest of the petitioner.
With the above direction this petition is finally disposed of."
Thereafter, the petitioner made an application for modifying/recalling/reviewing the order dated 09.10.2009 with a prayer to delete the sentence that "petitioners are ready to deposit the compounded amount because the offence is compoundable from the order dated 09.10.2009". The Division Bench finding that there exists no good ground to modify the order dated 09.10.2009 and the order did not require any modification rejected the application vide order dated 03.02.2012.
In the meantime writ petition no. 67867 of 2009 was taken up by the Division Bench of this Court for hearing, in pursuance of the request made by the Hon'ble Apex Court, but the same was deferred till the modification application moved by the petitioner in Criminal Misc. Writ Petition no. 19754 of 2009 was decided. After dismissal of the application on 03.02.2012, civil misc. writ petition was again taken up and was disposed of by making the following observation :
"In the result, the order dated 18.11.2009 is set aside. The matter is remitted to the Executive Engineer for passing a fresh assessment order in accordance with the provisions of Section 126 of the Electricity Act, 2003 after considering the objection of the petitioners dated 14.10.2009, submitted by the petitioners, as Annexure - 6 to the writ petition. The Executive Engineer shall also give a notice to the petitioners to appear before him before finalising the assessment. The Executive Engineer shall conclude the proceedings within a period of two months from the date the copy of the order is produced before him.
The writ petition is disposed of accordingly."
Learned counsel for the petitioner has contended that even at that stage remedy of appeal under Section 127 of the Act was available but the Division Bench did not relegate him to avail the said remedy rather proceeded to consider and decide the writ petition on merits hence in this petition also, the petitioner should not be relegated to the alternative remedy of appeal rather writ petition itself may be considered on merits.
The issue about alternative remedy was raised before the Division Bench and the Division Bench finding that petition was entertained and pending before this Court for the last four years and the matter also gone up to the Hon'ble Apex Court against the interim order, thought it fit to consider the case on merits. It may be relevant to quote the following observation from the Division Bench's judgment dated 04.12.2013 :
"This writ petition has been pending for the last 4 years. We at this stage, do not find it appropriate to issue notices to the respondent nos. 4, 5 and 6 to examine the allegations of bias made against them including the allegations made against the Executive Engineer who had passed the order dated 18.11.2009. Ends of justice be served in considering the submissions made by the learned counsel for the parties on merit instead of relegating the petitioners to avail the remedy of appeal."
It would be seen that basic fact which appears to have been there in the mind of the Division Bench in not relegating the petitioners to avail remedy of appeal was that the petition had remained pending for the last about four years. Thus, the Division Bench did not lay down any absolute law. It was only in the peculiar facts and circumstances of the case where petition remained pending for about four years, the said Division Bench thought it fit to proceed and hear the petition on merits.
Thus, there is no merit in the argument of the learned counsel for the petitioner that since the earlier writ petition was entertained and decided on merits, hence this petition is also to be entertained and he is not to be relegated to avail alternative remedy of appeal.
Reliance placed by the learned counsel for the petitioner on the judgment in the case of Ashok Kumar and others Vs. State of U. P. and others (supra) to support the contention that in the circumstances, petitioner should not be relegated to avail alternative remedy is again totally unfounded and the argument is without any substance. In the case of Ashok Kumar and others Vs. State of U. P. and others and other connected writ petitions (supra), no doubt, the assessment order passed under Section 126 of the Act was under challenge but the issue raised was that respondent no. 2 therein was not a licensee under the U. P. Electricity Reforms Act, 1999 or 2003 Act and, therefore, the respondent no. 3 could not be nominated or notified to be an assessing officer under Section 126 of Act, 2003. Challenge was also made to the Government notification dated 27.06.2006. The Division Bench finding that the issues involved were purely legal and jurisdictional and therefore, did not relegate the petitioners to avail alternative remedy. It may be relevant to quote following from the said Division Bench's judgment :
"7.The petitioners assailing the impugned orders/notices briefly submitted as under :
(1). The respondent no. 2 is not a 'licensee' either under U. P. Electricity Reforms Act, 1999 (hereinafter referred to as the "1999 Act") or the Act, 2003 and, therefore, the respondent no. 3 neither can be nominated or notified to be an 'assessing officer' under Section 126 of Act, 2003 nor the State Government's notification dated 27.06.2006 can confer such power upon him. The notification dated 27.06.2006 is thus illegal and ultra vires of the Act, 2003 rendering various assessment orders issued by respondent no. 3 also without jurisdiction.
(2) Though the impugned provisional assessment notice apparently pretend to give opportunity to the petitioners of showing cause against the proposed assessments but in fact there is flagrant violation of the procedure prescribed under Clause 6.8 of the U. P. Electricity Supply Code, 2005 (hereinafter referred to as Code, 2005) and in effect virtually no opportunity has been given to the petitioners. The entire proceedings are in flagrant violation of principles of natural justice.
(3) Neither DVVNL has been notified to be a "Government Electrical Undertaking" under section 2 (c) of 1958 Act nor the respondent no. 3 has been notified as "prescribed authority" under Section 2 (b) of 1958 Act, therefore, the demand notice issued under Section 3 of 1958 Act is wholly without jurisdiction.
(4) The very allegation of theft of electrical energy levelled against the petitioners is not substantiated by any material whatsoever and, therefore, unless the relevant material is disclosed to the petitioners, and charge of theft is proved they are not in a position to submit any effective defence to the allegations made against the petitioners. The entire action of the respondents is based on conjectures and surmises and is in flagrant violation of the procedure prescribed in law."
"10. Dealing first with the preliminary objection regarding availability of alternative remedy we are of the view that the issues which have been raised in all these petitions are purely legal and involves jurisdictional issues, therefore, these are not the cases where the writ petitions can be thrown on the ground of non exhaustion of alternative remdy. We need not to multiply various authorities on the subject but apt it would be to refer a recent one of the Apex Court in M/s Popcorn Entertainment and another Vs. City Industrial Development Corporation and another, JT 2007 (4) SC 70 wherein the Court has reiterated three exceptions for entertaining writ petition without relegating parties to avail alternative remedy and has said that if the action of the authorities is illegal and without jurisdiction; if the principles of natural justice have been violated and if the fundamental rights of the other side is violated, the writ petition would be maintainable, as is evident from para 15 to 19 and 44 of the judgment."
"11. All the three exceptions are applicable in these cases, if the contention of petitioners are upheld. Since the issues raised involve not only jurisdiction issue but also the constitutional rights of petitioners, i. e., non deprivation of their property except in accordance with the procedure prescribed in law, we are of the view that the said issues should be settled by this Court so as to avoid multiplicity of litigation on the same issues before various authorities. Moreover, vires of notification dated 27.06.2006 of the State Government issued under Section 126 of the Act, 2003 is also involved. It is well settled principle that an authority constituted under a provision cannot judge the validity of the order in the nature of delegated legislation, therefore, the question as to whether the said notification is valid or not cannot be decided either by the assessing officer or even by appellate authority under Section 127 of the Act, 2003. Hence, it is appropriate that these issues should be decided in these writ petitions without relegating the parties to avail alternative remedy. We accordingly negative preliminary objection and proceed to decide the issues on merits."
Thus, it was on account of the fact that legal issue with regard to the validity of the notification and jurisdiction was involved which could not have been decided either by the assessing officer or even by the appellate authority hence the petitioners therein were not relegated to avail alternative remedy, same is not so in the case in hand. In the present case, pure and simple challenge has been made to the provisional assessment order passed under Section 126 of the Act, 2003. Neither legality of any provision nor notification is under challenge nor any question of jurisdiction has been raised. Thus, the ratio of the judgment in the case of Ashok Kumar and others (supra) relied upon by the learned counsel for the petitioner has no application, in the facts and circumstances of the present case.
Reliance placed upon by the learned counsel for the petitioner on the decision of the Hon'ble Apex Court in the case of New Okhla Industrial Development Authority (supra) is also totally unfounded rather the ration of the decision of the said case is against the petitioner. It may be relevant to quote following from the said judgment :
"6. A High Court is not deprived of its jurisdiction to entertain a petition merely because in considering petitioner's right to relief question of fact may fall to be determined as pointed out in Gunwant Kaur Vs. Municipal Committee. In a petition under Article 226, the High Court has jurisdiction to try issues of law and fact. Where, however, the petition raises complex question of fact, the Court should not entertain the petition. In Mahanta Moti Das Vs. S. P. Sahid the High Court refused to go into the question as to whether trusts were public or private trusts as the question had involved investigation of complicated facts and recording of evidence. The view was upheld. Thus, if there is question on which there is a serious dispute cannot be satisfactorily decided without taking evidence, it should not be decided in a writ proceeding (See Union of India Vs. T. R. Verma). If disputed questions of fact arise and the High Court is of the view that those may not be appropriately tried in a writ petition, the High Court has jurisdiction to refuse to try those questions and relegate the party to his normal remedy to obtain redress in a suit."
"7. In a petition under, Article 226, the High Court has jurisdiction to try issues both of fact and law. When the petition raises complex questions of fact which may, for their determination, require oral evidence to be taken and on that account the High Court is of the view that the disputed statement may not be appropriately tried in a writ petition, the High Court should ordinarily decline to try the petition."
"8. Thus, a High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right, question of fact may fall to be determined. Ultimately, the question is one of discretion which is to be exercised in conformity with judicial principles."
Though, there is no dearth of the power in the High Court to entertain a writ petition even if it involves question of fact but normally where complex questions of fact are involved requiring evidence for effective adjudication, the High Court usually does not interfere in the matter in case any alternative remedy for proper investigation of facts can be undertaken is available. The question is not of the power but that of a discretion which is to be exercised in conformity with judicial principle.
In the case in hand, we find involvement of complex questions of fact which would require evidence for proper and effective adjudication and thus in conformity with civil judicial principle, the discretion vested in this Court is not liable to be exercised and there exists no good ground to permit the petitioner to by-pass the statutory alternative remedy of appeal.
Lastly, learned counsel for the petitioner submitted that since the allegations are made against the petitioner in respect of theft of electricity and the impugned order records that petitioner is guilty of various sub-sections of Section 135 of the Act 2003 hence the provisional assessment could not have been made as the provisions of Section 126 of the Act, 2003 relate to unauthorised use of electricity. The argument is totally misconceived.
Section 126 of the Act, 2003 relating to assessment fall under Chapter XII of the Act, 2003 which is in respect of investigation and enforcement whereas section 135 falls under Chapter XIV which relates to offence and penalty. Under Section 126 any person if on inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or even after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. This section is for recovery of electricity charges consumed in unauthorized manner whereas Section 135 makes unauthorized use of electricity a criminal offence. Thus, it cannot be said that there cannot be a provisional assessment in case of theft. Any person committing theft and using electricity in an unauthorized manner cannot escape from the liability of making payment for the consumption. Use of electricity in unauthorized manner may also amount to theft and he may be liable to face the criminal offence. Thus, the last submission is also devoid of any merits and is rejected.
In view of the above facts and discussion since the petitioner has an alternative remedy of filing appeal under Section 127 of the Act, 2003, this petition is not liable to be entertained and accordingly stands dismissed on the ground of existence of alternative remedy.
Order Date :- 29.5.2014 Dcs