Court No. - 39
Case :- WRIT - C No. - 24155 of 2020 Petitioner :- Manish Kumar @ Deepak Dubey Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Radhey Shyam,Rajiv Kumar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Naheed Ara Moonis,J. Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner, Sri N. K. Tiwari, learned counsel appearing for respondent nos.2 and 3 and learned Standing Counsel for the State-respondent nos.1 and 4.
The instant petition has been filed seeking following relief :
“(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.07.2020 having Patrank 162 वव.वव.ख.रर./ररजसव/1 सस-4....(Annexure no.15 to the writ petition) issued by respondent no.3.”
At the very outset, learned counsel for the petitioner submits that being aggrieved by notice of recovery citation dated 01.11.2019, petitioner had preferred Writ C No.38785 of 2019, which was disposed of by order dated 28.11.2019 passed by a Co-ordinate Bench of this Court. Said order has been appended as Annexure-11 to the writ petition. For the sake of convenience, order passed on 28.11.2019 is reproduced hereunder :
“This writ petition has been filed, inter alia, for the following reliefs:
"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned recovery citation notice dated 01.11.2019 (Annexure No. 8) issued by the respondent no. 4."
Heard the learned counsel for the petitioner, Ms. Usha Kiran, learned counsel for the electricity department and perused the record.
Learned counsel for the petitioner has submitted that the respondents are taking coercive action against the petitioner without giving any opportunity of hearing and without following the provisions contained under the U.P. Electricity Supply Code 2005.
Considering the facts and circumstances of the case and taking a lenient view in the matter, we direct the petitioner to appear on 12.12.2019 at 11.00 A.M. before the Respondent No.3, Executive Engineer along with his objection and adduce his evidence, if any, in support of his contention.The Respondent No.3, thereafter, shall pass a final order by a speaking and reasoned order after considering the objections of the petitioner as well as the contention raised by the petitioner within a period of four weeks thereafter.
For a period of six weeks from today or till the disposal of the representation/objection, whichever is earlier, no coercive action shall be taken against the petitioner. In case of default in filing the objection/representation, as indicated herein above, the present interim order shall stand vacated and the impugned recovery citation shall stand revived automatically.
In case the petitioner is aggrieved with the final order, if any, passed against the petitioner, it will be open for the petitioner to file an appeal before the concerned authority under Section 127 of the Electricity Act, 2003 in accordance with law.
With the above observations, the writ petition stands disposed of.”
Learned counsel for the petitioner submits that in compliance of aforesaid order petitioner had moved a representation dated 12.12.2019 before respondent no.3, who passed an order on 14.07.2020 and while disposing of the representation, he had assumed the jurisdiction of Appellate Authority and passed the order by observing the provisions of Section 127 of the Electricity Act, 2003 (in short 'Act, 2003') for the disposal of appeal itself. Thus, the order passed by respondent no.3 is contrary to the order dated 28.11.2019 passed by this Court, as respondent no.3 has assumed the jurisdiction of Appellate Authority under Section 127 of the Act, 2003.
The aforesaid fact has not been controverted by learned counsel appearing on behalf of Power Corporation-respondent nos.2 and 3. However, he submits that if the petitioner is aggrieved by order dated 14.07.2020 passed by respondent no.3, he has the remedy to file an appeal before the Appellate Authority under Section 127 of the Act, 2003 and if there is any illegality in the order dated 14.07.2020, the same shall be taken into account by the Appellate Authority itself.
We have perused the order dated 14.07.2020 passed by respondent no.3 and we find that vide order dated 28.11.2019 passed in Writ C No.38785 of 2019, respondent no.3 was only directed to decide the objection of the petitioner pursuant to recovery citation dated 01.11.2019. However, while proceeding to decide the objection of the petitioner, respondent no.3 has assumed the jurisdiction of the Appellate Authority, which is not legally sustainable, as such remedy to file an appeal before the Appellate Authority under Section 127 of the Act, 2003 against order dated 14.07.2020, is still open to the petitioner. Needless to say that the Appellate Authority shall consider the appeal, so filed, and pass an appropriate order after considering the entire facts and circumstances of the case. In the meantime, no coercive action shall be taken against the petitioner by the respondent authorities.
In this view of the matter, this writ petition is disposed of on the ground of alternative remedy as mentioned above.
Order Date :- 8.1.2021 Manish Himwan