Court No. - 32
Case :- WRIT - C No. - 38816 of 2018 Petitioner :- M/S R. Ratansheet Grah Pvt. Ltd And Another Respondent :- Dakshinanchal Vidyut Vitran Nigam Limited And Another Counsel for Petitioner :- Mayank Kumar Agrawal Counsel for Respondent :- Baleshwar Chaturvedi
Hon'ble Shashi Kant Gupta,J. Hon'ble Mrs. Manju Rani Chauhan,J.
This writ petition has been filed, inter alia, for the following relief:
"(I) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 22.6.2018 ( filed as Annexure no. 12 to this writ petition) passed by the respondent no. 2."
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Perusal of the record shows that the petitioners are running cold storage at Bidhuna, District Auraiya. On 27.07.2016 an alleged checking was carried out and it transpired that the petitioner was engaged in theft of electricity by directly trapping 11 KV main line. The load that was detected was 180 KVA and it was alleged that the Cold Storage was being run through the said direct illegal connection. Consequently, the first information report was lodged against the petitioner under Section 135 of the U.P. Electricity Act 2003 (in short the "Act") which was registered as Case Crime No. 0356 of 2016 at Police Station Bidhuna, District Auraiya.
Thereafter the petitioner was served provisional assessment under Section 126 of the Act dated 06.08.2016 and petitioner on 17.11.2016 and 24.12.2016 was asked to submit his objection. In paragraph 13 of the writ petition, it has been stated that thereafter the petitioner submitted his detailed objection and after consideration of which an order was passed as final assessment dispensing with the objection of the petitioner. Thereafter, in paragraph 14, it has been stated that since the provisional assessment order was never served upon the petitioner and there was a breach of statutory provision, the petitioner approached this Court by way of filing a writ petition bearing Writ C No. 10187 of 2018 wherein this Court by order dated 10.04.2018 has been observed that the learned counsel for the respondent has produced the record which shows that the provisional assessment was served upon the petitioner. However, the petitioner was granted an opportunity to file his objection against the provisional assessment within next 15 days and the delay in filing the objection was treated to have been condoned by this Court. For ready reference, order dated 10.04.2018 passed in Writ C No. 10187 of 2018 is quoted here in below:
"Heard Shri Ramesh Upadhyaya, learned counsel for the petitioner and Shri Baleshwar Chaturvedi, learned counsel for the respondents.
Learned counsel for the respondents has produced the record today which shows that the provisional assessment was served upon the petitioner. A copy of the provisional assessment has been handed over to the learned counsel for the petitioner today itself.
It is open to the petitioner to file his objection against the provisional assessment within next 15 days. The delay, if any, in filing the objection is treated to have been condoned by this Court.
In case, the petitioner files an objection within next 15 days, no coercive action may be taken against the petitioner for the next 15 days i.e. upto 25.04.2018.
With the aforesaid direction, the writ petition stands disposed of."
In pursuance of the aforesaid order passed by this Court, the petitioner was a issued notice dated 05.05.2018 giving an opportunity of personal hearing to the petitioner fixing 21.05.2018 at 5 PM, however, according to the impugned order, neither the petitioner nor his representative appeared before the concerned authority for disposal of his objection. Consequently, the Executive Engineer by impugned order dated 22.06.2018 after considering the objection of the petitioner dated 25.04.2018 passed the final order dated 22.06.2018. The petitioner being aggrieved with the said final order dated 22.06.2018 has filed the present writ petition.
At the very outset, Mr. Baleshwar Chaturvedi, learned counsel appearing on behalf of the electricity department has stated that the impugned order has been passed under Section 126 of the Act after considering the objection of the petitioner. It was further stated that each and every point raised by the petitioner in his objection filed against the provisional assessment order has been taken into consideration by the respondent no. 2 while passing the impugned order. He further stated that the petitioner has an alternative and efficacious statutory remedy by way of an appeal under Section 127 of the Act for redressal of his grievance.
Per contra, learned counsel for the petitioners has stated that the availability of alternative remedy is not an absolute bar and the present writ petition can be entertained by this Court. In support of his contention, he placed reliance upon the decision of this Court in the case of Ashok Kumar and others versus State of U.P. and others, 2008(6) ADJ 660 (DB).
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Heard learned counsel for the parties and perused the record.
Admittedly, the petitioner has an alternative statutory remedy of appeal under Section 127 of the Act. The grounds taken by the petitioners for challenging the order dated 22.06.2018 are mostly factual and can be dealt effectively by the appellate authority under Section 127 of the Act. We are of the opinion that the decision in Ashok Kumar (Supra) cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of the present case and it is not helpful to the case of the petitioner.
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The petitioner may, if so advised, file an appeal under section 127 of the U.P. Electricity Act before the appropriate authority within thirty days from today along with a certified copy of this order and if any such appeal is filed by the petitioner, the concerned authority shall decide the same on merits within one month from the date of filing of the said appeal in accordance with law without reference to the period of limitation, if the appeal is filed within the time as observed herein above.
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With the above observations, the present writ petition stands dismissed on the ground of alternative remedy.
It is made clear that this Court has not expressed any opinion on the merits of the case. The petitioner, if prefers an appeal under Section 127 of the Act before the appellate authority, the appellate authority shall consider the matter on its own merits.
Order Date :- 28.11.2018 MLK/Arun