Hon'ble Alok Mathur,J.
Heard learned counsel for the petitioner, Mr. Rajiv Singh Chauhan, learned counsel representing the U.P. Power Corporation.
Pursuant to the order dated 23.07.2019 Sri R.K. Srivastava, the Executive Engineer is present. He has attempted to justify the impugned order 27.03.2019 and has stated that the report dated 01.03.2019 submitted by the Sub Divisional Officer, Electricity Distribution Sub Division-III Mohammadi Kheri was furnished to the petitioner. However, on an analysis of the relevant material the impugned order for final assessment has been passed.
The notice containing the provisional assessment dated 30.01.2019 was issued by the respondents requiring the petitioner to file his objection/reply/explanation to the same for the purposes of making final assessment order. The petitioner submitted his reply to the same, however in his reply it was stated by the petitioner that the inspection report on the basis of which provisional assessment notice has been issued has not been provided to him. Further submission made by the petitioner is that even the report submitted by the Sub Divisional Officer which has been relied upon by the Executive Engineer while passing the impugned order 27.03.2019 was not provided to him. The Executive Engineer, present today has stated that in fact the activities where the petitioner was found using electricity unlawfully was even video recorded and a Compact Disk was also prepared.
When we examine the order dated 27.03.2019, what, we find is that the reply submitted by the petitioner has not been considered at all and the finding recorded therein is based on the report submitted by the Sub Divisional Officer dated 01.03.2019. The impugned order also does not make any mention about the alleged unlawful use of electricity by the petitioner which is said to have been video recorded. The order also cannot be said to contain reason as it does not weigh the material available on record as also the reply submitted by the petitioner.
In these circumstances, the order dated 27.03.2019 cannot be permitted to be sustained. The petition is thus allowed and the order dated 27.03.2019 passed by the Executive Engineer concerned is hereby quashed.
The Executive Engineer, however is directed to provide every material available on the record which might have been collected either pre or post issuance of the provisional assessment notice dated 30.01.2019 including Compact Disks. The entire material shall be thus provided by the Executive Engineer to the petitioner within ten days from today. The petitioner shall thereafter be entitled to furnish his reply within next two weeks'.
Once the petitioner submits its reply in the time being stipulated herein, the matter shall be considered by the Executive Engineer afresh who shall pass the fresh final assessment order by taking into consideration the material which is available on the record of the department has also the reply which may be submitted by the petitioner. While passing the order, the Executive Engineer shall record his reasons for arriving at his conclusions.
In our order dated 23 July 2019, we had provided that the recovery proceedings against the petitioner shall remain stayed, provided the petitioner to deposits a sum of Rs.75,000/- to the Executive Engineer within a months from 23 July 2019. Thus the said direction contained in the order dated 23 July 2019 shall remains intact which shall be followed by the parties.
The deposit to be made by the petitioner under the order dated 23 July 2019, shall however, abide by the fresh decision which will be taken by the Executive Engineer under this order adhearing to the procedure as prescribed herein above.
We also direct that till decision is taken afresh in respect of final assessment, recovery proceedings against the petitioner shall not be proceeded with.
Order Date :- 30.7.2019 A.K. Singh