Court No. - 21
Case :- WRIT - C No. - 7879 of 2018 Petitioner :- Shahnazar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rahul Mishra Counsel for Respondent :- C.S.C.,Anadi Krishna Narayana,Awadhesh Kumar Saxena
Hon'ble Krishna Murari,J. Hon'ble Ajay Bhanot,J.
Heard Sri Rahul Mishra, learned counsel for the petitioner, Shri Awadesh Kumar Saxena, learned counsel for the respondent no. 2 and Ms.Monika Vaish, learned counsel for respondent no. 3 and learned Standing Counsel for respondents no. 1, 4 and 5.
Petitioner a farmer and a consumer of electricity for running a tube well with sanctioned load of 10 HP. has challenged the provisional assessment order as well as final assessment bill on the ground that use of electrical energy for running a 'kolhu' from sanctioned load of tube well is permissible and does not fall within the definition of theft of electrical energy and thus, the final assessment made is illegal and without jurisdiction.
Facts giving rise to the dispute are that after raid conducted by the respondent, first information report dated 3.11.2015 was lodged against the petitioner under Section 135 of the Indian Electricity Act (hereinafter referred to as 'Act') on the ground that he was running a sugarcane 'kolhu' of 10 HP. through LT line which was a commercial activity though he had a connection for running a tube well for agricultural purposes.
Provisional assessment bill dated 3.12.2015 was issued to the petitioner showing the outstanding of Rs.25,073/- as electricity dues and a sum of Rs.1,60,000/- as penalty. Petitioner filed objection on 16.12.2015.
Learned counsel for the petitioner contends that without giving any notice or opportunity of hearing as provided under Section 126(3) of the Act and without taking into consideration the objection filed by the petitioner, a final assessment bill (Annexure- 6 to the writ petition) has been issued confirming the demand of Rs.25,073/- towards charges of consumption of electrical energy and a sum of Rs.1,60,000/- towards penalty. It is also pointed out that thereafter recovery certificate has been forwarded to the District authorities to recover the amount as arrear of land revenue. Referring to Annexure-7 to the writ petition, which is a letter dated 11.11.2005 issued by the Managing Director of Paschimanchal Vidyut Vitran Nigam Ltd. authorising the farmers to use the sanctioned load for running 'kutti machine' and 'kolhu', it is submitted that this exemption has been granted since the same amounts to ancillary use of the electricity for agricultural purposes.
Learned counsel for respondents no. 2 and 3 do not dispute the veracity of the letter dated 11.11.2005.
We have considered the arguments advanced by the learned counsel for the parties and perused the record.
From perusal of the first information report as well as provisional assessment order and final assessment bill, we find that there is no allegation against the petitioner that he was using sanctioned load for crushing the sugarcane or was using more than the sanctioned load for crushing sugarcane or had given the electrical energy on hire to be used by some other farmers or for any commercial purposes. There is absolutely no material on record to indicate that the petitioner was using the electrical energy over and above sanctioned load and was not using it for his personal purpose.
We are aware of the fact that petitioner has right to file an appeal under Section 127 of the Electricity Act but since the impugned order, final assessment order and recovery proceedings are directly in teeth of the letter issued by the respondent-Nigam providing that farmer having sanctioned load for running a tube well can very well use the same for running 'kutti machine' and 'kolhu' for his own personal purposes, the assessment made against the petitioner being patently without jurisdiction, we do not find it necessary to relegate the petitioner back to avail the alternative remedy.
From the aforesaid facts and reasons, we are of the considered view that the action taken against the petitioner in making provisional and thereafter final assessment and initiating recovery proceedings are illegal and contrary to the policy dated 11.11.2005 issued by the Paschimanchal Vidyut Vitran Nigam Ltd.
There being a policy of the respondent corporation authorizing the farmers to use the electrical energy for ancillary use within the permissible sanctioned load, the impugned final assessment and recovery proceedings are not liable to be sustained.
The view taken by us finds support from the judgement rendered in Writ-C No. 33773 of 2013.
As a consequence, writ petition stands allowed. The impugned (undated) assessment order (Annexure-4 to the writ petition) as well as recovery certificate dated 16.08.2017 are hereby quashed. Writ petition accordingly stands allowed.
However, in the facts and circumstances, we do not make any order as to costs.
Order Date :- 28.2.2018 Ashish Tripathi