Court No. - 4
Case :- WRIT - C No. - 50322 of 2017 Petitioner :- Shivnath Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Purushottam Upadhyay,Atul Kumar Singh Counsel for Respondent :- C.S.C.,Mahboob Ahmad
Hon'ble Bala Krishna Narayana,J. Hon'ble Prakash Padia,J.
Per: Hon’ble Prakash Padia J.
1. Heard Sri Purushottam Upadhyay, learned counsel for the petitioner, learned Standing Counsel accepted for respondent Nos.1, 3 and 4 and Sri Mahboob Ahmad for respondent No.2.
2. The petitioner has preferred the present writ petition with the prayer to issue a writ in the nature of certiorari quashing the recovery citation amounting Rs.1,46,803/- plus other charges issued by respondent No.4- Tehsildar, Sakaldeeha, District Chandauli.
3. Facts in brief as contained in the writ petition are that the petitioner had taken a electricity connection in the year 2013. It is stated that the petitioner is making payment of electricity dues regularly without any break. It is further contended that since the meter of the petitioner was not functioning in proper manner, he made an application on 19.11.2017before respondent No.2/Executive Engineer,Vidut Vitran Khand-II U.P. Power Corporation Ltd. Mugal Sarai District Chandauli. On 03.02.2016, a checking team reached at the house of the petitioner and inspected the electricity connection and thereafter lodged a F.I.R. against him for theft of electricity. Thereafter, the petitioner deposited Compounding Fee ('keu 'kqYd) Rs.1,20,000/- before the respondent No.2 in terms of the provisions of Section 152(3) of the Indian Electricity Act, 2003.
4. The petitioner submitted an application on 6.5.2017 before respondent No.2 for making amendment in the bill stating that the bill is highly inflated. It is further contended that the petitioner has also deposited arrears of amended bill amounting Rs. 49,500/- up to 30.04.2017. It is contended that although the petitoner has deposited entire arrears up to 30.04.2017 but the respondent No.2 without assigning any reason, forwarded the matter for recovery before the Collector to recover the amount allegedly payble by the petitioner as arrears of land revenue. Subsequently, the Tahsildar Sakadeeha/respondent No.4 issued a recover citation against the petitioner for a sum of Rs.1,46,803/-, copy of which is appended as Annexure No.1 to the writ petition. Challenging the validity of the aforesaid citation issued by the respondent No.4, the petitioner preferred the present writ petition.
5. It is contended by Sri Purushottam Upadhyay, learned counsel for the petitioner that recovery ciation issued by respondent No.4 against the petitioner is totally illegal, unwarranted and not sustainable in the eye of law. It is further contended that the petitioner is regularly depositing the electricity charges and there is no dues against the petitioner.
6. On the other hand, Mr. Mahboob Ahmad, learned counsel for the respondent No.2 submitted that the petitioner has an effective alternative staturoty remedy as provided under Part XII of the Electricity Act, 2003. It is further contended that it is provided in Section 126 of the Electricity Act, 2003 that if on an inspection of any place or premises, the Assessing Officer comes to the conclusion that any such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person. It is further provided under Sub-Section 3 of Section 126 of the Act, 2003 that the person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer. Section 126 of the Electricity Act, 2003 is quoted below:-
Section 126: (Assessment): --- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to [twice] the tariff rates applicable for the relevant category of services specified in sub-section (5).
Explanation.- For the purposes of this section,-
(a) “assessing officer” means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b) “unauthorised use of electricity” means the usage of electricity –
(i) by any artificial means; or
(ii) by a means not authorized by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorized.”
7. We have heard learned counsel for the parties and perused the record. With the consent of learned counsel for the parties, this writ petition is disposed of finally at the admission stage itself.
8. From perusal of the record, we find that the petitioner has a statutory alternative remedy available under Section 126(3) to file an objection against the provisional assessment done by the respondent No.2 in the matter.
9. In view of the same, we dispose of the writ petition permitting the petitioner to submit his objections ventilating all his grievances against the provisional assessment along with certified copy of this order before respondent No.2 within a period of three weeks’ from today. If such an objection is made, respondent No.2 is directed to decide the same and pass a reasoned and speaking order specially in the light of the provisions of Section 126 of the Electricity Act, 2003 expeditiously and preferably within a period of two months thereafter.
10. Till the time, the decision is taken on the objections submitted by petitioner, coercive action will not be taken against him.
11. With the aforesaid observations, the writ petition is finally disposed of. No order as to costs.
Order Date :- 26.7.2019 saqlain