JUDGMENT By the Court.—Heard Sri Ranjit Saxena and Sri Vishal Dixit, learned counsels appearing for the petitioner and Sri B.P. Singh Dhakrey and Sri H.P. Dubey learned counsel appearing for the respondents. 2. By this writ petition, the petitioner has prayed for quashing the order dated 10th June, 2009 issued by the Executive Engineer, Dakshinanchal Vidyut Vitran Nigam Limited and the citation dated 29th June, 2009 issued by the Tahsildar, Kol, Aligarh. 3. Brief facts of the case, as emerge from the pleadings of the parties, are; the petitioner, which is a registered company, has been sanctioned load of 1500 KVA by the respondents. A checking was conducted by the respondents of the premises of the petitioner on 14th June, 2006. A first information report was also lodged against the petitioner. The assessment bill alleging theft of electricity was issued on 13th July, 2006 for an amount of Rs. 84,33,146/-. Against the aforesaid assessment order a writ petition being Writ Petition No. 38611 of 2006 was filed by the petitioner which was disposed of by a Division Bench of this Court on 3rd August, 2006 directing the petitioner to file an appeal and to deposit an amount of Rs. 10,00,000/- along with the appeal as provided under the Electricity Act, 2003 within a period of three weeks and the appellate authority was directed to decide the appeal within a period of six weeks thereafter. It was further provided that till the decision of the appeal, there would be no realization against the petitioner. Against the order dated 3rd August, 2006 the petitioner filed a Special Leave to Appeal (Civil) No. 13533 of 2006, which was dismissed on 25th August, 2006, however, time to deposit Rs. 10,00,000/- was extended by one week. The petitioner thereafter deposited an amount of Rs. 10,00,000/- on 31st August, 2006 and submitted an appeal, which has been registered as Statutory Complaint No. 46 of 2007 under Section 127 of the Electricity Act, 2003. The appeal was admitted on 16th June, 2008 and is said to be still pending before the Commissioner, Agra Division, Agra. The Corporation also filed Special Leave to Appeal (Civil) No. 15484 of 2006 in the Supreme Court against the Division Bench judgment of this Court dated 3rd August, 2007 in which the Apex Court on 25th September, 2006 issued notice and granted four week’s time to file reply. The Corporation also filed Special Leave to Appeal (Civil) No. 15484 of 2006 in the Supreme Court against the Division Bench judgment of this Court dated 3rd August, 2007 in which the Apex Court on 25th September, 2006 issued notice and granted four week’s time to file reply. The said special leave to appeal (Civil) is pending before the Apex Court. On 27th November, 2006 the respondents imposed penalty of Rs. 68,31,808.00 as “peak hour penalty” for the period 24th November, 2002 to 8th February, 2003. The petitioner against the peak hour penalty order submitted a complaint being Complaint No. 822 of 2007 before the U.P. Electricity Regulatory Commissioner, Lucknow (hereinafter referred to as UPERC). The UPERC passed an order on 27th January, 2007 directing that on deposit of Rs. 5,00,000/- electricity shall be restored within 24 hours. It was further directed that petitioner shall deposit an amount of Rs. 10,00,000/- within fifteen days. The petitioner, aggrieved by the order of UPERC, filed a First Appeal From Order being FAFO No. 91 of 2007. The said FAFO was heard by the Division Bench of this Court and the Division Bench by order dated 2nd February, 2007 disposed of the FAFO granting six weeks further time to the petitioner to deposit the amount of Rs. 10,00,000/- as directed by the UPERC. The petitioner did not deposit the amount of Rs. 10,00,000/- within the time allowed by the Court. The respondents filed Special Leave to Appeal No. 4594 of 2007 in which the Apex Court on 14th December, 2007 granted leave. 4. The petitioner again approached the UPERC which on 5th April, 2007 directed the petitioner to deposit the consumption bill and Rs. 10,00,000/- for restoration of supply. A writ petition being Writ Petition No. 2376 (MB) of 2007 was filed by the petitioner seeking a direction to the respondents to comply with the order dated 5th April, 2007 of the UPERC. The writ petition was taken up by the Division Bench on 16th April, 2007 and the case was directed to be taken up after two weeks. The UPERC again passed an order on 17th April, 2007 directing the respondents to restore the supply within 24 hours on payment of consumption bill and Rs. 10,00,000/-. The writ petition was taken up by the Division Bench on 16th April, 2007 and the case was directed to be taken up after two weeks. The UPERC again passed an order on 17th April, 2007 directing the respondents to restore the supply within 24 hours on payment of consumption bill and Rs. 10,00,000/-. A contempt petition being Contempt Petition No. 1262 of 2007 was filed by the Corporation alleging contempt while passing the order dated 17th April, 2007 by the UPERC. The petitioner’s electricity connection was again disconnected on 21st January, 2008. The petitioner thereafter moved an application before the UPERC to direct the Corporation to restore the connection and not to charge fixed demand charge amounting to Rs. 16,20,000/- for the period January 2008 to June, 2008 from the petitioner. The petitioner filed another writ petition at the Lucknow Bench of this Court being Writ Petition No. 3393 (MS) of 2008 praying for following relief : “(i) Issue writ, order or direction in the nature of mandamus commanding the respondent/opposite party No. 4 for early disposal of statutory petition No. R-822 of 2007 filed by the petitioners at the earliest. (ii) Issue writ, order or direction in the nature of mandamus commanding the respondents/opposite parties to restore the electricity supply of the petitioners after accepting Rs. 16,20,000/- as fixed demand charge from January 2008 to June, 2008 in two quarterly instalments and after accepting first instalment, the electricity connection of the petitioner be restored. (iii) Issue writ, order or direction in the nature of mandamus commanding the respondent/opposite party No. 4 to decide the interim relief application of the petitioners dated 6.7.2008 at the earliest. (iv) Issue any other relief which this Hon’ble Court may deem fit and proper in the circumstances of the case. (v) Allow the petition with cost.” 5. The aforesaid writ petition was disposed of by the learned Single Judge vide its order dated 16th July, 2008 directing that if the petitioner deposits half of the amount as fixed demand charge for the month of January, 2008 to June, 2008, the opposite parties shall restore the electricity connection forthwith. Against the order dated 16th July, 2008 the Corporation filed a special appeal being Special Appeal No. 478 of 2008. Against the order dated 16th July, 2008 the Corporation filed a special appeal being Special Appeal No. 478 of 2008. In the said special appeal the Division Bench passed two orders, first on 18th November, 2008 directing the Managing Director of the petitioner’s company to appear in person and to explain as to why proceeding for launching criminal prosecution for committing pergury and for committing contempt of the Court be not drawn against him. On 19th November, 2008 the Managing Director appeared before the Court. The Division Bench on the said date, after noticing the submissions of the parties, directed both the parties to file affidavits explaining the correct position as to what cause of action had accrued to the respondents to file subsequent writ petition and what was the notice which was issued/served by the appellants, which gave the cause of action to approach the Court. It has been stated that in pursuance to the order dated 19th November, 2008 although Corporation has filed its affidavit but no affidavit has been filed by the petitioner although 230 days have elapsed. The Corporation issued notice dated 21st May, 2009 to the petitioner under the Uttar Pradesh Government Electrical Undertaking (Dues Recovery) Act, 1958 for an amount of Rs. 2,63,60,300/-, which notice was sent by the registered post. The recovery certificate was issued by the Executive Engineer on 25th June, 2009 for the aforesaid amount to the Collector, Aligarh and thereafter a consequential citation has been issued by the Tahsildar, Kol, Aligarh on 29th June, 2009 directing the petitioner to appear on 12th July, 2009 and pay the amount of Rs. 2,63,60,300/-. This writ petition has been filed by the petitioner for quashing the order dated 10th June, 2009 and the citation dated 29th June, 2009. 6. Sri Ranjit Saxena, learned counsel for the petitioner in support of the writ petition, raised following submissions : (i) The recovery proceedings have been initiated in pursuance of the order dated 10th June, 2009 of the Executive Engineer, which refers to the order of this Court dated 19th November, 2008 in Special Appeal No. 478 of 2008 (U.P. Power Corporation Limited and others v. Rajesh Paliwal and others) as the basis for initiating the proceedings of recovery of Rs. 2,63,60,300/- whereas the Division Bench vide its order dated 19th November, 2008 never directed for initiating any recovery, hence the entire proceeding is without any basis. (ii) The amount for which recovery has been initiated includes the amount of Rs. 84,33,146/-, which was an amount demanded for alleged theft assessment on the basis of the checking dated 14th June, 2006 against which assessment the petitioner had filed Writ Petition No. 38611 of 2006 in this Court, which was disposed of by the Division Bench on 3rd August, 2006 permitting the petitioner to deposit an amount of Rs. 10,00,000/- along with the appeal before the appellate authority, which was directed to be decided within six weeks and further it was directed that till the decision of the appeal there shall be no realisation against the petitioner. It is submitted that petitioner filed Special Leave to Appeal (Civil) No. 13533 of 2006 against the said order, which appeal was dismissed but one week time was allowed to the petitioner to deposit the amount and the amount was deposited on 31st August, 2006 and the petitioner filed an appeal before the appellate authority, i.e., the Divisional Commissioner. The said appeal was admitted on 16th June, 2008 and is being contested by the Corporation. It is submitted that the Corporation is contesting the appeal and several dates have been fixed in the appellate authority, last being fixed as 28th July, 2009. He submits that there is no authority or justification with the Corporation to proceed with the recovery of the aforesaid amount. (iii) With regard to peak hour penalty, which was imposed by order dated 27th November, 2007 for an amount of Rs. 68,31,808.00 the petitioner has filed statutory complaint before the UPERC being Complaint No. 822 of 2007 in which an order was passed on 27th January, 2007 directing restoration of supply of electricity on deposit of Rs. 5,00,000/- and further direction was issued for depositing Rs. 10,00,000/- within fifteen days against which order FAFO No. 91 of 2007 was filed in which six weeks further time was allowed for depositing Rs. 10,00,000/-. Thereafter UPERC passed an order on 5th April, 2007 permitting the petitioner to deposit the consumption bill as well as Rs. 10,00,000/-. Again on 17th April, 2007 the UPERC directed for restoration of electricity within 24 hours after payment of consumption bill and Rs. 10,00,000/-. 10,00,000/-. Thereafter UPERC passed an order on 5th April, 2007 permitting the petitioner to deposit the consumption bill as well as Rs. 10,00,000/-. Again on 17th April, 2007 the UPERC directed for restoration of electricity within 24 hours after payment of consumption bill and Rs. 10,00,000/-. It is submitted that the said statutory complaint is pending before the UPERC and there being stay of recovery of balance amount by the UPERC, it is not open for the respondents to proceed with recovery of the peak hour penalty charges and the impugned recovery, which includes peak hour penalty charges is thus wholly without jurisdiction. It is further submitted that peak hour penalty was imposed for the first time vide order dated 27th November, 2007, which penalty was for the period 24.11.2002 to 8.2.2003, i.e., after the period of two years and the same was impermissible by virtue of provisions of Paragraph 6.15 of the U.P. Electricity Supply Code, 2005. The consequent recovery is, therefore, impermissible by virtue of provisions of Paragraph 6.15 of the U.P. Electricity Supply Code, 2005. (iv) The notice dated 10th June, 2009 has been issued to the petitioner directing him to deposit an amount of Rs. 2,63,60,300/- within seven days failing which recovery was to take place under Section 5 of the Uttar Pradesh Government Electrical Undertaking (Dues Recovery) Act, 1958. It is submitted that without waiting for 30 days, the recovery certificate was sent to the Collector. The submission is that after giving notice recovery certificate cannot be sent within 30 days, hence the entire proceeding has been held in violation of Section 5 of the Uttar Pradesh Government Electrical Undertaking (Dues Recovery) Act, 1958. (v) Lastly it has been contended that when the judgment in this case was reserved on 21st July, 2009 by the Court after hearing both the parties, the respondents proceeded with the recovery proceeding and on 27th July, 2009 proceedings were initiated for sale of moveable properties of the petitioner including machines etc. and an amount of Rs. 13,27,500/- was got deposited on 27th July, 2009 as 1/4th amount towards the sale of moveable properties. It is submitted that after the judgment having been reserved on 21st July, 2009, the respondents ought to have waited for delivery of judgment before proceeding to recover the amount, which was under challenge in this writ petition. 7. 13,27,500/- was got deposited on 27th July, 2009 as 1/4th amount towards the sale of moveable properties. It is submitted that after the judgment having been reserved on 21st July, 2009, the respondents ought to have waited for delivery of judgment before proceeding to recover the amount, which was under challenge in this writ petition. 7. Sri B.P. Singh Dhakrey, learned counsel appearing for the Corporation, refuting the submissions of learned counsel for the petitioner, raised following submissions : (i) The petitioner has filed two writ petitions at Lucknow Bench of this Court being Writ Petition No. 2376 (MB) of 2007, which is still pending and Writ Petition No. 3393 (MS) of 2008, which was disposed of by the learned Single Judge of the Lucknow Bench of this Court on 16th July, 2008 against which Special Appeal No. 478 of 2008 has been filed by the Corporation and the Division Bench of this Court on 19th November, 2008 directed the parties to file their affidavits explaining the correct position as to what cause of action had accrued to the petitioner to file second writ petition and what was the notice issued by the Corporation which gave the cause of action to approach the Court. It is contended that petitioner instead of filing affidavit as directed by the Division Bench, has rushed to this Court by filing this writ petition. It is contended by Sri Dhakrey that issues, which are sought to be raised in this writ petition are the issues, which are involved in Writ Petition No. 2376 (MB) of 2007 and before the Division Bench of the Lucknow Bench in Special Appeal No. 478 of 2008, hence the petitioner is not entitled to file this writ petition, which is not entertainable and is liable to be rejected on this ground alone. (ii) The theft assessment dated 13th July, 2006 for an amount of Rs. 84,33,146 was challenged in this Court by a writ petition, which was disposed of on 3rd August, 2007 against which order the Corporation has already filed Special Leave to Appeal (Civil) No. 15484 of 2006 in which notices have been issued and reply has been asked for but the petitioner has not submitted any reply before the Supreme Court. 84,33,146 was challenged in this Court by a writ petition, which was disposed of on 3rd August, 2007 against which order the Corporation has already filed Special Leave to Appeal (Civil) No. 15484 of 2006 in which notices have been issued and reply has been asked for but the petitioner has not submitted any reply before the Supreme Court. It is further contended that the appeal, which was submitted by the petitioner before the Executive Engineer has been rejected by order of the Executive Engineer dated 28th October, 2006, copy of which has been filed as Annexure-25 to the writ petition. It is contended that in any view of the matter, the appeal filed by the petitioner before the Divisional Commissioner is not maintainable. It is contended that assessment in the present case has been made in accordance with Paragraph 8.1 of the U.P. Electricity Supply Code, 2005 as the assessment was in a theft case and the assessment in the present case cannot be termed to be an assessment within the meaning of Section 126 of the Electricity Act, 2003, hence the appeal before the Divisional Commissioner under Section 127 of the Electricity Act, 2003 was not maintainable. (iii) The UPERC, which has entertained the Complaint No. 822 of 2007 and passed orders dated 27th January, 2007, 5th April, 2007 and 17th April, 2007, committed jurisdictional error in granting relief to the petitioner. It is submitted that individual grievances cannot be entertained by the UPERC and all the aforesaid orders are without jurisdiction. It is submitted that against the order dated 27th January, 2007 passed by the UPERC, the petitioner filed first appeal from order, which was disposed of on 2nd February, 2007 against which order the Corporation has already filed Special Leave to Appeal (Civil) No. 4594 of 2007 in which notices were issued and subsequently leave has been granted on 14th December, 2007. Relying upon the judgment of the Apex Court in the case of Maharashtra Electricity Regulatory Commissioner v. Reliance Energy Ltd. and others, (2007)8 SCC 381 , it has been contended that the orders passed by the UPERC are without jurisdiction and the Corporation has rightly initiated the proceedings for recovery of the aforesaid amount. Relying upon the judgment of the Apex Court in the case of Maharashtra Electricity Regulatory Commissioner v. Reliance Energy Ltd. and others, (2007)8 SCC 381 , it has been contended that the orders passed by the UPERC are without jurisdiction and the Corporation has rightly initiated the proceedings for recovery of the aforesaid amount. (iv) The notice under Section 5 of the 1958 Act was issued on 21st May, 2009 by registered post, copy of which was pasted, in pursuance of the order dated 22nd May, 2009 issued by the Executive Engineer, on the premises of the petitioner, the premises being closed. He submits that the recovery certificate was issued after expiry of 30 days on 25th June, 2009. Copy of the notice dated 21st May, 2009 containing the endorsement of pasting of notice dated 22nd May, 2009 and the recovery certificate dated 25th June, 2009 have been filed as Annexure-1 and 2 to the short counter affidavit. (v) It is further submitted that no moveable property of the petitioner has been removed on 27th July, 2009 although the premises have already been attached. He submits that huge public money, recovery of which is blocked, deserves to be realised in the public interest. 8. We have considered the submissions of learned counsel for the parties and have perused the record. 9. The first submission of learned counsel for the petitioner is that the entire proceedings initiated by order of the Executive Engineer dated 10th June, 2009 and the consequential citation being based on the order dated 19th November, 2008 passed in Special Appeal No. 478 of 2008, are misconceived since the Division Bench on 19th November, 2008 never directed initiation of any recovery against the petitioner. Copy of the order dated 19th November, 2008 passed by the Division Bench has been brought on the record as Annexure CA-4 to the short counter affidavit. The order dated 19th November, 2008 is quoted as below : “Heard Sri B.P.S. Dhakray assisted by Sri Manoj Kumar Gupta, learned counsel for the appellants and Sri Vishal Dixit for the respondents. During the course of arguments, Sri B.P.S. Dhakray submitted that in view of the notice dated 27.1.2008 issued for the amount of Rs. 1,22,17,319/- which included the arrears of Rs. 84 lacs towards a theft case on 14.6.2006 and the balance amount of Rs. During the course of arguments, Sri B.P.S. Dhakray submitted that in view of the notice dated 27.1.2008 issued for the amount of Rs. 1,22,17,319/- which included the arrears of Rs. 84 lacs towards a theft case on 14.6.2006 and the balance amount of Rs. 68.32 lacs and whereas Sri Vishal Dixit relying upon the notice dated 15.2.2008 which he filed in the writ petition says that the writ petition was filed because a notice was issued for demand of balance of Rs. 68.32 lacs and also because of the reason that after disconnection the liability of the respondents towards fixed charges was being increased. Let both the parties file an affidavit explaining the correct position as to what cause of action had accrued to the respondents to file subsequent writ petition and what was the notice which was issued/served by the appellants which gave the cause of action to approach the Court. In case any stay orders have been passed and/or are in force till date with respect to the amount in recovery by the Corporation against the respondents, the same shall also be brought on record by filing copy of the same before this Court. Two weeks’ time is allowed to both the parties to file affidavit. List on 10.12.2008. Personal appearance of the respondent is exempted in future.” 10. A perusal of the order dated 19th November, 2008 indicates that the Court directed both the parties to file affidavit explaining the correct position as to what cause of action had accrued to the respondent to file subsequent writ petition and what was the notice, which was served by the appellants. The Court further directed that in case any stay order was passed and/or in force till date with respect to the amount in recovery by the Corporation against the respondent, the same shall also be brought on the record by filing copy of the same before the Court. The said order further indicates that what Court required was the detail of dues against the petitioner and as to whether there are any interim order in force till date. The submission of counsel for the petitioner is correct that the Court did not direct for affecting any recovery against the petitioner by order dated 19th November, 2008. The said order further indicates that what Court required was the detail of dues against the petitioner and as to whether there are any interim order in force till date. The submission of counsel for the petitioner is correct that the Court did not direct for affecting any recovery against the petitioner by order dated 19th November, 2008. From the notice dated 10th June, 2009 (Annexure-21 to the writ petition), which has been challenged in the writ petition, it is clear that the Executive Engineer in the notice stated that in view of the order dated 19th November, 2008 passed by the High Court and the affidavit dated 22nd January, 2009 submitted in consequent thereto, the liability against the petitioner up to December, 2008 is Rs. 2,63,60,300/-. The notice does not specifically mention that notice is being issued in pursuance of the direction dated 19th November, 2008. As observed above, the Court on 19th November, 2008 did not direct for affecting recovery specifically in view of the fact that the Court itself has directed that parties may bring on record as to whether any stay order is in force on the date regarding the dues. The Court thus had not on 19th November, 2008 examined or decided the issues. The issue which further arises is as to whether even without the order dated 19th November, 2008 the Corporation could have proceed with the recovery as has been impugned in the writ petition. We are of the view that the issue which is to be examined is as to whether the Corporation could have proceeded with recovery in accordance with law even without reference of the order dated 19th November, 2008. Thus the issue to be considered and answered hereinafter is as to whether the Corporation could have legally proceeded to recover the amount as has been done by the impugned action. 11. Thus the issue to be considered and answered hereinafter is as to whether the Corporation could have legally proceeded to recover the amount as has been done by the impugned action. 11. The submission which has been much pressed by Sri Dhakrey, learned counsel for the Corporation is that two writ petitions being Writ Petition No. 2376 (MB) of 2007 as well as Writ Petition No. 3393 (MS) of 2008 against which Special Appeal No. 478 of 2008 has been filed being pending at the Lucknow Bench of this Court, this writ petition which has been filed on the same cause of action cannot be entertained and is in fact second writ petition, which deserves to be dismissed as in accordance with the provisions of Chapter XXII, Rule 7 of the Rules of the Court second application on the same facts is barred. Before appreciating the above submission, it is necessary to note the facts in detail with regard to aforesaid two writ petitions and the relief prayed for in the said writ petitions. 12. Writ Petition No. 2376 (MB) of 2007 was filed by the petitioner in the Lucknow Bench of this Court praying for a direction to the Corporation to comply with the order dated 5th April, 2007 passed by the UPERC. As noticed above a Complaint No. 822 of 2007 was filed by the petitioner before the UPERC challenging imposition of peak hour penalty and challenging the assessment dated 21st November, 2006. On the said statutory complaint initially the UPERC passed an order on 27th January, 2007 for re-connection within 24 hours on payment of Rs. 5,00,000/- and further payment of Rs. 10,00,000/- within two weeks. The petitioner deposited Rs. 5,00,000/- but could not deposit 10,00,000/- within time. Another interim relief application was filed before the UPERC praying for early hearing of the petition stating that the electricity supply has again been disconnected since Rs. 10,00,000/- was not deposited. A prayer was also made for granting instalment for payment of the balance amount of Rs. 10,00,000/-. The UPERC passed an order on 5th April, 2007 directing the petitioner to deposit the current consumption bill as well as Rs. 10,00,000/- for restoration of supply. Writ Petition No. 2376(MB) of 2007 was filed for a direction to the Corporation to comply with the order of UPERC and further for disposal of the statutory complaint by UPERC. 10,00,000/-. The UPERC passed an order on 5th April, 2007 directing the petitioner to deposit the current consumption bill as well as Rs. 10,00,000/- for restoration of supply. Writ Petition No. 2376(MB) of 2007 was filed for a direction to the Corporation to comply with the order of UPERC and further for disposal of the statutory complaint by UPERC. The first writ petition was thus confined to the aforesaid two reliefs and no other issue was involved in the said writ petition. The said writ petition was filed on 13th April, 2007. 13. The second writ petition, i.e., Writ Petition No. 3393 (MS) of 2008 was filed by the petitioner praying for early disposal of Statutory Petition No. 822 of 2007 and further for a mandamus to restore the electricity supply of the petitioner after accepting Rs. 16,20,000/- as fixed demand charge from January, 2008 to June, 2008 in two quarterly instalments and after accepting first instalment the electricity connection of the petitioner be restored. Further a direction to the UPERC was sought to decide the application dated 6th July, 2008 at the earliest. The writ petition, thus, was confined to two main issues, firstly for direction to the UPERC for early disposal of the statutory petition as well as interim application and secondly for restoration of electricity supply after accepting the fixed demand charge from January, 2008 to June, 2008, which was mentioned as Rs. 16,20,000/-. There was no relief in the writ petition challenging the theft assessment on the basis of the checking dated 14th June, 2006 for an amount of Rs. 84,33,146/- or the peak hour penalty imposed on 27th November, 2007 for an amount of Rs. 68,31,808.00. It appears that the said writ petition was filed in July, 2008 and was disposed of immediately. Special Appeal No. 478 of 2008 has been filed by the Corporation against the judgment and order dated 16th July, 2008 by which the writ petition was disposed of permitting the petitioner to deposit half of the amount as fixed demand charge for the month of January, 2008 to June, 2008 within 15 days and the rest 50% within next 15 days. No other issue was either subject matter of relief in the writ petition or was decided by the Court. No other issue was either subject matter of relief in the writ petition or was decided by the Court. It is true that in the special appeal the Court on 19th November, 2008 has directed the parties to file affidavits indicating the details of the liability and dues on the petitioner as well as the fact as to whether any interim order is operating till date. The said order was passed for the purpose and object of the Court to know the total liability against the petitioner and for examining the issue as to whether the petitioner was entitled for the order dated 16th July, 2008 passed by the learned Single Judge since the appeal was being heard against the said order. The theft assessment on the basis of checking dated 14th June, 2006 as well as peak hour penalty dated 27th November, 2007 was not subject matter of issues in Writ Petition No. 3393 (MS) of 2008. The special appellate Court has rightly directed the parties to file affidavit indicating the liabilities to know as to whether the petitioner was entitled for restoration for electricity only on payment of fixed demand charges from January, 2008 to June, 2008 so as to decide the appeal arising out of the writ petition. 14. The present writ petition has been filed by the petitioner challenging the notice dated 10th June, 2009 issued by the Executive Engineer directing the petitioner to pay an amount of Rs. 2,63,60,300/- within seven days and further challenging the citation issued by the Tahsildar in pursuance of the recovery certificate sent by the Executive Engineer. The notice impugned and the citation are for recovery of the amount of theft assessment on the basis of checking report dated 14th June, 2006 for an amount to Rs. 84,33,146/- and peak hour penalty dated 27th November, 2007 for an amount of Rs. 68,31,808.00 plus late payment surcharge total Rs. 2,63,60,300/-. 15. The proceedings have been initiated by the impugned notice and the citation under the U.P. Government Electrical Undertakings (Dues Recovery) Act, 1958 in June, 2009 and could not have been subject matter of issue in the above two writ petitions filed in the Lucknow Bench of this Court being Writ Petition No. 2376 (MB) of 2007 and 3393 (MS) of 2008. The present writ petition is thus filed on a different cause of action and it cannot be said that the same is not maintainable having been filed on the same cause of action on which earlier two writ petitions have been filed. The submission of learned counsel for the Corporation that this writ petition is liable to be dismissed on the ground that it is second writ petition on the same cause of action cannot be accepted. 16. The second submission of counsel for the petitioner is with regard to challenge of recovery proceeding which includes the amount of theft assessment, i.e., Rs. 84,33,146/-. The submission of counsel for the petitioner is that against the said theft assessment the petitioner has filed a writ petition in this Court being Writ Petition No. 38611 of 2006, which was disposed of by this Court on 3rd August, 2006 by passing following order : “...In view of the facts and circumstances of the present case, we dispose of the present writ petition with a direction that if the petitioners deposit a sum of Rs. 10,00,000/- along with the appeal as provided under the Act within a period of three weeks, the appellate authority is directed to decide the appeal of the petitioner within a period of six weeks thereafter. Till the decision of the appeal of the petitioners, there will be no realization against the petitioners. In case of any default of any condition the writ petition shall stand dismissed. With these observation the writ petition is disposed of.” 17. The petitioner also filed Special Leave to Appeal (Civil) No. 13533 of 2006 against the aforesaid order dated 3rd August, 2006, which was dismissed but time for depositing Rs. 10,00,000/- was extended by one week. The order of the Apex Court is as under : “We do not find any ground to interfere in exercise of powers under Article 136 of the Constitution of India. The Special Leave Petition is dismissed. However, time to deposit Rupees ten lakhs, since it is expiring, is extended by one week from today.” 18. Petitioner’s case further is that in pursuance to the above order, the petitioner deposited the amount of Rs. 10,00,000/- on 31st August, 2006 and appeal was filed by the petitioner before the appellate authority, which was admitted and is still pending. However, time to deposit Rupees ten lakhs, since it is expiring, is extended by one week from today.” 18. Petitioner’s case further is that in pursuance to the above order, the petitioner deposited the amount of Rs. 10,00,000/- on 31st August, 2006 and appeal was filed by the petitioner before the appellate authority, which was admitted and is still pending. The appeal filed by the petitioner is addressed as “Before the Appellate Authority Constituted on the Section 127 of the Electricity Act, 2003”. The appeal dated 31st August, 2006 was submitted by the petitioner before the Executive Engineer along with covering letter. Copy of the said appeal along with covering letter has been brought by the respondents, which is at Page 28 of the written submission. The petitioner has brought on the record copy of the order of appellate authority, i.e., Divisional Commissioner by which the appeal was admitted. The said appeal is still pending and the last date fixed in the appeal was 28th July, 2009. Learned counsel for the petitioner submits that appeal having been filed after depositing Rs. 10,00,000/- and the same being pending before the appellate authority, i.e., Divisional Commissioner, by virtue of the order of this Court dated 3rd August, 2006, the balance amount towards theft charges could not have been recovered. 19. Sri Dhakrey in reply to the above submission of the petitioner, has made two submissions. Firstly it has been contended that appeal has been decided by the Executive Engineer vide order dated 28th October, 2006, copy of which has been filed as Annexure-25 to the writ petition and secondly the appeal before the Divisional Commissioner under Section 127 of the Electricity Act, 2003 is not maintainable it having arisen out of theft assessment. It is contended that no appeal is maintainable under Section 127 of the Electricity Act, 2003 in view of the provisions of Paragraph 8.1 of the U.P. Electricity Supply Code, 2005. The submission of the counsel for the Corporation that appeal has been decided on 28th October, 2006 needs to be considered first. Copy of the order dated 28th October, 2008 has been filed as Annexure-25 to the writ petition. The Executive Engineer dismissed the appeal saying that no new points have been submitted against the checking dated 14th June, 2006. The submission of the counsel for the Corporation that appeal has been decided on 28th October, 2006 needs to be considered first. Copy of the order dated 28th October, 2008 has been filed as Annexure-25 to the writ petition. The Executive Engineer dismissed the appeal saying that no new points have been submitted against the checking dated 14th June, 2006. The challenge is that the Executive Engineer not being the appellate authority, had no jurisdiction to decide the appeal. Learned counsel for the petitioner has relied on the notification dated 14th July, 2006 by which the Divisional Commissioner has been notified as the appellate authority under Section 127 of the Electricity Act, 2003. Following is the notification notifying the appellate authority : “NOTIFICATION No. 174/2006-XXIV/P-3-27-P-98 T.C. Lucknow, Dated, 14-7-2006 In exercise of the power under Rule 3 of the Appeal to the Appellate Authority, 2004 framed by the Government of India under sub-section (1) read with clause (U) of sub-section (2) of Section 176 of the Electricity Act, 2003 (Act No. 36 of 2003), the Governor is pleased to designate the officers mentioned in column 2 of the Schedule below as Appellate Authority for the purpose of appeal under Section 127 of the said Act, having pecuniary jurisdiction mentioned against each in column 3 of the said Schedule. Schedule S.No. Appellate Authority Jurisdiction 1. Divisional Commissioner of the Division Any amount or any Additional Commissioner duly authorised by the Commissioner for this purpose. By order, Ashok Kumar Khurana, Principal Secretary.” 20. The appellate authority being the Divisional Commissioner for an appeal under Section 127 of the Electricity Act, 2003, the Executive Engineer who had made the impugned assessment, had no authority to decide the appeal. The order of Executive Engineer dismissing the appeal was wholly without jurisdiction. An order passed by an authority having no jurisdiction, is nullity. The Executive Engineer having no jurisdiction to decide the appeal, the submission of Sri Dhakrey cannot be accepted that the appeal stood decided, moreso when the appeal filed by the petitioner being Statutory Complaint No. 46 of 2006 under Section 127 of the Electricity Act, 2003 has been admitted on 16th June, 2008, and is still pending and last date fixed was 28th July, 2009. 21. 21. The second submission on which much emphasis has been laid by Sri Dhakrey is that in theft cases no appeal is maintainable under Section 127 of the Electricity Act, 2003. He submits that appeal is maintainable under Section 127 only against an assessment which is made under Section 126 of the Electricity Act, 2003. He further submits that U.P. Electricity Supply Code, 2005 provides procedure for assessment. He further submits that two different procedures have been prescribed, one in paragraph 6.8 of the Code and another in Paragraph 8.1 of the Code. He submits that although the assessment which is made in accordance with Paragraph 6.8 appeal lies under Section 127 but no appeal is contemplated for the assessment made under Paragraph 8.1 of the Code in case of theft. 22. Section 126 of the Electricity Act, 2003 provides for assessment. Under Section 127(1) any person aggrieved by the final order made under Section 126 may within 30 days prefer an appeal to the appellate authority as may be prescribed. Sections 126 and 127(1) of the Electricity Act, 2003 are quoted below : “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 unauthorised use of electricity, he shall provisionally assess to the best of his judgment 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. (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 unauthorised 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 the tariff 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 authorised 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 authorised. 127. Appeal to appellate authority.—(1) Any person aggrieved by the final order made under Section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.” 23. Part XIV of the Electricity Act, 2003 deals with ‘Offences and Penalties’. Section 135 defines theft of electricity. Section 135(1) and (1A) are quoted below : “135. Part XIV of the Electricity Act, 2003 deals with ‘Offences and Penalties’. Section 135 defines theft of electricity. Section 135(1) and (1A) are quoted below : “135. Theft of electricity.—(1) Whoever, dishonestly,— (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or (b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or (c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or (d) uses electricity through a tampered meter; or (e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both : Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use— (i) does not exceed 10 Kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity; (ii) exceeds 10 Kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity : Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station : Provided also that if it is provided that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. (1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity : Provided that only such officer of the licensee or supplier, as authorised for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity : Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hour from the time of such disconnect : Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment;” 24. Section 126 provides that if on an inspection of any place it is found that such person is indulging in unauthorised use of electricity he shall be provisionally assessed. The words used in Section 126 are ‘unauthorised use of electricity’. Unauthorised use of electricity has been defined in Explanation (b), as quoted above. The definition of unauthorised use of electricity as given in Explanation (b) is wide enough which covers the usage of electricity by any artificial means or by a means not authorised by the concerned person or authority or licensee or through a tampered meter. The said definition of unauthorised use of electricity as explained in Explanation (b) is comprehensive enough to cover in itself the theft of electricity. The theft of electricity has been more elaborately explained in Section 135 but the theft of electricity as defined in Section 135 is fully covered by the definition ‘unauthorised use of electricity’ and the theft of electricity under Section 135 is also an unauthorised use of electricity for which assessment is contemplated under Section 126. The provisions of Section 135 is under the Chapter ‘Offences and Penalties’, which deals a different subject than the assessment. The provisions of Section 135 is under the Chapter ‘Offences and Penalties’, which deals a different subject than the assessment. A person found indulging in theft is also liable for offences and penalties and can be prosecuted and convicted according to the Act. The scheme of the 2003 Act does not exclude the assessment under Section 126 in theft cases. Our above conclusion is further fortified by Section 135(1A) third proviso, which provides that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of the Act, shall without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply. Thus assessment of electricity charges due to theft of electricity is contemplated under Section 135 itself, which further provides that after deposit of the assessed amount electricity is required to be restored. In case of theft no assessment is to be made under Section 126. Section 135(1A) third proviso would not have been as contained in the Act. The scheme of the 2003 Act thus clearly delineates the object that Legislature contemplated assessment under Section 126 with regard to all categories of unauthorised use of electricity including theft of electricity and the submission of learned counsel for the Corporation that assessment of theft cases is not done under Section 126 hence the appeal cannot be filed under Section 127, does not appeal to us. 25. Learned counsel for the Corporation submits that separate procedure has been provided with regard to assessment in theft cases under Paragraph 8.1 of the 2005 Code but no appeal has been provided to the appellate authority under Paragraph 8.1. The provisions regarding right of appeal is a substantive provision, which has been provided in the Act itself. The right of the appeal given in the Act cannot be taken away by any provision framed in the U.P. Electricity Supply Code, 2005. Moreso, there is no provision in the Code which indicates that there is no right of appeal for the theft assessment made under Paragraph 8.1. There are two decisions of the Division Bench of this Court, first in Writ Petition No. 19574 of 2008 (M/s Radha Krishna Cold Storage v. State of U.P. and others) where also the submission made before us was raised. There are two decisions of the Division Bench of this Court, first in Writ Petition No. 19574 of 2008 (M/s Radha Krishna Cold Storage v. State of U.P. and others) where also the submission made before us was raised. Following observations were made by the Division Bench in the said case : “In reply to the aforesaid, learned counsel for the petitioner submitted firstly, that an appeal does not lie against the order in question as the appeal lies only against the order under Section 126 of the Act and not under Section 135 of the Act. It it settled principle that the order under challenge in the writ petition is the assessment order, which can be passed only under Section 126 of the Act and mere non-mention of the relevant provisions or incorrect mention of the provisions will not vitiate the order. This is the settled legal proposition therefore this contention raised by learned counsel for the petitioner that since the order has been passed under Section 135 of the Act, therefore the remedy under Section 127 of the Act is not available to him deserves to be rejected and is hereby rejected.” 26. The second Division Bench judgment is in the case of Ashok Kumar and others v. State of U.P. and others, 2008(6) ADJ 669. In the said judgment the Division Bench of this Court has held that unauthorised use of electricity as defined in Explanation (b) of Section 126 also covers within its ambit certain acts/omission which constitute an offence under Section 135 of the Act, 2003. Paragraph 58 of the said judgment is quoted below : “58. The term “unauthorized use of electricity” is defined in Explanation (b) to Section 126 which includes usage of electricity (i) by any artificial means; or (b) by a means not authorised 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. Before issuing an assessment notice, therefore, the assessing officer must record its conclusion that the person concerned or any other person benefited has used electricity unauthorizedly in terms as defined in Explanation (b) of Section 126. Before issuing an assessment notice, therefore, the assessing officer must record its conclusion that the person concerned or any other person benefited has used electricity unauthorizedly in terms as defined in Explanation (b) of Section 126. The Act in respect to the stage of recording of conclusion by assessing officer regarding user of electricity by the person unauthorizedly does not provide specifically for any opportunity of hearing to the person concerned but also simultaneously does not prohibit the same. The allegation of unauthorised use of electricity by a person concerned, as defined in Explanation (b) also covers within its ambit certain acts/omission which constitute an offence under Section 135 of the Act, 2003. Therefore, it is a serious matter and no person can be indicted and held guilty of user of electricity unauthorizedly unless he is given an opportunity of hearing before coming to such conclusion.” 27. Learned counsel for the petitioner has also relied on a judgment of the Apex Court in the case of Chairman, West Bengal State Electricity Board and others v. Syed Mukbul Hossain and others, (2009)2 SCC 727 where in a case of theft of electricity the Apex Court noticed the right of appeal under Section 127 of the Electricity Act, 2003. 28. In aforesaid view of the matter, we are of the considered opinion that assessment under Section 126 is also to be made in theft cases and a person has right of appeal. In the present case it is on the record that assessment was made by the Executive Engineer on the basis of checking dated 14th June, 2006 and assessment bill was given on 13th July, 2006 (Annexure-1 to the writ petition). The assessment made by Executive Engineer was under Section 126 and the petitioner has right of appeal, which appeal has already been filed and is pending. Learned counsel for the Corporation has further submitted that against the order of this Court dated 3rd August, 2008 by which this Court directed that on payment of Rs. 10,00,000/- further recovery shall not been made till the decision of appeal, has been challenged by the Corporation in the Apex Court. It is true that special leave to appeal (Civil) has been filed against the Division Bench order of this Court but it is not the case of the Corporation that the Apex Court has stayed that order till date. It is true that special leave to appeal (Civil) has been filed against the Division Bench order of this Court but it is not the case of the Corporation that the Apex Court has stayed that order till date. Thus the order dated 3rd August, 2006 passed by this Court permitting the petitioner to file appeal and subject to deposit of Rs. 10,00,000/- the realisation was stayed still enures to the benefit of the petitioner and till such date the Apex Court passes an order either staying the order of this Court, it was not open for the Corporation to recover the amount of theft assessment in view of the fact that the petitioner had complied with the order of this Court dated 3rd August, 2006 by depositing the amount of Rs. 10,00,000/-. 29. The next issue to be considered is issue regarding peak hour penalty. As noticed above, the petitioner filed Statutory Complaint No. 822 of 2007 before the UPERC where the UPERC has directed for restoration of electricity on payment of Rs. 5,00,000/- within 15 days and thereafter further deposit of Rs. 10,00,000/- within 15 days. The petitioner has deposited the amount of Rs. 5,00,000/- and the amount of Rs. 10,00,000/- was also subsequently deposited. Learned counsel for the petitioner submitted that since the matter is pending before the UPERC, which is engaging attention of peak hour penalty, and the petitioner having complied with the directions of UPERC, no steps could have been taken for recovery of the peak hour penalty. The said submission has been refuted by learned counsel for the Corporation relying on the judgment of the Apex Court in the case of Maharashtra Electricity Regulatory Commission v. Reliance Energy Ltd. and others, (2007)8 SCC 381 (Paragraph 17 and 34). The Apex Court in the said case has laid down that UPERC cannot entertain individual dispute of consumer. The above judgment of the Apex Court fully supports the submission made by the counsel for the Corporation that UPERC could not have proceeded to decide individual dispute. Learned counsel for the petitioner submits that since the Corporation has already filed special leave to appeal (Civil) against the orders passed by the UPERC, which are pending, unless it is adjudicated by the Apex Court in the pending special leave to appeal (Civil) that UPERC has no jurisdiction, the Corporation cannot ignore the order passed by UPERC. Learned counsel for the petitioner submits that since the Corporation has already filed special leave to appeal (Civil) against the orders passed by the UPERC, which are pending, unless it is adjudicated by the Apex Court in the pending special leave to appeal (Civil) that UPERC has no jurisdiction, the Corporation cannot ignore the order passed by UPERC. However, this Court is fully bound by the law declared by the Apex Court in Maharashtra Electricity Regulatory Commission’s case (supra) where the Apex Court has held that Regulatory Commission cannot entertain the individual dispute. In view of the above, we are not persuaded to accept the submission of the petitioner that in view of the order passed by the UPERC the respondents were restrained from recovering the peak hour penalty amount. 30. The submission, which is next to be considered, is the submission of the petitioner that by virtue of provisions of Paragraph 6.15 of the U.P. Electricity Supply Code, 2005 the respondents could not have recovered the peak hour penalty after expiry of two years. Paragraph 6.15 of the U.P. Electricity Supply Code, 2005 is quoted below : “6.15. Recovery of Arrears : (a) The payments due to the Licensee shall be recovered as per provision of Section 56 of the Act, and arrears of land revenue as per the provisions of the U.P. Government Electrical Undertaking (Dues Recovery) Act, 1958, as amended from time to time. (b) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges of electricity supplied, and the supply of the electricity shall not be disconnected by licensee for this reason. Explanation.—The date from which such charges becomes ‘first due’, needs to be correctly interpreted. If as a result of regular meter reading/inspection of installation of consumer, such charges/penalties levied as per this Code or tariff schedule, shall become first due counted from the due date of payment of such a bill, and such bill shall be provided to the consumer not later than two billing cycle for that category of consumer.” 31. If as a result of regular meter reading/inspection of installation of consumer, such charges/penalties levied as per this Code or tariff schedule, shall become first due counted from the due date of payment of such a bill, and such bill shall be provided to the consumer not later than two billing cycle for that category of consumer.” 31. It is not disputed that peak hour penalty was imposed by the order dated 27th November, 2006 for the period 24th November, 2002 to 8th February, 2003. The Electricity Act, 2003 came into force with effect from 10th June, 2003. Section 56 of the 2003 Act, which is relevant for the purpose, is quoted below : “56. Disconnection of supply in default of payment.—(1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days’ notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer : Provided that the supply of electricity shall not be cut off if such person deposits, under protest,— (a) an amount equal to the sum claimed from him, or (b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee. (2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.” 32. Section 56(2) provides that notwithstanding anything contained in any other law, no sum due from any consumer under this section shall be recoverable after the period of two years from the date when such sum became first due. On the date when the Electricity Act, 2003 was enforced the period for which peak hour penalty was imposed was already over. The liability to pay peak hour penalty arose on the day default was committed, i.e., 24th November, 2002 to 8th February, 2003. Thus the peak hour penalty dues were very much in existence on 10th June, 2003, i.e., on the date of enforcement of the Act. It is true that although there was some dispute regarding the manner of calculation of peak hour penalty, which was ultimately set at rest by the Apex Court vide its judgment in the case of U.P. Power Corporation Ltd. and another v. Lohia Brass (P) Ltd. and others, (2006)7 SCC 220 where the controversy was as to whether the peak hour penalty should be imposed for each alleged contravention or only once on the basis of meter reading report and whether the report is treated as one contravention or each contravention shall be separately imposed. The amount was very much due on the date when the 2003 Act came into force and by virtue of Section 56(2), it was not recoverable after the period of two years. Although the amount became due prior to enforcement of the 2003 Act and the period cannot be said to be started running from the date when it became due but at least it shall start running from the date of enforcement of the Act, i.e., 10th June, 2003. The peak hour penalty was issued for the first time on 27th November, 2006, i.e., beyond the period of two years. The petitioner has also raised this issue before the UPERC that after expiry of two years peak hour penalty could not have been recovered. The peak hour penalty was issued for the first time on 27th November, 2006, i.e., beyond the period of two years. The petitioner has also raised this issue before the UPERC that after expiry of two years peak hour penalty could not have been recovered. The Corporation before initiating to proceed with the recovery of the peak hour penalty has not given any reason as to why even after expiry of two years from the period when it became due they are recovering. It was more necessary for the Corporation to give specific reason for affecting recovery after two years, in view of the fact and circumstances that the issue was raised before the UPERC and the Corporation itself has filed special leave to appeal (Civil) before the Apex Court challenging the very proceeding before the UPERC in which appeal no orders have been passed in favour of the Corporation till date. Thus we are of the opinion that the Corporation could have proceeded for initiating recovery with regard to peak hour penalty after giving appropriate reason for initiating the same after two years by passing a reasoned order. The order dated 10th June, 2009 by which notice was given to the petitioner to deposit the amount failing which recovery will be initiated, does not give any reason as to why after expiry of two years the said recovery is being enforced. Thus, we are of the view that Corporation was also not entitled to initiate recovery proceeding for peak hour penalty without giving any specific reason and without adverting to Section 56(2) of the 2003 Act and Paragraph 6.15 of the Supply Code. 33. The submission, which has been next contended by the petitioner is that the notice given under the U.P. Government Electrical Undertakings (Dues Recovery) Act, 1958 to the petitioner on 10th June, 2009 and the recovery certificate sent are contrary to 1958 Act. In reply the Corporation has stated that demand notice was issued on 21st June, 2009, which was pasted on the premises on 22nd May, 2009 and thereafter on 25th June, 2009 recovery certificate was issued. In reply the Corporation has stated that demand notice was issued on 21st June, 2009, which was pasted on the premises on 22nd May, 2009 and thereafter on 25th June, 2009 recovery certificate was issued. Sections 3 and 5 of the 1958 Act, are quoted below : “3.Notice of demand for dues not paid.—Where any dues [including amount of security payable under Section 47-A of the Electricity (Supply) Act, 1948] are payable by a consumer to a Government Electrical Undertaking, the prescribed authority may, at any time after thirty days from the date on which such dues accrued, serve or cause to be served upon the person liable a notice of demand stating the name of the person, the amount payable by him and the undertaking in respect of which it is due. Explanation (1).—The sending of the notice by registered post shall be deemed to be sufficient service on the person concerned. Explanation (2).—A sum due to a Government Electricity Undertaking shall be deemed to have accrued on the expiry of the date mentioned in the bill for payment of the dues. 5. Recovery of dues.—If the dues for which notice of demand has been served are not deposited with the prescribed authority within thirty days from the date of service, or such extended period as the prescribed authority may allow, the same together with cost of recovery as may be prescribed shall be recoverable as arrears of land revenue, anything contained in any other law or instrument or agreement to the contrary notwithstanding.” 34. According to Section 3 Explanation (1) the sending of the notice by the registered post shall be deemed to be sufficient service on the person concerned. The respondent claims that registered notice was sent on 22nd May, 2009, which fact is also mentioned in the reports, which were submitted on the notice dated 21st May, 2009. The recovery certificate was issued on 25th June, 2009, i.e., after thirty days. Thus notice cannot be said to be invalid on the aforesaid submission. 35. Taking into consideration overall facts and circumstances of the case our conclusions are as under : (a) The Corporation was not entitled to initiate proceeding for recovery of theft assessment on the basis of inspection dated 14th June, 2006 for an amount of Rs. Thus notice cannot be said to be invalid on the aforesaid submission. 35. Taking into consideration overall facts and circumstances of the case our conclusions are as under : (a) The Corporation was not entitled to initiate proceeding for recovery of theft assessment on the basis of inspection dated 14th June, 2006 for an amount of Rs. 84,33,146/- in view of the Division Bench judgment of this Court dated 3rd August, 2006 permitting the petitioner to file appeal under Section 127 of the Electricity Act, 2003 on payment of Rs. 10,00,000/- and restraining the Corporation to recover the amount till the appeal was disposed of. Admittedly the appeal is pending under Section 127 in which 28th July, 2009 was the last date fixed. In the special leave to appeal (Civil) filed by the Corporation, the Corporation has not been granted any interim order staying the order of the High Court. Thus the Corporation could not have proceeded to recover the said amount. The Corporation ought to have taken steps for early disposal of the appeal pending before the Divisional Commissioner. (b) The peak hour penalty was imposed on 27th November, 2006 for the period 24th November, 2002 to 8th February, 2003. By virtue of Section 56(2) of the Electricity Act, 2003 and Paragraph 6.15 of the U.P. Electricity Supply Code, 2005, the Corporation could not have initiated recovery after two years from the day the amount became due without adverting to Section 56(2) of the 2003 Act and Paragraph 6.15 of the Supply Code after expiry of two years from the date when sum became due, which having not done in the present case the recovery for peak hour penalty is unjustified. (c) The Division Bench by its order dated 19th November, 2008 passed in special appeal filed by the Corporation did not direct the Corporation to initiate recovery, rather it has called the parties to give details of liability and dues and as to whether any interim order is continuing in favour of the petitioner. 36. In view of our observations and conclusions, as noticed above, we dispose of the writ petition with the following directions : (i) The order dated 10th June, 2009 (Annexure-21 to the writ petition), citation dated 29th June, 2009 (Annexure-22 to the writ petition) and all consequential actions are quashed. 36. In view of our observations and conclusions, as noticed above, we dispose of the writ petition with the following directions : (i) The order dated 10th June, 2009 (Annexure-21 to the writ petition), citation dated 29th June, 2009 (Annexure-22 to the writ petition) and all consequential actions are quashed. (ii) The Divisional Commissioner, who is ceased with Statutory Appeal (Complaint No. 46 of 2007) under Section 127 of the Electricity Act, 2003 is directed to dispose of the appeal within a period of three months from the date a certified copy of this order is produced before him. The Corporation may proceed thereafter to take consequential action in accordance with law. (iii) This order shall not preclude the Corporation to take appropriate decision and proceed in accordance with law with regard to peak hour penalty after adverting to Section 56(2) of the Electricity Act, 2003 and Paragraph 6.15 of the U.P. Electricity Supply Code, 2005. 37. Parties shall bear their own costs. ————