Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1462 (ALL)

Mohd. Farooq v. DVVNL and Others

2011-06-22

SUDHIR AGARWAL

body2011
Sudhir Agarwal, J. Heard Sri B. C. Rai, learned counsel for the petitioner and Sri Rajesh Tripathi, learned Counsel for the respondent nos. 1 & 2 and have gone through the record. 2. It is contended that the Assessing authority as well as the appellate authority both have passed non speaking and unreasoned order inasmuch as the Executive Engineer has passed the final assessment order on 8.9.2008 which is ex-facie, unreasoned and non speaking order. It did not consider any of the objections raised by the petitioner. Similarly, in appeal, petitioner raised several issues including very factum as to whether the petitioner had committed any theft or not and in respect thereto no finding was recorded but the appellate authority wholly on one aspect of the matter and that too without considering the relevant provision has passed the impugned order ignoring all other legal and factual objections raised by the petitioner. 3. It is also contended that before passing the impugned orders the first finding of fact which has to be recorded by the appellate authority is about the very allegation of theft of electricity and the manner in which it is found proved, but no such finding has been recorded by any of the authorities, though it is obligatory as held by the Court in Ashok Kumar and others Vs. State of UP and others, 2008 (6) ADJ 660 . 4. Mr. Rajesh Tripathi, learned counsel appearing on behalf of respondents having gone through the impugned orders could not dispute that both the two orders do not contain the reasons or consideration of various submissions advanced by petitioner. He submits at Bar that since from the perusal of the impugned orders it is evident that the assessment order was wholly without jurisdiction and the petitioner appears to have not been granted any opportunity of hearing before passing the said order, he does not propose to file any counter affidavit otherwise it would only linger on the matter unnecessarily. It is further stated that the Court may remand the matter before the assessing authority for passing a reasoned order after affording an opportunity of hearing to the petitioner who shall decide the same after considering the objections raised by the petitioner. 5. It is further stated that the Court may remand the matter before the assessing authority for passing a reasoned order after affording an opportunity of hearing to the petitioner who shall decide the same after considering the objections raised by the petitioner. 5. Having considered the above submissions and statement of the leraned counsel for the respondents and also after perusing the record undoubtedly it cannot be said that two orders impugned in this writ petition are sustainable. The asessment order passed by the Executive Engineer is absolutely non speaking, unreasoned order. He has simply calculated the amount of assessment without considering any objection of the petitioner. Even he has failed to record a finding as to whether the petitioner is found guilty of committing theft of electrical enerty and if so on what circumstance which is condition precedent to enable him to proceed to make assessment. This is how the matter has been examined and decided by this Court in Ashok Kumar(Supra). Appellate authority also having failed to consider the various grounds taken by the petitioner in appeal has passed a non speaking order. 6. The writ petition is accordingly allowed. The impugned order of assessment dated 8.9.2008 and the appellate order dated 25.5.2011 are hereby set aside. The matter is remanded back to the concerned assessing authority to decide afresh in accordance with law after affording an opportunity of hearing to the petitioner. He shall also consider objections raised by petitioner. 7. Learned counsel for the petitioner further stated that his electric supply has been disconnected by the respondent no. 2 on 2.6.2011 though after rejection of petitioner's appeal no demand order has been issued in respect to assessed amount and therefore above disconnectrion is patently illegal. 8. In my view, it would not be necessary to consider this aspect of the matter in view of the fact that the petitioner pursuant to this court's order dated 14.3.2008 has deposited Rs. 2.43 lacs and odd as stated in paragraph no. 11 of the writ petition. 9. In the circumstances, the respondents are directed to restore the electric connection of the petitioner forthwith. However, it is made clear that all this arrangements shall be subject to the final orders passed by the authorities concerned as directed above in accordance with law. 10. There shall be no order as to costs.