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2012 DIGILAW 2630 (ALL)

Gopali v. State of U. P. Through Secretary U. P. , Lucknow

2012-11-07

HET SINGH YADAV, S.P.MEHROTRA

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JUDGMENT Het Singh Yadav, J. It appears that on the basis of Checking made on 24.3.2011, the Provisional Assessment dated 4th July, 2011 (Annexure No. 2 to the Writ Petition) was made in respect of the petitioner. A Demand Notice dated 11.8.2011 ( Annexure No. 5 to the Writ Petition) was issued to the petitioner on the basis of the Provisional Assessment. The petitioner filed Writ Petition before this Court being Civil Misc. Writ Petition No. 50626 of 2011 raising the grievance that the Objection filed by the petitioner against the Provisional Assessment had not been decided. This Court by the Order dated 8.9.2011 (Annexure No. 6 to the Writ Petition) disposed of the said Civil Misc. Writ Petition No. 50626 of 2011 directing the respondent no.2 ( Executive Engineer, Pashchimanchal Viddhut Vitran Nigam Ltd., Vidhut Vitran Khand-3, Bulandshahar) to dispose of the Objection filed by the petitioner within the time mentioned in the Order dated 8.9.2011. Pursuant to the direction given in the Order dated 8.9.2011, the Executive Engineer, Pashchimanchal Viddhut Vitran Nigam Ltd., Vidhut Vitran Khand-3, Bulandshahar ( Respondent No.2) has passed the Order dated 26.9.2012 dismissing the Objection filed by the petitioner. Copy of the order dated 26.9.2012 has been filed as Annexure No. 7 to the Writ petition. The petitioner has thereupon filed the present Writ Petition, interila, praying for quashing the order dated 26.9.2012. We have heard Shri Surendra Pratap Singh, learned counsel for the petitioner, Shri Nripendra Mishra, learned counsel for the respondent no.2 and the learned Standing Counsel appearing for the respondent no.1. Shri Nripendra Mishra, learned counsel for the respondent no. 2 has raised preliminary objection that against the Order dated 26.9.2012 passed by the respondent no.2, the petitioner has alternative remedy of filing appeal before the concerned authority under the provisions of Section 127 of the Electricity Act. 2003 read with the relevant provisions of the U.P. Electricity Supply Code, 2005, particularly Clause 6.8. thereof. Shri Surendra Kumar, learned counsel for the petitioner submits that the alternative remedy available to the petitioner is not absolute bar and the Writ Petition may be entertained despite existence of such alternative remedy. Having considered the submissions of the learned counsel for the parties, we are inclined to accept the preliminary objection raised by the learned counsel for the respondent no. 2. Having considered the submissions of the learned counsel for the parties, we are inclined to accept the preliminary objection raised by the learned counsel for the respondent no. 2. Subsection (1) of Section 126 of the Electricity Act, 2003 provides for making provisional assessment. Subsection (2) of Section 126 provides for service of the order of provisional assessment on the person affected. Subsection (3) of Section 126 provides for filing of objections by the person affected against the provisional assessment. Sub-section (3) of Section 126 of the Electricity Act, 2003 further provides for making final order of assessment after considering the objections filed by the person affected against the provisional assessment and after affording reasonable opportunity of hearing to such person. Subsection (1) of Section 127 of the Electricity Act, 2003 provides that any person aggrieved by the final order made under Section 126 may prefer an appeal to the Appellate Authority within the time mentioned in the said provision. Clause 6.8 of the U.P. Electricity Supply Code, 2005 also contains provisions for Appeal against the final order of assessment. The petitioner, thus, has an alternative remedy of filing appeal before the Appellate Authority under Section 127 of the Electricity Act, 2003 read with Clause 6.8 of the U.P. Electricity Supply Code, 2005, against the final assessment order dated 26.9.2012 made by the Respondent No. 2. The controversy involved in the present Writ Petition is basically factual in nature and such controversy may appropriately be decided in the Appeal before the Appellate Authority. In view of the above, we are of the opinion that the Writ Petition is liable to be dismissed on the ground of availability of alternative remedy to the petitioner, and the same is accordingly dismissed on the said ground.