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2012 DIGILAW 698 (ALL)

Vineeta Kohli v. U. P. Power Corporation & Others

2012-03-22

DEVENDRA KUMAR UPADHYAYA, DEVI PRASAD SINGH

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Devi Prasad Singh & Devendra Kumar Upadhyaya,JJ.:- Heard Shri Vivek Raj Singh, learned counsel for the petitioner and Shri Prabhat Narain holding brief of Shri Kapil Mishra, learned counsel for the respondents. 2. With the consent of parties we decide the writ petition at admission stage. 3. In pursuance of the order dated 21.03.2012 passed by this Court, respondent no.4, the Executive Engineer is present in person. Though, he submits that in pursuance of the judgment and order dated 27.09.2011 a decision has been taken but the same has not been served on the petitioner till today. The petitioner is the owner of the house of C-9H, Park Road, Mahanagar Extension, Lucknow. The tenant Santosh Singh failed to pay the electricity dues and due to non-payment of the electricity dues, the supply of the electricity was disconnected on 25.11.2008 and thereafter the meter was also removed by the officers of the opposite parties on 02.06.2009. An F.I.R. Was also lodged against the petitioner in Mahanagar Police Station on 27.11.2009. The respondents had published O.T.S. Scheme with regard to electricity dues. The tenant Santosh Singh moved an application for O.T.S. for electricity dues and he also deposited the requisite fee of Rs.1,000/- for consideration of the case. In compliance thereof , the opposite parties issued an electricity bill for the period from 16.07.2008 to 25.11.2008 for Rs. 7,33,014.00 including the assessed amount as theft of electricity of Rs. 5,70,933.00. Against the said electricity bill, tenant Santosh Singh filed an objection under Section 126(3) of the Electricity Act , 2003 on 15.04.2010 before the respondent no.3. It appears that during the pendency of the objection filed under Section 126(3) of the Electricity Act , 2003 , the respondents had proceeded ahead against the petitioner with regard to recovery of electricity dues. Tenant Santosh Singh preferred a Writ Petition bearing no. 4564 (M/B) of 2010 in this Court which was disposed of by this Court vide judgement and order dated 14.05.2010 directing the respondents to decide the controversy in accordance to law by passing a speaking and reasoned order expeditiously and preferably within a period of two months . In compliance thereof, the respondents issued another bill dated 31.05.2010 for a period from 30.04.3010 to 31.05.2010 for Rs.2,86,540.68 paise. In compliance thereof, the respondents issued another bill dated 31.05.2010 for a period from 30.04.3010 to 31.05.2010 for Rs.2,86,540.68 paise. However, the said bill was opposed on the ground that the electricity was not used either by the petitioner or the tenant during the period in question. Even then, the petitioner tried to pay an amount of Rs.2,86,566.00 through Cheque No. 849911 dated 07.12.2010 towards electricity dues but the same was not accepted. Hence, the petitioner filed another writ petition bearing no.4174 (M/B) of 2011 in this Court which was disposed of vide judgment and order dated 04.05.2011. During the course of hearing of the said writ petition, Shri Prabhat Narayan, learned counsel for the Corporation stated that the petitioner may approach the Executive Engineer where she can deposit the amount in question through cheque subject to verification by the Executive Engineer that the payment of final amount is validly discharged.In view of the statement made by Shri Prabhat Narayan, the writ petition was finally disposed of on 04.05.2011.Thereafter, the respondents issued revised bill on 09.05.2011 for Rs.2,20,801.00 for the period from 16.07.2008 to 09.05.2011.It has been further submitted by the learned counsel for the petitioner that the bill of Rs. 2,20,801.00 was deposited on the same day through Cheque no. 042228 dated 09.05.2011 vide receipt No. 079412 on 09.05.2011 which was received by the office of the respondents on the same day. It is also stated that although, in the aforesaid electricity bill again an amount of Rs. 1,44,070.66 was shown as previous balance without mentioning the period and Rs. 53,408.71 as late payment penalty. Thereafter accepting the said amount the respondents restored the electricity supply of the petitioner. 4. Subject to aforesaid back-drop the petitioner received a letter dated 15.07.2011 from the office of respondent no.3 by which he was again required to deposit an amount of Rs. 5,78,555/- by 20th July 2011. 5. Feeling aggrieved with the another bill raised by respondents, the petitioner had preferred a writ petition no.7356 (MB) of 2011 in which an interim order was passed on 28th July 2011 by this court providing therein that subject to deposit of rupees one lac the electricity connection be restored immediately. In compliance of the order dated 28th July 2011 passed by this Court, the petitioner deposited amount of Rs. one lac on 28th July 2011 vide receipt no.-079440/07 dated 28.7.2011. 6. In compliance of the order dated 28th July 2011 passed by this Court, the petitioner deposited amount of Rs. one lac on 28th July 2011 vide receipt no.-079440/07 dated 28.7.2011. 6. The Writ Petition no.7356 (MB) of 2011 was decided finally by this court 27th September 2011. The judgment and order dated 27th September 2011, is being reproduced below :- “Present petition under Article 226 of the Constitution of India has been preferred against the impugned demand notice with regard to payment of electricity dues. By an interim order dated 28.07.2011, the petitioner was permitted to deposit an amount of Rs.1.0 lac and in consequence thereof, respondents were directed to restore the electricity connection. While filing the counter affidavit, it has been stated in paragraph no.9 of the counter affidavit that provisional assessment has been made on the basis of checking report and amount has been assessed to Rs.5,70,933/-. Accordingly, petitioner was required to pay the dues in question. Copy of the bill on the basis of the original assessment order is annexed as annexure CA-4. Now option is open to the petitioner to file objection against the provisional assessment order. Since no final assessment has been made by the respondents and only provisional assessment has been made, hence liberty should be given to the petitioner to raise his grievance before the assessing authority itself. Accordingly, liberty is given to the petitioner to file objection against the provisional assessment order of Rs.5,70,933/- within a period of one month from today and in case, an objection is filed, that shall be considered by the assessing authority and final decision shall be taken by passing a reasoned and speaking order expeditiously say within a period of two months from the date of filing of the objection to the provisional assessment order and decision so taken shall be communicated to the petitioner. Needless to say that against the final assessment order, the petitioner has option to prefer an appeal under Section 127 of the Electricity Act. For a period of three months or till the disposal of the objection filed by the petitioner, status-quo as exists today shall be maintained subject to payment of electricity charges with regard to regular use of electricity. The amount of Rs.1.0 lac deposited by the petitioner shall be adjusted in the final decision taken by the respondents while issuing the final assessment order. The amount of Rs.1.0 lac deposited by the petitioner shall be adjusted in the final decision taken by the respondents while issuing the final assessment order. Subject to above, the writ petition is disposed of accordingly.” 7. At the face of the record while deciding the case, the petitioner was given liberty to file objection against the provisional assessment order of Rs. 5,70,933.00/- within a month and it was further provided that the Assessing Authority shall take final decision and shall pass a reasoned and speaking order expeditiously within a period of two months. Against the decision of provisional assessment order the option was open to the petitioner to prefer an appeal under Section 127 of the Electricity Act. It is submitted by the learned counsel for the petitioner that without adjudicating the dispute with regard to objection filed by the petitioner against the provisional assessment order, the petitioner has been served with the impugned notice dated 2nd January 2012 whereby he has been directed to pay the dues by 07th January 2012 which is about 4,81,191/-, against which the petitioner has also filed an objection. The submission of the learned counsel for the petitioner is that once the petitioner has filed objection alongwith judgment and order dated 27th September 2011 (supra) the Executive Engineer is not justified in sending notice dated 2nd January 2012. 8. In pursuance to the order 21st March 2012 passed by this Court the Executive Engineer Sri R.K.Srivastava is present in person before this court. It has been stated by Sri R.K.Srivastava that in pursuance to the order passed by this Court, after taking into account the objection filed by petitioner, a decision was taken on 9th December 2011. However, he admits that order dated 09.12.2011 has not been communicated to the petitioner till date. A photostat copy of the order dated 09.12.2011 has been provided to the learned counsel for the petitioner today itself. 9. The facts and circumstances and material available on record reveal the high- handedness treatment imparted by the respondent no.3 to the petitioner. However, he admits that order dated 09.12.2011 has not been communicated to the petitioner till date. A photostat copy of the order dated 09.12.2011 has been provided to the learned counsel for the petitioner today itself. 9. The facts and circumstances and material available on record reveal the high- handedness treatment imparted by the respondent no.3 to the petitioner. Once this Court while deciding the Writ Petition No.7356 (MB) of 2011vide order dated 27.09.2011 has given a liberty to the petitioner that she shall file objection and thereafter against the decision an appellate remedy is available to the petitioner, the Executive Engineer passed the order but it has not been communicated to the petitioner so that he could avail appellate remedy against the decision taken by Executive Engineer and almost more than three months have passed. The Executive Engineer has kept the order with himself and not served the same on the petitioner. He has been called by the Court and he submits that it is fault of the office. There appears to be no reason not to draw an inference that the order produced before the Court is ante-dated and prepared after receipt of the notice. It is evident from the fact that in the impugned notice there is no reference or whisper with regard to the order dated 09.12.2011. The manner in which the respondents dealt with the petitioner while issuing repeated revised bills seems to be suffered from vice of arbitrariness by the officer of the U.P. Power Corporation Ltd.. The matter in which the respondents have proceeded ahead in this case reveals that the concerned Executive Engineer has not acted fairly for some extraneous reason.. 10. The authorities of the Power Corporation must be clear, fair and specific while making aware the citizen with regard to electricity charges. It is not permissible for the officers of the Corporation that after deciding an objection, they keep the decision with them or with the office. Such action on the part of the respondent no.3 amounts to abuse of powers causing mental pain and agony to the public in a Democratic Country ruled by law. It is not permissible for the officers of the Corporation that after deciding an objection, they keep the decision with them or with the office. Such action on the part of the respondent no.3 amounts to abuse of powers causing mental pain and agony to the public in a Democratic Country ruled by law. The instant writ petition is not only deserves to be allowed but it is a fit case where exemplary costs should be awarded to the petitioner keeping in view the facts and circumstances and law laid down in the case reported in (2005) 6 Supreme Court Cases 344, Salem Advocate Bar Association (II), Vs. Union of India. 11. In view of above, the writ petition is allowed with cost quantified to Rs.25,000/- (Rupees Twenty Five Thousand only) which shall be deposited by the respondent No.3 in this Court within one month from today. In case, it is not deposited, it shall be recovered as arrears of land revenue. The Registry to take follow-up action. Out of Rs.25,000/-, the petitioner shall be allowed to withdraw Rs.15,000/-(Rupees Fifteen thousand only) and Rs. 10,000/- (Rupees Ten thousand only ) shall be remitted to the Mediation Centre of High Court Lucknow Bench, Lucknow. 12. A writ in the nature of certiorari is issued quashing the impugned demand letter/notice dated 02.01.2012 issued by the respondent no.3 contained as Annexure no.1 to the writ petition. Liberty is given to the petitioner to file an appeal before the authority concerned within one month under Section 127 of Electricity Act, as provided by judgment and order dated 27th September 2011 passed by this Court (mentioned above) and the appellate authority shall decide the said appeal expeditiously say within a period of three months . For a period of four months status quo as it exists today shall be maintained. 13. Writ Petition is allowed accordingly. ____________