Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 1489 (PNJ)

Ram Singh v. Punjab State Power Corporation

2013-11-13

RAMESHWAR SINGH MALIK

body2013
JUDGMENT RAMESHWAR SINGH MALIK, J. (Oral) Applicant seeks to place on record the replication. Application is allowed, as prayed for. CM stands disposed of. The present writ petition is directed against the order dated 3.12.2012 (Annexure P6) passed by the appellate authority, thereby upholding the impugned final order of assessment (Annexure P3), which was passed by the competent authority without granting an opportunity of being heard to the petitioner. Brief facts of the case are that petitioner was a consumer of the respondent Corporation. Premises of the petitioner were checked vide checking report dated 21.5.2012 (Annexure R1) and pursuant thereto, provisional order of assessment was issued to the petitioner vide Annexure P1. Petitioner submitted his objections vide Annexure P2. Thereafter, the competent authority issued the final order of assessment (Annexure P3) but without granting an opportunity of being heard to the petitioner. Dissatisfied, petitioner filed his statutory appeal vide Annexure P4. Respondent Corporation submitted its response vide Annexure P5 and thereafter the impugned appellate order was passed by the appellate authority vide Annexure P6 upholding the abovesaid impugned final assessment order. Hence, this writ petition. Notice of motion was issued and pursuant thereto, reply was filed on behalf of respondents No. 1 and 3 to 6. Petitioner filed his replication. Learned counsel for the petitioner submits that the impugned order of final assessment (Annexure P3) as well as the impugned appellate order (Annexure P6) were liable to be set aside only on the short ground that the mandatory provisions of law contained in Section 126(3) of the Electricity Act, 2003 (`the Act' for short) have been glaringly violated in the present case. He further submits that had an opportunity of being heard been granted to the petitioner, he might have satisfied the competent authority not to pass the impugned final order of assessment against the petitioner. However, since the valuable right of the petitioner has been infringed while not granting him the opportunity of being heard as provided under Section 126(3) of the Act, a serious prejudice has been caused to the petitioner. Finally, he prays for setting aside the impugned order by allowing the present writ petition. Per contra, learned counsel for the respondent submits that the objections raised by the petitioner vide Annexure P2 were duly considered and the amount was reduced from 4,11,152/to Rs.2,74,102/, which shows that the competent authority was not biased against the petitioner. Finally, he prays for setting aside the impugned order by allowing the present writ petition. Per contra, learned counsel for the respondent submits that the objections raised by the petitioner vide Annexure P2 were duly considered and the amount was reduced from 4,11,152/to Rs.2,74,102/, which shows that the competent authority was not biased against the petitioner. The order of final assessment was passed after due application of mind and in view of the peculiar facts and circumstances of the case. He further submits that since no malafide has been alleged against any of the officer of the Corporation, no prejudice was caused to the petitioner and the writ petition was liable to be dismissed. Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in view of the given fact situation of the present case, the instant writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter. Since the primary issue involved herein revolves around the alleged violation of the provisions of Section 126(3) of the Act, it would be appropriate to reproduce the relevant extract thereof and the same reads as under: “126(3) The person, on whom an order has been served under subsection (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.” A bare perusal of the abovesaid provisions of law would show that the provisions of Section 126(3) of the Act are mandatory in nature providing valuable right to the consumer to substantiate his plea, already raised by way of objections, before the competent authority. The statutory duty has been cast on the competent authority to afford an opportunity of being heard to the consumer before passing the final assessment order. The statutory duty has been cast on the competent authority to afford an opportunity of being heard to the consumer before passing the final assessment order. When a pointed question was put to the learned counsel for the respondents to show as to how the provisions of Section 126(3) of the Act were complied with by the competent authority before issuing the impugned final assessment order, he had no answer. Having said that, this Court feels no hesitation to conclude that since the mandatory provisions of law contained in Section 126(3) of the Act have been glaringly violated in the present case, the impugned orders cannot be sustained. The argument raised by the learned counsel for the respondents that no prejudice has been caused to the petitioner has no legs to stand for the reason that the provisions of Section 126(3) of the Act are mandatory in nature. Once the statute puts an obligation on the authority to do a particular thing in a particular manner, the authority would be duty bound to comply with the provisions of the Act in letter and spirit. Any other interpretation of the provisions of Section 126(3) of the Act would defeat the object of the Act. Appellate authority also fell in serious error of law while passing the impugned appellate order. In this view of the matter, the impugned orders are not sustainable in law. The view taken by this Court also finds support from the Full Judgment of this Court in Kashmiri Lal v. The State of Punjab, 1984 AIR (Punjab) 87. The relevant observations made by the Full Bench, which can be gainfully followed in the present case, read as under: “13 ......A close perusal of the judgment on this point would show that the conclusion turned wholly on the ground that no prejudice would arise to the persons affected by the acquisition because limitation for filing objections runs from the date of the publication in the gazette and not from the date of notice in the locality. With the greatest deference, it would appear to me that this line of reasoning is not tenable in view of the categoric observations in Narindrajit Singh and others v. State of U.P. and others, 1973 R.L.R. 140. With the greatest deference, it would appear to me that this line of reasoning is not tenable in view of the categoric observations in Narindrajit Singh and others v. State of U.P. and others, 1973 R.L.R. 140. Therein, it was held that the provisions of Section 4 of the Act were so mandatory in nature that the question of any prejudice being caused or otherwise was wholly extraneous. It was attempted to be argued before their Lordships of the Supreme Court in the said case that since in cases of urgency under Section 17 of the Act, no objections could be filed against the acquisition, consequently no prejudice would arise to the persons affected by the lack of any public notice in the locality. This contention was sternly rejected by holding that the provisions of Section 4(1) of the Act were mandatory in all situations irrespective of any prejudice to the parties and it was concluded as under: "........In our opinion Section 4 (1) has to he read as an integrated provision which contains two conditions; the first is that the notification in the official gazette must be published and the second is that the Collector has to cause public notice of the substance of such notification to be given. These two conditions must be satisfied for the purpose of compliance with the provisions of Section 4(1).” The aforesaid observations would again indicate the sequence of the publication and the locality notice and it would appear that the notification in the official gazette must precede the public notice of the substance of such notification in the locality and not vice versa. The same result flows from the Full Bench decision of this Court in Rattan Singh & another v. The State of Punjab and others, 1976 R.L.R. 379 which inevitably had followed the final court.” Recapitulating the facts of the present case, since the opportunity of being heard was admittedly not granted to the petitioner, the impugned orders have resulted in miscarriage of justice. Valuable right of the petitioner was taken away and principles of natural justice as well as mandatory provisions of law contained in Section 126(3) of the Act stood violated. Under these circumstances, the impugned orders cannot be sustained. No other argument was raised. Valuable right of the petitioner was taken away and principles of natural justice as well as mandatory provisions of law contained in Section 126(3) of the Act stood violated. Under these circumstances, the impugned orders cannot be sustained. No other argument was raised. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that in the given fact situation of the instant case, present writ petition deserves to be allowed. Consequently, the impugned final assessment order (Annexure P3) as well as impugned appellate order (Annexure P6) are hereby ordered to be set aside. However, the competent authority shall be at liberty to pass fresh order of final assessment ensuring due compliance of the provisions of Section 126(3) of the Act, granting an opportunity of being heard to the petitioner. The amount deposited by the petitioner shall also be kept in view by the competent authority at the time of passing the final assessment order. Resultantly, with the observations made and directions issued as hereinabove, the present writ petition stands allowed, however, with no order as to costs.