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2013 DIGILAW 249 (ALL)

MOOL CHAND SAINI v. STATE OF U. P.

2013-01-21

S.P.MEHROTRA, ZAKI ULLAH KHAN

body2013
Zaki Ullah Khan, J. The present Writ Petition has been filed by the petitioner, inter-alia, praying for quashing the Order dated 26.9.2012 ( Annexure-9 to the Writ Petition) passed by the respondent No. 2). 2. It appears that on 25.3.2011, Checking was made in the premises of the petitioner and theft of electricity was allegedly detected. Thereupon, Provisional Assessment dated 3. 5. 2011 was made in respect of the petitioner. The petitioner submitted Objection/Representation dated 30.5.2011. By the Order dated 7.7.2011, the petitioner was informed that his Objection/Representation dated 30.5.2011, against the Provisional Assessment, was rejected. The petitioner submitted a Representation dated 23.7.2011, inter alia, stating that the Order dated 7.7.2011 rejecting the Objection/Representation of the petitioner had been passed without giving any opportunity of hearing to the petitioner. The petitioner filed a Writ Petition before this Court being Civil Misc. Writ Petition No. 50679 of 2011. The said Writ Petition was disposed of by this Court, by the Order dated 8.9.2011 directing the concerned respondent to consider and dispose of the Objection of the petitioner in accordance with law within the period mentioned in the said Order dated 8.9.2011. 3. It further appears that pursuant to the said Order dated 8.9.2011, the petitioner submitted a representation dated 26.9.2011 along with copies of his earlier Representations dated 30.5.2011 and 23.7.2011. 4. By the Order dated 26.9.2012, the Executive Engineer concerned ( Respondent No. 2) decided the Representation submitted by the petitioner. The concerned Respondent No. 2 rejected the representation of the petitioner by the said Order dated 26.9.2012. The petitioner has, thereupon, filed the present Writ petition seeking the relies, as mentioned above. 5. We have heard Sri Surendra Pratap Singh, learned Counsel for the petitioner and Sri Nripendra Mishra, learned Counsel appearing for the respondent Nos. 2 and 3. 6. Learned Counsel for the respondent Nos. 2 and 3 has raised preliminary objection that against the order dated 26.9.2012 passed by the Executive Engineer concerned ( Respondent No. 2), the petitioner has an alternative remedy of filing Appeal under section 127 of the Electricity Act, 2003 read with Clause 6.8 of the U. P. Electricity Supply Code, 2005. 7. Learned Counsel for the respondent Nos. 2 and 3 has raised preliminary objection that against the order dated 26.9.2012 passed by the Executive Engineer concerned ( Respondent No. 2), the petitioner has an alternative remedy of filing Appeal under section 127 of the Electricity Act, 2003 read with Clause 6.8 of the U. P. Electricity Supply Code, 2005. 7. Sri Surendra Pratap Singh, learned Counsel for the petitioner submits that existence of alternative remedy is not an absolute bar to entertainment of Writ petition under Article 226 of the Constitution of India, and the Writ Petition may be entertained despite existence of such alternative remedy. 8. Having regard to the facts and circumstances of the case and having considered the submissions made by the learned Counsel for the parties and keeping in view the nature of the controversy involved in the present Writ Petition, we are inclined to accept the preliminary objection raised by Sri Nirpendra Mishra, learned Counsel for the respondent Nos. 2 and 3. 9. Sub-section ( 1) of section 126 of the Electricity Act, 2003 provides for making provisional assessment. Sub-section ( 2) of Section 126provides for service of the order of provisional assessment on the person affected. 10. Sub-section ( 3) of section 126 provides for filing of objections by the person affected against the Provisional Assessment. 11. Sub-section ( 3) of section 126 further provides for making final order of assessment after considering the objections by the person affected against the Provisional Assessment and after affording reasonable opportunity of hearing to such person. 12. Sub-section ( 1) of section 127 of the Electricity Act, 2003 provides that any person aggrieved by the final order, made under section 126, may file Appeal to the Appellate Authority within the period 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. 13. Thus, the petitioner has an alternative remedy under the aforesaid provisions against the order dated 26.9.2012, impugned in the present Writ Petition. 14. The Writ Petition is, therefore, liable to be dismissed, and the same is, accordingly dismissed on the said ground of availability of alternative remedy of filing Appeal to the petitioner. Petition Dismissed.