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2013 DIGILAW 679 (JK)

Abid Hussain Ansari v. State

2013-11-22

ALI MOHAMMAD MAGREY

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1. In this writ petition filed by the petitioner, prayer made is to issue writ in the nature of certiorari to quash the impugned demand notice dated 3rd November, 2013 and electricity bill dated 12th November, 2013, issued by the respondent Department as also writ of mandamus directing the respondents not to disconnect the power supply to the petitioner's Farm House as also to pay damages of Rs. 10000000/- (one crore) in favour of the petitioner for causing defamation and issuing defamatory, false and frivolous electric bills in favour of the petitioner. Brief facts:- 2. Petitioner claims to be the owner and in possession of a Farm House situated at Parihaspora (Diver) Pattan. It is averred that the petitioner is using only a little electricity for the consumption of his electricity against which the petitioner is regularly paying electric bills in favour of the respondents, and questions demand of respondents regarding payment of electricity charges as unpaid amount. 3. Petitioner questions writ of demand issued by respondent No. 5 vide order No. 691/PTN dated 03.11.2013, thereby directing petitioner to pay a sum of Rs. 10,36,837/- due from him on account of supply of electricity energy ending September, 2013, failing which action in terms of provisions of Jammu and Kashmir Electricity Act, has been proposed as also power supply to the installation to be disconnected. 4. Petitioner has questioned the writ of demand and electricity bill as baseless, false, frivolous and against the law and procedure. It is submitted that the official respondents were bound to follow procedure as established under law before the issuance of said notice, therefore, the impugned writ of demand is liable to be quashed. Petitioner has questioned the writ of demand/ notice for payment on the grounds detailed out as under:- (i) That the writ of demand has been issued on 3rd of November, 2013 wherein the petitioner has been intimated to make payment of an amount of Rs. 10,36,837/- as unpaid amount against supply of electricity. It is worthwhile to mention here that it is more condemnable and more gruel some as the conduct and the intention from the respondent department seems malafide while issuing one more bill of electricity that states that the unpaid amount from the petitioner's side is Rs. 1,03,70,241/- dated 12th November, 2013. 10,36,837/- as unpaid amount against supply of electricity. It is worthwhile to mention here that it is more condemnable and more gruel some as the conduct and the intention from the respondent department seems malafide while issuing one more bill of electricity that states that the unpaid amount from the petitioner's side is Rs. 1,03,70,241/- dated 12th November, 2013. It is worthwhile to mention here while going through the said electric bill issued by the respondent department, there is also the variation in the amount shown in different dates. Thus, while taking into consideration the first bill or writ of demand dated 3rd November, 2013 and the variation in the said bill rightly explores the malafide intention against the petitioner in recovering the amount as the amount of electric charges which the petitioner has never used. (ii) That the petitioner being overmodest, gentle and a religious scholar has never been dishonest with anyone. The allegations leveled by the official respondents while issuing the above mentioned baseless, false, frivolous and defamatory electric bills has resulted great mental agony to the petitioner as it being a matter of reputation for which the respondents are liable for the payment of Rs. 1.00 Crore as compensation in favour of the petitioner so as the respondents may be very cautious and careful while issuing any electric bill in favour of any person. There was no question of even a single penny as an unpaid amount from the petitioner's side in favour of the official respondents and on this score the official respondents are liable to be prosecuted under defamation and the impugned electric bills issued by the respondents are liable to be quashed. (iii) That it was binding upon the respondents to take every care and to follow law and procedure before the issuance of any electric bill or notice in favour of the petitioner, but the respondents have totally failed in doing the same for which they are liable to be prosecuted and bound to pay compensation in favour of the petitioner and on this score also the said bill or notices are liable to be quashed. 5. 5. The moot question for consideration of this Court in the instant petition, is as to whether writ of demand issued by respondent No. 5 directing petitioner to pay the amount on account of supply of electricity energy ending September, 2013 can be challenged and relief sought: Relating to supply and use of electricity energy, State Government has enacted J&K. Electricity Act, 2010 (Act No. XIII of 2010) [Refer [2010 (10) JKS JK-196: JKS Soft JKS/5351]. Section 2 (11) defines the Consumer as any person who is supplied with electricity for his own use by a licencee or by the Government or by any other person engaged in the business of supplying electricity to the public under the Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purposes of receiving electricity with the works of a licensee, the Government or such other person, as the case may be. Section 39 of the Act is a charging Section and it provides for charging of energy from the consumer, namely:- (a) A fixed charge in addition to the charge for the actual electricity supplied; (b) A rent or other charges in respect of any electric meter or electric plant provided by the distribution licensee. While fixing the tariff under clause (a) the Government takes into consideration the Consumer's load factor, or the power factor of his load, or his total consumption of energy during any stated period, or the hours at which the supply of energy is required. Section 50 deals with the recovery of sums recoverable under certain provisions of the Act from the consumer in respect of supplying of electrical energy or any sum declared to be recoverable or every fee leviable under the Act. Proviso added to Sub-Section (1) of Section 50 provides that if any person disputes his liability to pay the arrears of electrical energy charges or fees or disputes the correctness of the amount demanded, he may pay the amount demanded from him under protest in writing and may bring a suit in the civil Court to contest his liability and for refund of the amount not due from him." 6. In terms of Sub-Section (1) of Section 50 of Jammu and Kashmir Electricity, Act, 2010, petitioner has to pay the amount demanded from him under protest and is at liberty to bring a suit in the Civil Court to contest his liability for refund of the amount not due from him, therefore, the writ is not a remedy, as such, on this ground alone the writ petition fails. 7. In the above backdrop, this writ petition being meritless and is accordingly dismissed.