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Allahabad High Court · body

2016 DIGILAW 1425 (ALL)

RAJEEV GUPTA v. STATE OF U. P.

2016-04-19

ABHAI KUMAR, ARUN TANDON

body2016
JUDGMENT By the Court.—This writ petition has been filed for quashing of the notice dated 20.1.2016 (Annexure 3 to the writ petition) as well as the Notification No. 480/24-UNNP/12-31 (Prakosht)/09, Lucknow: dated 13.9.2012 (Annexure 8 to the writ petition) whereby the State Government has notified the officers for exercise of powers under Sections 126, 135(2) and 152(1) of the Electricity Act, 2003. 2. Facts in short leading to the writ petition are as follows : 3. The petitioner before this Court is a consumer of electricity residing within the territorial limits of city Agra. Electricity distribution licence in respect of city Agra is said to have been granted in favour of Dakshinanchal Vidyut Vitran Nigam Lt. (in short ‘the DVVNL’) under Section 14 of the Electricity Act, 2003. The DVVNL has entered into a franchise agreement with M/s. Torrent Power Ltd. on 18.5.2009. The Torrent Power Ltd. is a company duly registered under the Companies Act. Under the franchise agreement, the said company has been authorized to ensure distribution of electricity within the area specified thereunder as well as to issue bills, etc. in the matter of consumption of electricity and to take appropriate measures where irregularity/illegality/theft of electricity is noticed. 4. The competence of the DVVNL to enter into such a franchise agreement and the power of franchisee to ensure the distribution of electricity as well as to issue bills etc. is not under challenge. It is admitted on record that the petitioner has entered into an agreement for supply of electrical energy. 5. It is admitted that the electricity bills which were issued to the petitioner by the Torrent Power Ltd. were paid by him from time to time. Surprise inspection of the premises of the petitioner was made by the officers of M/s. Torrent Power Ltd. and it was found that the petitioner was involved in theft of electricity. This fact is established from the inspection report, copy whereof has been annexed as Annexure 3 to the writ petition. The petitioner was served with show-cause notice dated 21.1.2016 to explain as to why the assessed amount be not recovered from him. The amount demanded as per notice was Rs. 1,33,431.80/-. 15 days time was granted to the petitioner for filing objection and in case of non-filing of objection, 7 days time was granted to make the payment (reference para-11 of the writ petition). The amount demanded as per notice was Rs. 1,33,431.80/-. 15 days time was granted to the petitioner for filing objection and in case of non-filing of objection, 7 days time was granted to make the payment (reference para-11 of the writ petition). Reply is said to have been submitted by the petitioner to the said notice on 10.2.2016 seeking certain clarifications. 6. It is then stated that a criminal complaint under Section 156 (3) of Cr.P.C. was lodged by the petitioner against the officers of M/s. Torrent Power Ltd. wherein it was stated that the cable up to the meter from transmission lines has been removed unauthorizedly after unlocking the main gate of the petitioner’s premises. According to the petitioner, the main locks of the petitioner’s house was broken and his goods were displaced. The wire up to meter and generator was removed unauthorizedly. On these facts, the petitioner made a complaint under Section 156(3) of Cr.P.C. before the C.J.M., Agra alleging offences under Sections 380, 389, 427 I.P.C. against the officers of M/s. Torrent Power Ltd. The complaint is still to be inquired into by the concerned Court. 7. With reference to the theft committed by the petitioner, the officers of the M/s. Torrent Power Ltd. lodged an F.I.R. against the petitioner on 18.2.2016. 8. Petitioner states that the F.I.R. is the outcome of the complaint lodged by him against the officers of the M/s. Torrent Power Ltd. It is based on false allegations. 9. The petitioner has come up before this Court for following relief : (i) issue a writ, order or direction in the nature of certiorari calling for the records and to quash the notice dated 20.1.2016. (ii) issue a writ, order or direction in the nature of writ of mandamus declaring that Notification No. 480/24-UNNP/12-31(Prakosht)/09 Lucknow: dated 13.9.2012 (Annexure 8 to the writ petition) is ultra vires to the provisions of Sections 126, 135(2) and 152(1) of the Act, 2003. 10. So far as the prayer No. 1 is concerned, we do not find any good ground to interfere with the same at this stage inasmuch as if the petitioner has any grievance in the matter of assessment made, he may respond to the show-cause notice and raise all such objections as may be permissible under the law. 11. 10. So far as the prayer No. 1 is concerned, we do not find any good ground to interfere with the same at this stage inasmuch as if the petitioner has any grievance in the matter of assessment made, he may respond to the show-cause notice and raise all such objections as may be permissible under the law. 11. So far as the prayer No. 2 is concerned, we find that the State Government in exercise of its power under Sections 126, 135(2) and 152(1) of the Electricity Act, 2003 has nominated three different categories of officers of M/s. Torrent Power Ltd. for exercising the powers under the relevant sections. 12. The case in hand pertains to the theft of electricity referable to Section 135 of the Electricity Act, 2003. We therefore confined the issue to the power of the State Government to notify the officers of M/s. Torrent Power Ltd. for exercising power under Section 135(2) of the Act. 13. From a simple reading of Section 135(2) of the Electricity Act, 2003, we find that it provides a power to the officers of the licensee or supplier, as the case may be, authorized in this behalf by the State Government to do the acts which are provided therein. In case where theft of electricity is detected, power to make the assessment and to raise demands under Clause 8.1 of the Electricity Code 2005 follow. The power of the State Government to notify the officers for the purpose of exercising powers under Section 135(2) of the Electricity Act, 2003 is not under challenge. 14. What is contended before us is that the State Government has the power to authorize an officer of the licensee only and since M/s. Torrent Power Ltd. is a franchise, its officers could not be authorized for exercising powers under Section 135(2) of the Electricity Act, 2003 by the State Government 15. The Court made a pointed query as to whether the officers of franchisee would not in turn answer the description of officers of the licensee inasmuch as the franchisee only hold the rights of licence of distribution as per the provisions of the Electricity Act, 2003. No response could be given by the counsel for the petitioner. 16. The Court made a pointed query as to whether the officers of franchisee would not in turn answer the description of officers of the licensee inasmuch as the franchisee only hold the rights of licence of distribution as per the provisions of the Electricity Act, 2003. No response could be given by the counsel for the petitioner. 16. Even otherwise, we are of the considered opinion that at this stage this Court may refrain itself from interfering in the matter inasmuch as all such pleas may be advanced in reply to the provisional assessment bills. 17. Interest of justice would be served if the petitioner is permitted to raise all such factual and legal issues as may be necessary and as may be available under the law in his reply to the notice of provisional assessment including the plea of competence of the officers to assess the amount of electricity which is said to have been stolen by the petitioner. If such plea is raised in reply, it shall be dealt with in accordance with law by means of a reasoned order. 18. For the aforesaid reasons, we find no good ground to interfere with the impugned notice at this stage. The petitioner may respond to the notice within 15 days from today. 19. Petition is dismissed.