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2016 DIGILAW 1521 (ALL)

KAMIL v. STATE OF U. P.

2016-04-25

AMAR SINGH CHAUHAN, KRISHNA MURARI

body2016
JUDGMENT By the Court.—Heard Shri B.C. Rai, learned counsel for the petitioner, learned Standing Counsel for respondent No. 1 and Shri Baleshwar Chaturvedi for respondent Nos. 2 and 3. 2. Pleadings have been exchanged between the parties and with their consent, we proceed to decide the writ petition finally. 3. Aggrieved by the order dated 9.10.2006 rejecting the representation made by the petitioner against the provisional assessment and the demand notice, the petitioner has approached this Court. 4. Facts, in brief, which emerge from the pleadings of the parties are that petitioner is a consumer of 6.702 H.P. connection bearing No. 062314 for running a small workshop. A surprise checking at the workshop of the petitioner was carried out on 26.7.2005 and it was found that petitioner was consuming a load of 32.16 H.P., which was far too excessive than the sanctioned load of 6.7 H.P. Petitioner was also found illegally using electrical energy directly taking connection from L.T. Line. An inspection report dated 26.7.2005 was prepared accordingly. An FIR for theft of electricity was also lodged against the petitioner on the same day. A provisional assessment notice dated 29.7.2005 was sent to the petitioner requiring him to deposit a sum of Rs. 2,92,685/- within seven days. Subsequently, a demand notice under Section 3 of the U.P. Government Electrical Undertaking (Recovery of Dues) Act, 1958 dated 8.12.2005 for a sum of Rs. 2,92,685/- was also issued. Petitioner challenged the same by filing Writ Petition No. 10566 of 2006, which was disposed of by a Division Bench of this Court vide order dated 22.8.2006 by making following observation. “In case the petitioner deposits a sum of Rs. One lac with respondent No. 3, Executive Engineer, Electricity Urban Distribution Division I, Udai Singh Jain Road, Aligarh within a period of ten days, the electricity connection of the petitioner will be restored forthwith. The petitioner may also file an objection with respondent No. 3 which shall be decided within a period of three weeks thereafter. Till the objection of the petitioner is decided, no further recovery will be made against the petitioner.” 5. It is contended that in compliance of the aforesaid order, petitioner deposited a sum of Rs. one lac, but his electricity connection was not restored. 6. Till the objection of the petitioner is decided, no further recovery will be made against the petitioner.” 5. It is contended that in compliance of the aforesaid order, petitioner deposited a sum of Rs. one lac, but his electricity connection was not restored. 6. Although the said fact has been denied in the counter-affidavit and it has been stated therein that in compliance of the order passed by this Court, the electricity connection of the petitioner was restored. However, this is not the issue for adjudication in this writ petition. 7. In pursuance of the order dated 22.8.2006 passed on Writ Petition No. 10566 of 2006, the representation/objection made by the petitioner came to be rejected vide order dated 9.10.2006, which is impugned in this writ petition. 8. Shri B.C. Rai, learned counsel for the petitioner submits that no provisional assessment bill was ever issued, as such, there was no opportunity of filing objection nor any opportunity of personal hearing was given as required by the provisions of the Code and this fact has miserably been ignored by the authority while rejecting the representation/objection of the petitioner. It is further submitted that final assessment has been made in violation of the provisions of the Electricity Supply Code as well as Section 126 of the Act. 9. In reply, learned counsel appearing for respondent Nos. 2 and 3 submits that the petitioner was caught committing theft of electrical energy and assessment of the same was made, which amount is being sought to be realised from the petitioner. It is also submitted that petitioner has an efficacious alternative remedy of appeal provided under Section 127 of the Act and, hence, the writ petition is liable to be dismissed on the ground of existence of statutory alternative remedy. 10. Sub-section (1) of Section 126 of the Act provides that if on inspection, the assessing authority comes to the conclusion that the consumer has indulged in unauthorised use of electricity, the Assessing Officer shall provisionally assess to the best of his judgment, electricity charges payable by that person or by any person benefited for such use. Therefore, the condition precedent to attract the power of assessment under Section 126 (1) is the conclusion drawn by the assessing officer that person concerned has indulged in unauthorised use of electricity. Therefore, the condition precedent to attract the power of assessment under Section 126 (1) is the conclusion drawn by the assessing officer that person concerned has indulged in unauthorised use of electricity. Such satisfaction cannot be permitted to be recorded on the mere vagaries of the assessing officer unless a fair opportunity of hearing to defence before the said authority is provided. 11. It is well-settled that principal of natural justice, unless excluded by express provision of the Act or by necessary implication, cannot be held to be inapplicable when a person is being indicted of a serious charge like unauthorised use of electricity, which may, in some cases, also amount to an offence under Section 135 of the Act. It may also be relevant to notice para 6.8 (a) (b) and (c) of the Code, 2005 provided by the U.P. Electricity Regulatory Commission in exercise of powers conferred by Section 50 of the Act. Para 6.8 (a), (b) and (c) of Code, 2005 deals in detail the procedure for inspection, provisional assessment, hearing and final assessment in the case of unauthorised use of electricity and reads as under: “6.8 Procedure for Inspection, Provisional assessment, Hearing and Final Assessment in case of unauthorised use of electricity (UUE) under Section 126 of the Act. (a) (i) An Assessing Officer shall suo-moto, or on receipt of reliable information regarding unauthorised use of electricity or on instruction from higher authority, promptly conduct inspection of such premises, exercising due diligence. (Annexure 7.3 (1)) (ii) The assessing Officer, if required to do so, may handover his business card to the consumer before entering the premises. Photo ID card shall be carried by each team members. (iii) The access to consumer premises shall be in accordance to clause 4.30 to 4.34. Provided that the occupant of the place of search or any person on his behalf shall remain present during the inspection. A list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list. (iv) The report shall be prepared at site giving details of connected load, condition and details of old seals and resealing done, working of meter, details of new seals. The report shall mention any irregularity noticed which may lead to an inference of unauthorised use of electricity in the format given Annexure 6.4. (iv) The report shall be prepared at site giving details of connected load, condition and details of old seals and resealing done, working of meter, details of new seals. The report shall mention any irregularity noticed which may lead to an inference of unauthorised use of electricity in the format given Annexure 6.4. The Inspecting Officer shall carry seals for this purpose. (v) The report shall clearly indicate whether or not conclusive evidence substantiating the fact that UUE was found. The details of such evidence should be recorded in the report. The report shall be signed by each member of the inspection team and handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report shall be pasted at a conspicuous place in/outside the premises and may be photographed. Simultaneously, the report shall be sent to the consumer under Registered Post/Speed post on the day or the next day of the inspection. (vi) Within 3 working days of the date of inspection, the Assessing Officer shall analyse the case after carefully considering all the evidence including the consumption pattern, wherever available and the report of inspection. If it is concluded that no unauthorised use of electricity has taken place, no further action will be taken. (b) Notice to the Consumer and his reply: (i) If the Assessing Officer suspects that Unauthorised Use of Electricity has taken place (as defined under Explanation to Section 126 of the Act), he will serve a provisional assessment bill alongwith show-cause notice to the consumer, giving 15 working days for submission of reply, under proper receipt fixing a date of hearing. (ii) The notice shall invite objections in writing from the consumer against the charges and provisional assessment and require presence of the consumer on the date of hearing. (c) Hearing (i) On the date of hearing, the Assessing Officer shall hear the consumer. The Assessing Officer shall give due consideration to the facts submitted by the consumer and pass, within 7 working days, a speaking order as to whether the case of UUE is established or not. The order shall contain the brief of inspection report, submissions made by the consumer in his written reply and during hearing. The Assessing Officer shall give due consideration to the facts submitted by the consumer and pass, within 7 working days, a speaking order as to whether the case of UUE is established or not. The order shall contain the brief of inspection report, submissions made by the consumer in his written reply and during hearing. (ii) A copy of the order shall be served to the consumer under proper receipt, and in case of refusal to accept the order or in absence of the consumer, shall be served on him under Registered Post/Speed Post. The consumer shall be required to make the payment within 15 days of receipt of final order for assessment. (iii) If the Assessing Officer finds that unauthorised use of electricity has taken place (as defined under explanation to Section 126 of the Electricity Act, 2003, it shall be presumed unless contrary is proved, that such unauthorised use of electricity was continuing for either actual period of misuse, if available, or three months immediately preceding the date of inspection in case of domestic and agriculture services and for a period of six months immediately preceding the date of inspection for all other categories of services, and he shall provisionally assess the consumption as per the procedure specified in Annexure 6.3. (iv) The assessment under (iii) above shall be made at a rate equal to one-and-a-half times the tariff rates applicable for the relevant category of service. The amount billed at this rate (one-and-a-half times the tariff rates) shall not be taken into consideration for the purpose of computing consumer’s liability to pay monthly/annual charges, wherever applicable.” 12. A perusal of para 6.8 (a) (i), (ii), (iv) and (v) shows that it presupposes an inspection of the premises to be made by the assessing officer and if he finds evidence of irregularities constituting unauthorised use of electricity at the premises, shall prepare a report at the site, giving details thereof, and, would handover the copy of such report to the consumer or his representative at the site itself. In case of refusal by consumer or its representative, to either accept or giving receipt to such report, the same shall be pasted at a conspicuous place at the premises and shall also be sent to the consumer under registered post/speed post on the day itself or the next day of the inspection. In case of refusal by consumer or its representative, to either accept or giving receipt to such report, the same shall be pasted at a conspicuous place at the premises and shall also be sent to the consumer under registered post/speed post on the day itself or the next day of the inspection. Therefore, the requirement of prima facie conclusion is supposed to be recorded by the assessing officer at the time of inspection itself and needs to be communicated to the consumer. Para 6.8 (b) (ii) shows that the notice shall require the consumer to give his objections against the charges and provisional assessment. Para 6.8 (c) (i) shows that an opportunity of personal hearing shall also be given to the consumer and thereafter the assessing officer shall pass a speaking order recording (i) whether unauthorised use of energy is established or not, and; where it is so established, (ii) shall determine the quantum of the amount which the consumer has to pay i.e. the assessment shall be made by the assessing officer. Thus even Code, 2005 which contains the conditions of electricity supply etc., provides a detailed procedure in which the assessment would have to be made by the assessing officer. 13. In the case in hand, the assessing officer has proceeded to make assessment in a very strange manner. Admittedly, an inspection of the premises of the petitioner was carried out on 26.7.2005. There is absolutely no averment in the counter-affidavit that petitioner was provided any provisional assessment bill and opportunity to file objection to the same or any date was fixed for hearing as prescribed by clause 6.8 (b) (ii) of the Code, 2005. 14. On the contrary, a perusal of the notice dated 29.7.2005 filed as Annexure 4 to the writ petition goes to show that neither any opportunity to file objection was provided nor any date of appearance or hearing was fixed. The notice required the petitioner to deposit a sum of Rs. 2,92,685/- within seven days of receipt of notice. There is also nothing on record of the counter-affidavit to indicate that before issuing demand notice under Section 3 of the Act, final order of assessment as contemplated under para 6.8 (3) (i) and (ii) was passed by the assessing officer. 15. 2,92,685/- within seven days of receipt of notice. There is also nothing on record of the counter-affidavit to indicate that before issuing demand notice under Section 3 of the Act, final order of assessment as contemplated under para 6.8 (3) (i) and (ii) was passed by the assessing officer. 15. From the above facts and discussions, it becomes evident that procedure prescribed in Section 126 of Electricity Act, 2003 and in para 6.8 for issuing provisional assessment bill has not been followed at all as no opportunity was given to the petitioner for submission of his objection nor any date of hearing was fixed and, thus, the entire procedure adopted by the respondents, is de hors the statutory provisions. 16. The aforesaid view being taken by us is amply supported by another Division Bench judgment of this Court in the case of Ashok Kumar v. State of U.P. and others, 2008(6) ADJ 660 (DB). 17. Now, we proceed to consider the submission made by the learned counsel for the respondent that there being a remedy provided, the writ petition be not entertained and the petitioner be relegated to avail the remedy of appeal provided under Section 127 of the Act. 18. At first, we need to consider the submissions of the learned counsel for the respondents that there being remedy of appeal provided, the writ petition is not liable to be entertained and the petitioner should be relegated to avail the remedy of appeal provided under Section 127 of the Act, 2003. There cannot be any dispute that against the final assessment made under Section 126 of the Act, 2003, an appeal is provided under Section 127 of the Act, 2003. 19. There are two reasons due to which we do not find this is a fit case to be dismissed on the ground of alternative statutory remedy. Firstly, sub-section (3) of Section 126 of the Act, 2003 contemplates of giving an reasonable opportunity of hearing to a consumer before passing a final order of assessment. The submission of the petitioner in the writ petition is that he was not afforded any opportunity of hearing and the assessment order has been passed in violation of the principles of natural justice. From the facts discussed above, it is clear that no opportunity given to the petitioner to file objection to the provisional assessment notice. The submission of the petitioner in the writ petition is that he was not afforded any opportunity of hearing and the assessment order has been passed in violation of the principles of natural justice. From the facts discussed above, it is clear that no opportunity given to the petitioner to file objection to the provisional assessment notice. It is well-settled that when an order is passed in violation of the principles of natural justice, the alternative remedy is not a bar in entertaining the writ petition. 20. The above proposition has been laid down by the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, 1998 (8) SCC 1 . It may be relevant to quote following observations from the said judgment. “15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative reme3dy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool, we would rely or some old decisions of the evolutionary era of the constitutional law as they still hold the field. 16. Rashid Ahmad v. Municipal Board, Kairana, AIR 1950 SC 163 , laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. The Income Tax Investigation Commission, AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This was followed by another Rashid case, namely, K.S. Rashid & Son v. The Income Tax Investigation Commission, AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, “unless there are good grounds therefor”, which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances. 17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh, AIR 1958 SC 86 , as under : “But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.” 18. This proposition was considered by a Constitution Bench of this Court in A.V.Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506 and was affirmed and followed in the following words: “The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus per-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court”. 19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. Income Tax Officer Companies Distt. 19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. Income Tax Officer Companies Distt. I, AIR 1961 SC 372 , laid down : “Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act”. 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 21. That being so, the High Court was not justified in dismissing the Writ Petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the “Tribunal”.” 21. Secondly, the writ petition has been entertained by this Court on 23.4.2008, on which date a conditional interim order was also passed and the same has remained pending for six years. This is another reason for which we do not think it will be appropriate to relegate the petitioner to avail the alternative remedy. 22. In our considered opinion, the procedure adopted by the respondents in proceeding to make assessment against the petitioner being de hors the statutory provisions contained in Section 126 of the Act as well as Code, 2005, the same is not liable to be sustained. 22. In our considered opinion, the procedure adopted by the respondents in proceeding to make assessment against the petitioner being de hors the statutory provisions contained in Section 126 of the Act as well as Code, 2005, the same is not liable to be sustained. The respondent authority while deciding the representation made by the petitioner in pursuance to the earlier order passed by this Court has also failed to advert himself to the fact that the entire procedure adopted in making assessment against the petitioner is not only de hors the provision, but also in violation of the principles of natural justice, as such, the same cannot sustain. 23. In the result, the writ petition stands allowed. 24. The impugned order as well demand notice under Section 3 of the 1958 Act is hereby quashed. 25. However, it shall be open to the respondents to issue a provisional assessment notice in accordance with the provisions of the Act as well clause 6.8 of Code, 2005 inviting objections and fixing a date of hearing and thereafter proceed to finalise the assessment in accordance with law. 26. However, in the facts and circumstances, we do not make any order as to costs.