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2018 DIGILAW 88 (UTT)

Jasvinder Kaur v. Uttarakhand Power Corporation

2018-03-09

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT : K.M. JOSEPH, J. These two appeals relate to the same matter and, therefore, we are disposing of the same by this common judgment. 2. Special Appeal No. 81 of 2018 arises from Writ Petition (M/S) No. 1067 of 2013 and Special Appeal No. 82 of 2018 arises from Writ Petition (M/S) No. 1405 of 2013. Writ Petition (M/S) No. 1067 of 2013 was filed by the appellant; whereas, Writ Petition (M/S) No. 1405 of 2013 was filed by the respondents (Power Corporation). 3. The case of the appellant, in brief, is that she runs a small scale unit and, on 01.07.2012, the seal of the electricity meter was taken away by the officer and no tampering was found. On the next day, namely, on 02.07.2012, another squad came and they found that the old seal No. 0008679, which was taken away on 01.07.2012 and which was replaced by new seal No. 0001659, was tampered. It is the case of the appellant that this could not have been, as the seal, which was actually taken away on 01.07.2012, was replaced there on 02.07.2012 by new seal. Proceedings were taken under Section 126 of the Electricity Act, 2003, apparently, on the basis that there was theft of electricity. Against the proceedings under Section 126 drawn by notice dated 09.09.2012, appellant filed Writ Petition (M/S) No. 1995 of 2012. By the judgment dated 25.09.2012, the appellant was relegated to the remedy available under Section 127 of the Electricity Act, 2003. Instead, the appellant resorted to the remedy available, as she felt advised, apparently, under Section 42(5) of the Electricity Act, 2003. According to Mr. Piyush Garg, learned counsel for the appellant, the appellant approached the authority under Section 42(5), as, on seeking the information as to which forum the appellant should approach, the appellant was informed that the authority under Section 42(5) is the appellant forum. The forum under Section 42(5) proceeded to, inter alia, take the view that, even if there is theft, appellant can be made liable only for a day. It was further ordered that, on the appellant paying the amount quantified for a day, the electricity connection, which, in the meantime, had been disconnected, should be restored to the appellant. The forum under Section 42(5) proceeded to, inter alia, take the view that, even if there is theft, appellant can be made liable only for a day. It was further ordered that, on the appellant paying the amount quantified for a day, the electricity connection, which, in the meantime, had been disconnected, should be restored to the appellant. According to the appellant, she represented for restoration and, finding no favourable response, she filed the writ petition (WPMS No. 1067 of 2013) seeking the following relief: “1. Issue a writ, order or direction in the nature of mandamus seeking a writ of mandamus that the respondents may be directed to restore the electricity connection of the petitioner unit forthwith and further provide the electricity bill of one day as ordered by the electricity Consumer Grievance Redressal Cell pursuant to the order dated 15.03.2013.” 4. The other writ petition (WPMS No. 1405 of 2013), which was filed by the respondents (Power Corporation), was filed challenging the order dated 15.03.2013 passed under Section 42(5) allowing complaint case of the appellant. The case of the respondents (Power Corporation) would appear to be, inter alia, that, having regard to the right of appeal available under Section 127, there is no power under Section 42(5) to deal with the case. 5. Both the writ petitions came together before the learned Single Judge. By judgments dated 23.08.2017, the writ petitions were disposed of as follows: “Mr. D.S. Patni, Advocate for the petitioner. Mr. Xitij Petshali, Advocate, holding brief of Mr. P.C. Petshali, Advocate for the respondent. Learned counsel for the petitioner, fairly submits that the assessee would be given liberty under Section 126 of the Electricity Act, 2003. Accordingly, the writ petition is disposed of, as undertaken by learned counsel for the petitioner that the needful be done within three weeks from today.” 6. It appears that the appellant filed Recall Applications in both the writ petitions. In the Recall Application filed in Writ Petition (M/S) No. 1067 of 2013, the following order is seen passed: “Mr. Rakesh Thapliyal, Advocate for the petitioner. Mr. D.S. Patni, Advocate for the respondent no. 2. Heard. Inadvertently, Mr. D.S. Patni, has been shown as the Advocate for the petitioner, though he had appeared on behalf of the respondent. In fact, Mr. Rakesh Thapliyal, Advocate for the petitioner. Mr. D.S. Patni, Advocate for the respondent no. 2. Heard. Inadvertently, Mr. D.S. Patni, has been shown as the Advocate for the petitioner, though he had appeared on behalf of the respondent. In fact, Mr. D.S. Patni, Advocate appearing on behalf of the respondent, had submitted that the assessee would be given liberty under Section 126 of the Electricity Act, 2003. Ordered accordingly. Liberty be given to the petitioner, as undertaken by the respondent no. 2, under Section 126 of the Electricity Act, 2003. Recall Application (MCC) No. 1360 of 2017 stands disposed of.” In the Recall Application filed in Writ Petition (M/S) No. 1405 of 2013, the following order is seen passed: “Mr. D.S. Patni, Advocate for the petitioner. Mr. Xitiz Kaushik, Advocate for the respondent. There is no error apparent on the face of record, therefore, the recall application (MCC No.) 1361 of 2017 is dismissed.” 7. It is these orders, which are now called in question in these appeals by the writ petitioner in Writ Petition (M/S) No. 1067 of 2013 (assessee). 8. We have heard Mr. Piyush Garg, learned counsel appearing for the appellant / assessee and Mr. D.S. Patni, learned counsel appearing for the respondents / Power Corporation. 9. Mr. Piyush Garg, learned counsel for the assessee would reiterate the case of the assessee to be that the assessment could be made on the basis of the decision of the authority under Section 42(5) only for a period of one day and the order of the forum under Section 42(5) has not been interfered with by the learned Single Judge. He would reiterate the fact that it is impossible that the impact of the seal being changed could spread over for more than a day as per the order of the Consumer Grievance Redressal Cell. 10. Per contra, Mr. D.S. Patni, learned counsel for the respondents would submit that the orders impugned in both the appeals only reflected a concession, which was made available to the assessee. He reiterated that the forum under Section 42(5) did not have the authority (it is refuted by Mr. Piyush Garg as being not the contention of the respondents). It is also contended that the conduct of the assessee may be noticed. He reiterated that the forum under Section 42(5) did not have the authority (it is refuted by Mr. Piyush Garg as being not the contention of the respondents). It is also contended that the conduct of the assessee may be noticed. It is submitted that, accepting the terms of the order dated 23.08.2017 passed by this Court, under which the matter was relegated back to the authority under Section 126, the assessee was given the opportunity, he filed objection for that purpose and the assessee availed of that opportunity and final orders have been passed under Section 126. 11. Learned counsel for the appellant / assessee, on the other hand, would point out that the order passed by the consumer forum has not been set aside. He would further submit that the appellant was given the impression that assessment under Section 126 will be in terms of the order of the forum. It is on that basis that the matter was remitted back to the proceedings under Section 126. 12. We notice that the original judgment in these cases was pronounced on 23.08.2017 and it is after nearly three months that the Recall Applications were filed. In the interregnum, it appears that the notice was issued to the assessee. The assessee had given his response in terms of the decision of this Court before the appellate forum. It is, thereafter, that the Recall Applications were filed seeking to have the matter heard on merits. It is this relief, which was sought in the Recall Applications, which is actually being pressed before us in the appeals. 13. Having regard to the circumstances of this case, we are not inclined to interfere with the judgments passed by the learned Single Judge as such. We notice that, apparently, pursuant to the original judgment, proceedings have been finalized under Section 126. It will be open to the appellant to pursue the remedy available to the appellant in law. No doubt, Mr. D.S. Patni would point out that the effect of the order passed by the learned Single Judge was the displacement of the order passed by the consumer forum. We make it clear that we have not pronounced on the contention of the appellant regarding the availability of the order of the consumer forum, having regard to the fact that it has not been set aside as such in the writ petition. We make it clear that we have not pronounced on the contention of the appellant regarding the availability of the order of the consumer forum, having regard to the fact that it has not been set aside as such in the writ petition. Both the appeals will stand disposed of.