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2019 DIGILAW 161 (UTT)

Anjum Faiza v. State of Uttarakhand

2019-03-05

ALOK SINGH

body2019
JUDGMENT : Alok Singh, J. 1. Petitioner is a resident of Dehradun. She took domestic electricity connection for her home from the respondent Department. Respondent Department checked the meter and found that there was tempering with the meter. Petitioner informed the respondent Department that one Waseem came to her home and did all the mischief. Respondent department lodged an FIR for theft. Petitioner denied the charges of theft. Respondent Department sent a provisional assessment of Rs. 51,360/- to the petitioner. Petitioner filed objection to the provisional assessment on 17.06.2017. Till date, final assessment order has not been passed but respondent Department disconnected the electricity and sent a demand notice under Section 3 of the Uttar Pradesh Government Electrical Undertaking (Dues Recovery) Act, 1958. Feeling aggrieved, petitioner approached this Court. 2. Heard Mr. (Dr.) K.H. Gupta, Advocate for the petitioner, Mr. Gajendra Tripathi, Brief Holder for the State of Uttarakhand, Mr. N.S. Pundir, Advocate for respondent no. 2 and Mr. M.S. Bhandari, Advocate holding brief of Mr. Pankaj Purohit, Advocate for respondent no. 6. 3. Mr. K.H. Gupta, Advocate for the petitioner submits that a demand notice was issued without passing final assessment order. Further, he has placed reliance on the judgment rendered by this Court in the case of Hotel the Amaris Vs. State of Uttarakhand and others reported in 2015 (2) UD 183 whereby this Court held that personal hearing is must before passing final assessment order. 4. Section 126 of the Electricity Act, 2003 reads as under: “Section 126 – Assessment: (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. [(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person. (4) Any person serve with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him. (5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. (6) The assessment under this section shall be made at a rate equal to [twice] the tariff applicable for the relevant category of services specified in sub-section (5). Explanation : For the purposes of this section,-- (a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b) "unauthorised use of electricity" means the usage of electricity-- (i) by any artificial means; or (ii) by a means not authorised by the concerned person or authority or licensee; or (iii) through a tampered meter; or [(iv) for the purpose other than for which the usage of electricity was authorised; or (v) for the premises or areas other than those for which the supply of electricity was authorised.” 5. Perusal of sub-Sections (3) and (4) of Section 126 would demonstrate that having received provisional assessment, it would be open to the consumer or such person benefited by such use, either to accept the same or to deposit the assessed amount within seven days of service upon him or to file his reply or objection to the provisional assessment and if such reply objection is filed then Assessing Officer, after giving opportunity of being heard to the consumer or such person benefited by such use, shall pass final order. If consumer or such person benefited by such use, still feels aggrieved by way of final assessment may prefer statutory appeal under Section 127 of the Electricity Act, 2003. 6. Mr. N.S. Pundir, Advocate for the respondent no. 2 submits that final assessment order shall be passed within two weeks after giving opportunity of hearing to the petitioner. 7. Since personal hearing is sine qua non before passing the final assessment order, which was not done in the present case, therefore, impugned orders dated 24.01.2018 and 15.05.2018 are liable to be quashed, as it has been passed without issuing final assessment order. Accordingly, impugned orders dated 24.01.2018 and 15.05.2018 are hereby quashed. Either Petitioner or her representative shall appear before the Assessing Officer on 11.03.2019, thereafter, he shall pass final assessment order. 8. Writ petition stands disposed of accordingly.