Allahabad High Court
Latif vs State Of U.P. And Others on 14 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2332
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - C No. - 33732 of 2006 Petitioner :- Latif Respondent :- State Of U.P. And Others Counsel for Petitioner :- V.K. Jaiswal Counsel for Respondent :- C.S.C.,A.K. Mehrotra,Chandan Agarwal Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Shri V. K. Jaiswal, learned counsel for petitioner, learned Standing Counsel for State-respondent, Shri A. K. Mehtora, learned counsel for respondent nos. 2 and 3.
2. The bill-cum-notice dated 26.3.2006 (Annexure-2 to writ petition) has been challenged. On the ground of allegations of theft of electricity, assessment bill was issued, without undergoing process of assessment in accordance with provision contained in para 6.8 of Electricity Act, 2003 (hereinafter referred to as "Act, 2003") and law laid down by this Court in case Ashok Kumar and others Vs. State of U.P. and others 2008 (6) ADJ 660 (DB).
3. The parties before this Court do not dispute that the assessment in the case in hand has been made by following the procedure prescribed in Para 6.8 of Code, 2005 read with Section 126 of Act, 2003. I find that this aspect regarding procedure to be followed by authorities in making inspection and then assessment has already been considered in Ashok Kumar & others (supra). In paras 56 to 64 and then in paras 77 and 78 the Court has said:
"56. The provisional assessment notices are in question in all these cases except writ petitions no. 21986 of 2008 and 22356 of 2008 and have also been challenged on the ground that neither they have been issued observing the procedure prescribed under Section 126 of the Act, 2007 read with Clause 6.8 of Code, 2005 nor the petitioners have been given adequate opportunity of defence.
57. Sub-section 1 of Section 126 provides that if on inspection, the assessing authority comes to the conclusion that the person concerned is indulged in unauthorized user of electricity, the assessing officer shall provisionally assess, to best of its judgment, electricity charges payable by that person or by any other person benefited by such use. Therefore, the conditions precedent to attract the power of assessment under Section 126 (1) is the conclusion drawn by the assessing officer that the person concerned has indulged in unauthorized use of electricity.
58. The term "unauthorized use of electricity" is defined in explanation (b) to Section 126 which includes usage of electricity (i) by any artificial means; or (b) 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. Before issuing an assessment notice, therefore, the assessing officer must record its conclusion that the person concerned or any other person benefited has used electricity unauthorizedly in terms as defined in Explanation (b) of Section 126. The Act in respect to the stage of recording of conclusion by assessing officer regarding user of electricity by the person unauthorizedly does not provide specifically for any opportunity of hearing to the person concerned but also simultaneously does not prohibit the same. The allegation of unauthorised use of electricity by a person concerned, as defined in Explanation (b) also covers within its ambit certain acts/omission which constitute an offence under Section 135 of the Act, 2003. Therefore, it is a serious matter and no person can be indicted and held guilty of user of electricity unauthorizedly unless he is given an opportunity of hearing before coming to such conclusion. Where a person is held guilty of unauthorised user of electricity, besides making him responsible for paying penalty in the shape of assessment under the Act, 2003 it also causes stigma on his conduct. He is declared an anti-social person indulging in a serious unsocial activity, by causing loss to the society and country in general and electricity undertaking in particular. Such condemnation of a person would not be permissible on the mere vagaries of the authority i.e. assessing officer unless such a person is given a fair opportunity of hearing i.e. putting his defence before the said authority. This Court is clearly of the view that before making provisional assessment, the assessing officer, in law, is bound to afford an opportunity to the consumer or person concerned of the allegations of means and ways in which he is said to have unauthorizedly used electricity, and, should be given an opportunity of placing his defence. Thereafter the assessing officer shall record its conclusion with respect to unauthorised use of electricity, to confer upon himself the jurisdiction to issue provisional assessment notice. The object of opportunity at the two stages namely, before arriving at the conclusion of unauthorised use of electricity and before making final assessment are distinct. In the former, it is the very issue whether the consumer is guilty of unauthorised use of electricity or not and in later case it is the quantum of amount which he is required to pay as a compensation and a fiscal preventive measure for committing such irregularity. The first one is the stage of finding the person guilty and later one is the stage of determining extent of monetary liability for compensating electrical undertaking qua the alleged unauthorised use of electricity by such persons. It is only when the proceedings are conducted in the above manner, the assessment made can be held valid and not otherwise.
59. It is true that judicial cognizance can/should be taken of the fact that theft of electricity has become a serious menace and a social evil not only in the State of U.P. but in the entire country. The electricity has become a necessity in the present day of society and development of society as well as nation cannot be conceived of without electricity. The availability of electricity however is much in deficiency. A huge amount of electricity, consumed by scrupulous persons is causing a serious loss to public revenue hampering and obstructing the development of electrical sector in particular as well as society and nation in general. Therefore, to check theft of electricity and/or unauthorized use of electricity, stern measures are required to be taken. The various provisions of Act, 2003 shows that the legislature is also concerned about it and has take several measures from time to time including making harsh provisions in the statute.
60. However, this by itself would not justify condemnation and indictment of a citizen or a consumer of electricity by holding him guilty of unauthorized use of electricity on the vagaries of the officers of electrical undertaking unless he is disclosed the manner in which he was found using electricity unauthorizedly on inspection by the officer concerned and given an opportunity to explain his case, if any. It is well settled law that no person can be indicted or condemned without giving a minimal opportunity of hearing. In the case of unauthorized use of electricity found by the assessing officer at any place or the premises etc. or otherwise, the same has to be disclosed to the person concerned giving him an opportunity to put his defence. The principles of natural justice unless excluded by express provision of the Act or by necessary implication cannot be said to be inapplicable when a citizen or person is being indicted of a serious charge, i.e., unauthorized use of electricity, which in some of the cases an offence under Section 135 of Act, 2003.
61. On behalf of the respondents it is argued that in case, such a view is taken, that would amount to delay of issuance of notices and proceedings and may hamper the very objectives of the Act i.e. prevention of theft/unauthorized use of electricity. We are not impressed with the said objection. It is permissible to an 'assessing officer' to cover both the aspects of the matter in the show cause notice, which he is required to issue under sub-section 3 of Section 126 of the Act. The conclusion with respect to unauthorized use of electricity is a condition precedent for issuing provisional assessment notice and, therefore, unless opportunity is given and a finding is recorded whether there is unauthorized use of electricity or not, the question of assessment would not arise. Obviously, no person can come to the conclusion of unauthorized use of electricity suo motu without giving an opportunity to the person concerned and any other procedure would not only be violation of principles of nature justice but would also be arbitrary, infringing Article 14 of the Constitution of India. In order to read Section 126 (1) constitutionally valid, we have no hesitation in observing that before coming to any conclusion the assessing authority would give an opportunity to the person concerned to find out whether he is/was indulged in unauthorized use of electricity.
62. The manner in which we have read section 126(1) and (3) of the Act , 2003, the U.P. Electricity Regulatory Commission (hereinafter referred to as the "UPERC") and the distribution licensees working in the State of U.P., have also understood the same as is evident from the procedure prescribed in the Code, 2005 which has been published by UPERC in exercise of its power under Section 50 of the Act, 2003.
63. 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. 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.
(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."
64. 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. 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.
77. From the above discussion it is also evident that the procedure prescribed in para 6.8 of Code 2005, while issuing provisional assessment notice has not been followed at all. Before issuing a demand notice under Section 3 of 1958 Act, admittedly no final order of assessment as contemplated under para 6.8 (c) (i) and (ii) has been passed by the assessing officer. There is no averment in the counter affidavit that MRI report and its findings were made available to the consumers at the time of inspection or alongwith provisional assessment notice after discussing and substantiating the alleged irregularity as required in para 6.8 (a) (iv) and (v). Therefore, it cannot be said that a valid and proper assessment notice was issued to the petitioners which could have been replied by them effectively. The kind of notice issued to the petitioners mentions only that on 15.01.2008 departmental officers/ enforcement squad found excess load/ theft of energy/other irregularities and, therefore, as per Code, 2005 the assessment to the following effect is made and if they want to give any objection, may file the same within seven days, failing which recovery proceeding would be initiated. This is non compliance of para 6.8 of Code, 2005.
78. Para 6.8 (b) (i) also require assessing officer to give 15 working days time for submission of reply and sub-clause (ii) thereof shows that he shall also fix a date of hearing on which date the consumer shall be heard in person. No such procedure has been followed by the assessing officer in the case in hand, therefore, the impugned provisional notices cannot be sustained being wholly illegal, contrary to the procedure prescribed in para 6.8 of Code, 2005 read with Section 126 of the Act, 2003."
4. We find that neither any show cause notice was issued to petitioner giving details of charge on which assessment was to be made and manner in which assessment was proposed as observed by this Court in Ashok Kumar & others (supra) nor the assessment made in accordance with procedure prescribed in para 8.5 of the Act, 2003. Impugned bill-cum-notice and thereafter, demand notice has been issued under Section 5 of the U.P. Government Electricity Undertaking (Recovery of Dues) Act 1958 (hereinafter referred to as "Act, 1958") which is clearly illegal and not consistent with aforesaid procedure as well as law laid down by this Court.
5. Writ petition is, accordingly, allowed. Impugned bill-cum-notice and demand notice dated 24.3.2006 are hereby set aside. This order shall not preclude respondent to proceed in accordance with law and procedure detailed in judgement of this court in case of Ashok Kumar & others (supra).
Order Date :- 14.10.2019 Ravi Prakash