Allahabad High Court
Rizwan Ahmad vs State Of U.P. And 4 Others on 17 August, 2021
Bench: Naheed Ara Moonis, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 3 Case :- WRIT - C No. - 15882 of 2021 Petitioner :- Rizwan Ahmad Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sunil Kumar Srivastava Counsel for Respondent :- C.S.C.,Narendra Kumar Tiwari Hon'ble Naheed Ara Moonis,J.
Hon'ble Saumitra Dayal Singh,J.
Supplementary affidavit filed today is taken on record.
Heard Sri Sunil Kumar Srivastava, learned counsel appearing for the petitioner, Sri Narendra Kumar Tiwari, learned counsel representing respondent nos.3 & 4 and the learned Standing Counsel for respondent nos.1, 2 & 5.
The present petition has been filed to the assessment order dated 13.7.2020 and the consequential recovery citation dated 25.6.2021 seeking recovery of Rs.4,92,419/-.
Upon hearing the learned counsel for the parties, it transpires that on 29.5.2020 an inspection was carried out at the business premises of the petitioner. Theft was detected. Accordingly the provisional demand of Rs.36 lacs was created. At that stage, the petitioner filed a writ petition being Writ-C No.12628 of 2020 which was disposed of by order dated 1.9.2020 allowing the petitioner to file objections to the provisional assessment. The demand of electricity dues was stayed for the period of six weeks. Thereafter, final assessment was made on 12.10.2020 creating a demand of Rs.762,307/-. While the petitioner claims to have deposited the entire demand claimed from him, learned counsel for the power corporation contends that at present, only Rs.6,40,000/- has been deposited by the petitioner. As to the rest, learned counsel states that instructions are not complete.
In any case, another inspection was carried out at the business premises of the petitioner on 26.6.2020. Again theft was detected. It lead to the second provisional assessment order being made in the case of the petitioner demanding Rs.4,92,374/-. At that stage, the petitioner appears to have filed a writ petition being Writ C- No.2076 of 2020 challenging both, the order dated 13.7.2020 (arising from the inspection dated 26.6.2020) as also the final assessment order dated 12.10.2020 (arising out of first inspection dated 29.5.2020). That writ petition was disposed of by the following order dated 18.1.2021:
"Heard learned counsel for the petitioner, learned Standing Counsel for respondents no. 1 & 2 and Shri Chandan Agarwal, learned counsel appearing on behalf of respondents no. 3 to 5.
At the very outset, learned counsel for the petitioner prays that he does not want to press the relief with respect to quashing of the assessment order dated 13.07.2020 and hence to that extent the same may be treated as not pressed. Learned counsel appearing on behalf of the Power Corporation has no objection to the prayer so made. Accordingly, the prayer for quashing the assessment order dated 13.07.2020 is treated as not pressed.
The instant petition has been filed seeking following reliefs :
"(a) issue a writ, order or direction in the nature of writ of certiorari to quash the provisional assessment order dated 13.07.2020 as well as 12.10.2020 issued by respondent no. 04;
(b) issue a writ, order or direction in the nature of writ of mandamus directing the respondents not to take any coercive measure for recovery of electricity dues to the petitioner in pursuance of provisional assessment order dated 13.07.2020 & 12.10.2020 issued by respondent no. 04."
Learned counsel for the petitioner submits that he is ready and willing to deposit the total amount of Rs.7,62,307/- in easy installments. In this regard he has already moved a representation dated 10.11.2020 before respondent no. 4 which is pending consideration.
Shri Chandan Agarwal, learned counsel for respondents no. 3 to 5 submits that the petitioner's grievance for payment of dues in easy installments can be considered and decided under Clause 6.14 of the Electricity Supply Code, 2005, hence some reasonable time may be allowed by this Court.
Considering the aforesaid submissions, without going into the merits of the case, this writ petition is disposed of with a direction to the respondent no. 4 to consider and decide the representation of the petitioner within a period of four weeks from the date a copy of this order is filed before him.
On deposit of first installment as may be fixed by respondent no. 4, electricity connection of the petitioner shall be restored, subject to the condition that further installments shall be paid by the petitioner within the prescribed period as may be fixed. In case of default in payment, the petitioner shall not be entitled to the benefit of this order."
In such circumstances, the present petition has been filed with the following prayer:
"a) Issue a writ, order or direction in the nature of writ of certiorari to quash the assessment order dated 13.7.2020 issued by respondent no.4 as well as recovery citation dated 25.6.2021 issued by respondent no.5.
b) Issue a writ, order o direction in the nature of writ of mandamus directing the respondents not to take any coercive measure for recovery of electricity dues to the petitioner in pursuance of assessment order dated 13.7.2020 issued by respondent no.4 as well as recovery citation dated 25.6.2021 issued by respondent no.5."
The submission of the learned counsel for the petitioner is that second inspection dated 26.6.2020 was wholly malafide and inspection report was prepared without inspection as is apparent from the report dated 13.7.2020 wherein it has been recorded that the premises of the petitioner were found closed and not even the gate was opened at the time of the inspection conducted on 26.6.2020 Therefore, the submission is that the entire proceedings arising from the second search are an eyewash and no real proceeding was conducted.
On the other hand, learned counsel for the power corporation contends that since the gate of the premises of the petitioner was locked from inside, the inspection party could not enter in the premises of the petitioner on 26.6.2020, however, in the inspection note it is duly recorded that the petitioner had connected a tap wire on the main line and, had thus illegally drawn electrical energy that had been disconnected on 29.5.2020, upon the earlier inspection.
Having noted the submissions of the learned counsel for the parties, we find that the present petition is nothing but an abuse of process of the Court. The petitioner had earlier filed a petition being Writ-C No.12628 of 2020 and challenged the very same assessment order. In those proceedings, at the outset, the petitioner did not press the relief sought against the order dated 13.7.2020. That prayer was granted. Liberty was neither sought nor was granted by this Court to challenge that order again. Yet, the present writ petition has been filed against the very same order dated 13.7.2020. Clearly, this is the second writ petition for the same cause. It is not permissible.
Even, otherwise we are not inclined to offer any interference in such a case where on two occasions theft has been detected or alleged that too within a span of one month. The petitioner has been granted enough indulgence on two earlier occasions yet, the conduct of the petitioner has been only to seek some benefit on one pretext or the other. No further room survives for any indulgence being granted to the petitioner. So far as challenge has been raised to the recovery certificate consequent to the order dated 17.6.2020, the same is a consequential relief for which no writ petition is maintainable.
In view of such facts, the writ petition is dismissed with cost Rs.20,000/-.
Order Date :- 17.8.2021 M. Tariq