Allahabad High Court
Prakash Chandra Gupta vs State Of U.P. And 2 Others on 23 September, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:154585 Reserved On:22.8.2024 Delivered On:23.9.2024 Court No. - 33 Case :- WRIT - C No. - 10822 of 2021 Petitioner :- Prakash Chandra Gupta Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Bidhan Chandra Rai,Jata Shankar Pandey Counsel for Respondent :- Baleshwar Chaturvedi,C.S.C. Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Bidhan Chandra Rai, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Ashutosh Dwivedi, Advocate holding brief of Mr. Baleshwar Chaturvedi, learned counsel for respondent no.4.
2. Brief facts of the case are that petitioner is manufacturer of glass lamp shades, lighting fixtures, hand crafted glass. Petitioner has obtained an electricity connection with the contracted load of 42.88 K.V.A. bearing electricity connection no.5969, H.V.-2. The aforementioned electricity connection of the petitioner is situated at Jain Nagar, Agra Gate, Firozabad. Respondent no.4 has installed the meter bearing meter no.UPP09227 with ceiling certificate no.3/8 dated 9.11.2004. Respondent no.4 has further installed the check meter on 19.12.2005 bearing meter no.UPE81331 in parallel to the main meter. Petitioner made a representation before respondent no.4 to remove the check meter and the S.D.O./ Assistant Engineer has made an endorsement that check meter which was installed in parallel of main meter be removed. On 31.10.2009, M.R.I. of main meter and check meter was done by the Assistant Engineer Meter and check meter. On 16.2.2010, respondent no.4 has installed the pole meter no.UPD00939. On 9.6.2010, check meter no.UPE81331 was converted into the main meter by ceiling certificate no.931/11. Respondent no.4 has given electricity bill to the petitioner for the period 1.7.2010 to 31.7.2010 by showing arrears of Rs.6,66,671/-. Petitioner filed an objection on 10.8.2010 stating to give detail of the bill. Respondent no.4 has given report that main meter is slow by 34.62% from check meter. Respondent no.4 has given a detail of the arrear of bill to the petitioner, accordingly, petitioner has filed another objection on 6.9.2010 and prayed to reject the bill in which Rs.6,52,172/- was shown as arrears and requested to issue correct bill to the petitioner. Respondent no.4 has not decided the objection of the petitioner dated 6.9.2010, hence petitioner has given a cheque of Rs.52,240/- towards current bill, which was returned with the remark that whole amount of the bill is Rs.7,20,250/-, hence cheque issued by petitioner will not be accepted. Petitioner has again given cheque of Rs.67,229/- on 1.10.2010, which was received by the department on 1.10.2010. Respondent no.4 has not decided the petitioner's objection dated 6.9.2010, hence petitioner has filed Writ- C No.62972 of 2010 before this Court and this Court vide order dated 1.11.2010 has directed the respondent to accept the payment of current bill of the petitioner and decide the objection of the petitioner dated 6.9.2010 within period of four weeks. On 20.6.2011, meter no.UPE81331 was found 67.4% slow by pole meter no.UPD00929. Respondent no.4 has decided the petitioner's objection dated 6.9.2010 vide order dated 14.5.2013. Respondent no.4 has issued recovery certificate of Rs.23,21,150/- on 27.1.2016 against the petitioner, accordingly, petitioner has filed complaint before respondent no.3 / Electricity Consumer Grievance Redressal Forum, Agra Region, Agra, which was registered as complaint case no.13-F/ 2016 before respondent no.3. Respondent no.4 has disconnected the electricity connection of the petitioner on 11.2.2016. On deposit of Rs.4,00,000/- on 12.2.2016 by the petitioner, the electricity connection of the petitioner was reconnected after taking necessary charges from the petitioner. Respondent no.4 again disconnected the connection of the petitioner and after deposit of Rs.2,00,000/- on 10.11.2020 connection was reconnected. Respondent no.3 has decided the complaint of the petitioner vide order dated 26.9.2016 against the petitioner. Petitioner has challenged the order dated 26.9.2016 by way of representation / appeal before respondent no.2 / Electricity Ombudsman, U.P. Sitting at Lucknow, which was registered as representation / appeal no.228 of 2017. Respondent no.4 has filed his reply in the aforementioned representation / appeal. Respondent no.2 has decided the representation/ appeal vide order dated 8.2.2021, hence this writ petition for the following reliefs:
"i. issue, a writ, order or direction in the nature of certiorari to quash the impugned order dated 26.9.2016 passed by respondent no.3 in Complaint No.13F/16, Prakash Chandra Gupta vs. Executive Engineer Vidhyut Nagriya Vitran Division-I, Firozabad and impugned order dated 8.2.2021 passed by respondent no.2 in Representation / Appeal No.228/ 2017, Prakash Chandra Gupta vs. Executive Engineer Vidhyut Ngariya Vitran Division-I, Firozabad and impunged recovery certificate of Rs.23,21,150/- dated 27.1.2016 issued by respondent no.4 (contained as Annexure No.21 and 24 and 17 to this writ petition).
ii. issue, a writ, order or direction in the nature of mandamus commanding the respondent no.4 to connect the electricity connection of the petitioner which was disconnected on 8.3.2021 and continue to realize the current bill of every month.
iii. issue a writ, order or direction in the nature of mandamus commanding the respondent no.4 to issue correct bill after adjusting the paid electricity bills by the petitioner."
3. This Court vide order dated 2.7.2021 entertained the matter and directed learned counsel for respondent no.5 to file counter affidavit, accordingly, affidavits are exchanged between the parties.
4. Learned counsel for the petitioner submitted that the impugned orders have been passed in arbitrary manner. He further submitted that in pursuance of the earlier order of this Court dated 1.11.2010, respondent no.4 has decided the objection of the petitioner dated 6.9.2010 without any opportunity of hearing to the petitioner. He further submitted that recovery certificate for Rs.23,21,150/- has been issued against the petitioner without deciding the objection of the petitioner in proper manner. He further submitted that Clause 5.6 (e) of the U.P. Electricity Supply Code, 2005 (hereinafter referred to as "Code of 2005") has not been followed in passing the impugned order, as such, the impugned orders are wholly illegal. He further submitted that the impugned order has been passed on the basis of the provisions contained under 56 (ii) of the U.P. Electricity Act, 2003 (hereinafter referred to as "Act of 2003") without considering the provisions of Clause 5.6 (e) of the Code of 2005, which are mandatory in nature. He further submitted that respondent nos.2 & 3 have failed to consider that each and every month junior engineer has taken the reading of the main meter and check meter and prepared the electricity bill, hence it was well within the knowledge of respondent no.4 to remove the check meter which was installed in the connection of the consumer. He further submitted that against the order dated 26.9.2016 passed by respondent no.3 in Complaint No.13-F / 16 representation / appeal was filed by the petitioner and there was no challenge by respondent no.4 in respect to the order dated 26.9.2016, as such, relief which was granted to the petitioner cannot be withdrawn in the proceeding initiated by the petitioner. He placed reliance upon the following judgments of Hon'ble Apex Court in support of his argument:
"i. (2010) 12 Supreme Court Cases 471, Shiba Shankar Mohapatra and Others Vs. State of Orissa and Others.
ii. (2008) 17 Supreme Court Cases 491, Bachhaj Nahar vs. Nilima Mandal and Another.
iii. (2007) 10 Supreme Court Cases 712, Union of India and Others vs. Jai Prakash Singh and Another.
iv. (2003) 8 Supreme Court Cases 40, V.K. Majotra vs. Union of India and Others.
v. (2009) 12 Supreme Court Cases 272, D.P. Kesari and Another vs. Board of Directors of Allahabad Agricultural Institute.
vi. (1998) 9 Supreme Court Cases 138, Authorised Officer (Land Reforms) vs. M.M. Krishnamurthy Chetty."
5. On the other hand, learned counsel for respondent no.4 submitted that there is no illegality in the impugned order. He further submitted that proper opportunity was afforded to the petitioner while passing the impugned order. He further submitted that objection filed by the petitioner has been properly considered while passing the impugned order. He further submitted that the provision of Section 56 (ii) of the Act of 2003 has been rightly considered by the authorities while passing the impugned orders, as such, no interference is required in the matter.
6. I have considered the argument advanced by learned counsel for the parties and perused the records.
7. There is no dispute about the fact that the claim of the petitioner has been rejected under the impugned orders.
8. In order to appreciate the controversy involved in the matter, perusal of Clause 5.6 (e) of the Code of 2005 will be relevant, which is as under:
"5.6 Defective Meters
(e) In case a check meter is installed, and if after 7-15 days of the period of test, the existing meter is found to be fast or slow beyond the permissible limits, and the test results are not disputed by the consumer, then the same would be removed leaving the check meter in its place for future metering, and bills of previous three months prior to the month in which the dispute has arisen shall be adjusted in the next bill as per the test results. Where the test results are disputed, the procedure as per clause 5.6(c) as above, as the case may be, shall be followed."
9. Perusal of the objection of the petitioner dated 6.9.2010 will be also relevant, which is as under:
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10. The order impugned passed by respondent no.3 demonstrates that there is no proper consideration of the petitioner's claim in the light of the provisions contained under the Clause 5.6 (e) of the Code of 2005 as well as the proper opportunity has also not been afforded to the petitioner before passing the impugned order by respondent no.3. The perusal of the appellate order demonstrates that the appellate Court has also exceeded his jurisdiction in deciding the matter to the extent that in absence of any appeal by respondent no.4, the relief which was granted to petitioner under the order of respondent no.3 has been taken away.
11. Hon'ble Apex Court in the Case of Authorised Officer (Land Reforms) (supra) has held as under:
"1. This appeal has been filed on behalf of the Authorised Officer under the Tamil Nadu Land Reforms (Fixation of Ceiling of Land) Act, 1961 for setting aside the judgment of the learned Judge of the High Court of Madras. It appears that about 4.81 standard acres of lands belonging to the respondent were declared surplus. Ultimately the matter came to the High Court. A learned Judge of the High Court set aside the orders passed by the authorities concerned and remanded the case for fresh consideration in the light of the judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer. While the matter was pending before the Authorised Officer this Court reversed the aforesaid judgment in Naganatha Ayyar v. Authorised Officer in the case of Authorised Officer v. S. Naganatha Ayyar. The Authorised Officer decided the ceiling proceedings in the light of the judgment of this Court. The landholder went in revision before the High Court challenging the order of the Authorised Officer. A stand was taken before the High Court that the order of remand passed by the High Court directing the Authorised Officer to decide the dispute in respect of the ceiling area in the light of the judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer was not challenged by the Authorised Officer before the Supreme Court and as such it had become final. In other words the Authorised Officer was bound by the order of remand passed by the High Court and it was not open to the Authorised Officer to consider the dispute in respect of the ceiling area in the light of the judgment of this Court. The High Court accepted this contention and allowed the civil revision filed by the landholder, the respondent.
2. According to the appellant once the judgment on the basis of which the High Court had directed to dispose of the dispute relating to the excess land had been reversed by this Court, the Authorised Officer was justified in following the judgment of this Court instead of the judgment of the High Court. It need not be pointed out that the order passed by the High Court attained finality as it was not challenged before the Supreme Court. The order passed by the High Court directing the Authorised Officer to examine the dispute in the light of the judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer 84 LW 69 became final although the judgment on which the grievance had to be examined itself was reversed later by this Court. We find no fault with the reasoning of the High Court. It is well settled that even orders which may not be strictly legal become final and are binding between the parties if they are not challenged before the superior courts. In the result the appeal fails and it is dismissed. No costs."
12. The perusal of the judgment of Hon'ble Apex Court demonstrates that the dispute which has attained finality cannot be reopened by the authority/ Court.
13. In the instant matter, respondent no.2 has exceeded jurisdiction while passing the impugned order dated 8.2.2021 by which the part of the relief granted to petitioner has been taken away although there was no appeal or representation by respondent no.4 before respondent no.2.
13. Considering the entire facts and circumstances of the case, the impugned orders dated 26.9.2016 passed by respondent no.3 and 8.2.2021 passed by respondent no.2 are liable to set aside and the same are hereby set aside. The citation dated 31.5.2021 & 27.1.2016 issued by respondent nos.6 & 4 respectively in pursuance of the aforementioned orders are also set aside.
14. The writ petition stands allowed and the matter is remitted back before respondent no.3/ Electricity Consumer Grievance Redressal Forum, Agra to decide the complaint no.13-F/16 after affording proper opportunity of hearing to the petitioner in the light of the observation made in the body of the judgment, expeditiously preferably within a period of six weeks from the date of production of certified copy of this order before respondent no.3. It is made clear that relief which was granted in part to petitioner cannot be withdrawn by respondent no.3 as there is no appeal or writ petition at the instance of respondent no.4 against the order dated 26.9.2016 passed by respondent no.3.
15. No order as to costs.
Order Date :- 23.9.2024 Rameez