Kailash Chandra Sharma vs Paschimanchal Vidyut Vitran Nigam Ltd And Ors

Court No. - 1

Case :- WRIT - C No. - 67360 of 2009 Petitioner :- Kailash Chandra Sharma Respondent :- Paschimanchal Vidyut Vitran Nigam Ltd. And Ors.

Counsel for Petitioner :- Punit Kumar Gupta Counsel for Respondent :- C.S.C.,Nripendra Mishra,Pankaj Kr. Shukla

Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.

Sri Surendra Kumar holding brief of Sri Punit Kumar Gupta, learned counsel for the petitioner, Sri Nripendra Mishra, learned counsel appearing for respondent Nos.1 and 2, learned Standing Counsel for respondent No.3 and perused the record.

By means of this petition filed under Article 226 of the Constitution of India the petitioner has assailed the order dated 26.06.2009 which is in the nature of final assessment order pursuant to which an undated recovery has also come to be issued for a sum of Rs.18,43,592/-. It has been specifically pleaded in the writ petition that while checking was conducted on the spot by the officials of the respondent-Corporation, copies thereof was not supplied to the petitioner nor, the petitioner was ever supplied with the provisional assessment order. Consequently, petitioner was denied the chance to submit reply or file any objection to the provisional assessment order. Specific ground has been taken in the writ petition vide paragraph 20 in which it has been stated clearly that the provision as contained under Clauses 6.8 and 8.1 of the U.P. Electricity Supply Code, 2005 had been virtually violated and thus, the procedure prescribed in law for preparation of final assessment order has not been complied with. We further find that the notice of checking report, which has been appended as Annexure 3 to the writ petition, does not indicate any service upon the petitioner except the note that the petitioner or his representative had left the place. We fail to understand that, even if, the petitioner or his representative had left the place, what restrained the respondent-Corporation from supplying a copy of the checking report to the petitioner to enable him to submit a proper reply and, therefore, prima facie, the case to that effect certainly made out that the petitioner was not supplied with the necessary requisite papers to file his objection before a final assessment order is passed. A reply has been submitted in the counter affidavit vide para 13 which runs as under:

"13. That the contents of paragraph No.20 to 22 of the writ petition are false and vehemently denied. In reply thereto is that the department has made assessment accordingly with law."

From the reading of paragraph 13 it is clearly revealed that it is nature of evasive reply as denial simplicitor has been made. Further from the perusal of the order impugned which is in the nature of the final assessment order dated 26.06.2009, which has been appended as Annexure 7 to the writ petition, it is not reflective of any opportunity being offered to the petitioner except that the checking report was conducted and on the basis of that a provisional assessment was made.

Having heard learned counsel for the parties and their arguments across the Bar and having perused the documents which have been brought on record and the pleadings raised in the writ petition and in reply thereto the counter affidavit, we are of the considered opinion that the order dated 26.06.2009 has been passed in violation of procedure prescribed under the U.P. Electricity Code, 2005 and therefore, the same cannot be sustained. The consequential recovery citation/order, which is quit undated for a sum of Rs.18,43,592/- can equally not be sustained. Both the orders are, accordingly set aside. However, the matter is left open for the respondent- Corporation to proceed afresh by supplying necessary requisite papers to the petitioner within a period of two weeks from the date of production of a certified copy of this order. The petitioner shall submit reply to the same in the form of objection along with whatever material he wants to place before the Corporation Authority. On the such objection being received, the Competent Authority shall decide the matter finally within a further period of four weeks by reasoned and speaking order.

The writ petition stands allowed to the extent indicated hereinabove.

Order Date :- 13.8.2019 Nitin Verma (Ajit Kumar, J.) (Ramesh Sinha, J.)