- (1.) By means of this writ petition the petitioner has prayed for quashing of the order dated 02nd February, 2011, annexure No. -7 to the writ petition, as well as demand notice dated 19th January, 2011, annexure No. -8 to the writ petition, issued by the concerned Executive Engineer, respondent no. 2 herein, and further seeks direction upon the respondents to restore supply of electricity of the petitioner and also not to recover the amount in question from the petitioner in any manner including coercive process.
(2.) Briefly stated facts, according to the petitioner, are that he is a consumer of the electricity when Pashchimanchal Vidyut Vitran Nigam Limited (hereinafter in short called as the "Corporation") is the licensing authority. Father of the petitioner obtained electricity connection of 75 HP (56.696 KW) in the year 1978. The meter was installed in the meter room of the petitioner and it was kept in the lock and key of the concerned Executive Engineer of the Corporation. Another double pole meter, which is named as 'check meter', was also installed outside the premises of the petitioner, the purpose of which is to check the tampering of the meter installed at the consumer's premises. On 27th May, 2007, officers of the Corporation visited the premises of the petitioner and disconnected the supply of electricity. Inspection report was served upon the petitioner on 28th May, 2007. According to the petitioner, such inspection was conducted against the provisions of the Uttar Pradesh Electricity Supply Code, 2005 (hereinafter in short called as the "Supply Code") and on the basis of the same the Executive Engineer-respondent no. 2 issued a demand notice dated 01st June, 2007 against the petitioner for a sum of Rs. 22,57,529/- on account of alleged theft of electricity. Against such action of the respondents, a writ petition, being Civil Misc. Writ Petition No. 43872 of 2007 (Smt. Amana Khatoon v. P. V. V. N. L. and others) (number of which has been wrongly mentioned by the petitioner as 13872 of 2007) was filed on behalf of the petitioner, when a Division Bench of this Court by its order dated 18th September, 2007 was pleased to quash the demand notice and directed the concerned authority to issue the provisional assessment order to the petitioner. Such order was served upon the concerned Executive Engineer on 29th September, 2007. However, no provisional assessment order was served upon the petitioner for almost five months. According to the petitioner, when on 31st March, 2008 he made an application for restoring supply of electricity, it is only thereafter that on 07th March, 2008 the provisional assessment order was served upon the petitioner. Challenging such provisional assessment order another writ petition, being Civil Misc. Writ Petition No. 16007 of 2008 (Smt. Amna Khatoon v. PVVNL and another) was filed on behalf of the petitioner. Initially, in such writ petition this Court was pleased to pass an interim order in favour of the petitioner. Against such interim order the respondents Corporation filed a special leave petition, wherein the Supreme Court was pleased to remand the matter back to this Court for disposal within a stipulated period and further directed that till the disposal of the writ petition the interim order passed by this Court shall not be given effect to. Ultimately, on 06th December, 2010 the writ petition was disposed of with the liberty to the petitioner to file objection to the provisional assessment and the respondents were directed to proceed in accordance with law. On 19th January, 2011 the concerned Executive Engineer issued a demand notice to the petitioner for an amount of Rs. 56,67,377/-. On 20th January, 2011 a detailed objection was filed by the petitioner. However, on 02nd February, 2011 the Executive Engineer has allegedly passed an exparte order, impugned herein, without adverting to any inspection report and the submissions made by the petitioner in his written reply and also without affording any opportunity of hearing to the petitioner. The alleged exparte order has been passed assessing the petitioner for a period of 407 days in a hurried manner simply to cause serious prejudice to the petitioner, so that due to the subsequent order passed, the petitioner may not be able to deposit the assessment amount under Section 127(2) of the Electricity Act, 2003 (hereinafter in short called as the "Act") and prefer an appeal. Against this background, the present writ petition has been made.
(3.) Mr. B. C. Rai, learned Counsel appearing for the petitioner, has contended that the assessment order, which is impugned in the present writ petition, has been passed in violation of the settled principles of the Act and the Supply Code. Enlargement of scope of Section 126 (5) of the Act by the Executive Engineer, even prior to amendment of such section, is beyond jurisdiction, as a result whereof it amounts to fraud on statute. Basic principles of natural justice have been denied to the petitioner. Assessment has been made exorbitantly. The impugned order has been passed on the basis of the alleged MRI report even without supplying a copy thereof to the petitioner. On the point of alternative remedy, Mr. Rai has submitted that alternative remedy is no bar for entertaining the writ petition. In support of his contention, he has relied upon the various judgements of the Supreme Court and this High Court reported in (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, 1998 8 SCC 1), (Harbanslal Sahnia and another v. India Oil Corpn. Ltd. and others, 2003 2 SCC 107), (Popcorn Entertainment and another v. City Industrial Development Corpn. and another, 2007 9 SCC 593), (Oriental Bank of Commerce v. State of U. P. and others, 2008 3 ADJ 1), (Ashok Kumar and others v. State of U. P. and others, 2008 6 ADJ 660) and (M/s. Arezzo Developers Private Limited and others v. State of U. P. and another, 2010 6 ADJ 315). He has further submitted that sometimes there is also no bar in entertaining the writ petition in connection with the disputed question of facts in view of the judgements reported in (Smt. Gunwant Kaur and others v. Municipal Committee, Bhatinda and others, 1969 3 SCC 769), (Century Spinning and Manufacturing Company Ltd. and another v. The Ulhasnagar Municipal Council and another, 1970 1 SCC 582), (Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and others, 1974 2 SCC 706), [Kendriya Karamchari Sahkari Grih Nirman Samiti Ltd. , NOIDA, Gautam Budh Nagar, U. P. v. New Okhla Industrial Development Authority (NOIDA), Sector 6, NOIDA, Gautam Budh Nagar, U. P., 2003 3 UPLBEC 2561 ], (ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and others, 2004 3 SCC 553) and (Zonal Manager, Central Bank of India v. Devi Ispat Limited and others, 2010 11 SCC 186).;