- (1.) Heard Shri Pramod Kumar Jain, learned Senior Counsel appearing for the petitioner and Shri Baleshwar Chaturvedi, Advocate appearing for the respondents. By this writ petition, the petitioner has prayed for quashing of the order dated 24th February, 2009, which was a theft assessment order. The petitioner has also prayed for a mandamus commanding the respondents to connect the electric supply of the petitioner. Counter and rejoinder affidavits have been exchanged between the parties and with consent of the counsel for the parties, the writ petition is being finally decided. The Division Bench while hearing writ petition on 4th March, 2009 has passed the following interim order: "Heard counsel for the petitioner and Sri H.P. Dube who has put in appearance on behalf of respondent No. 1 to 4. Three weeks' time is allowed to file counter affidavit. Rejoinder affidavit, if any, may be filed two weeks thereafter. List thereafter. Until further orders of this Court the effect and operation of the order dated 24.2.2009 passed by the respondent regarding the provisional assessment shall remain stayed provided the petitioner deposits a sum of Rs. 50,000/- before the respondent No. 4. The respondents are directed to restore the supply power within 24 hours from the date of deposit of the aforesaid amount."
(2.) The Corporation filed a Special Leave to Appeal (Civil) No. 11301 of 2009 against the interim order before the Apex Court. The Apex Court has disposed of the aforesaid Special Leave to Appeal vide its order dated 13.5.2009 permitting the petitioner i.e. Dakshinanchal Vidhut Vitaran Nigam limited to file an application for vacation/modification of the (impugned order) interim order. It appears that Corporation filed an application for vacating interim order on 2nd of July, 2009. The case was listed on several occasions thereafter, but on the request made either by counsel for the petitioner or counsel for the Corporation, the case was adjourned from time to time. Learned counsel for the parties agreed that the petition may be finally decided.
(3.) The brief facts of the case as emerges from the pleadings of the parties are: The petitioner, who is a cold storage, has a sanctioned load from respondent No. 2. A checking of the petitioner's premises was held on 23rd November, 2008 and 27th November, 2008. After checking, first information report was lodged under Section 135 of the Electricity Act against the Director. A provisional assessment was made against the petitioner on 1.12.2008 making assessment of Rs. 47,19,834/-. Thereafter a revised assessment was issued on 23rd January, 2009, by which assessment for Rs. 28,19,340/- was made. The petitioner thereafter filed a writ petition before this Court being Writ Petition No. 6130 of 2009, which was disposed of by the Division Bench of this Court on 4th February, 2009 by the following order: "The petitioner is aggrieved by the provisional assessment order dated 23.1.2009. Sri Mool Behari Saxena, learned counsel for the petitioner has vehemently urged before the Court that the provisions contained in U.P. Electricity Supply Code, 2005 for making provisional assessment has not been followed by the authorities and the impugned assessment is in teeth of clauses 8.1 and 8.2 of the aforesaid code and, therefore, it is unsustainable in law. He has further urged that respondent No. 3 before whom the objection has been filed, is acting in prejudicial manner and he has no hope of justice from respondent No. 3, therefore, the objection filed by him be decided by some other competent authority having same kind of jurisdiction. Sri H.P. Dube learned counsel appearing for the respondents has submitted that pursuant to assessment order the petitioner has already filed an objection before the authority concerned under Section 126(3) of the Electricity Act, 2003. Hence, this writ petition is not maintainable at this stage. We have heard learned counsel for the parties. Considering the facts and circumstances of the case, it is provided that the petitioner's objection which has been filed before respondent No. 3, be decided by any other competent officer except respondent No. 3, for which necessary nomination be made by respondent No. 2 and the entire record be transmitted to the authority nominated by respondent No. 2 and such authority shall decide the same within a period of three weeks from the date of production of a certified copy of this order before him. It is also provided that till the objection of the petitioner is decided, no coercive action shall be taken against the petitioner. With the aforesaid directions, this writ petition is finally disposed of.";