- (1.) AMITAVA Lala, J. The writ petitioner has challenged the notice dated 27th July, 2007 by which a demand has been made for a sum of Rs. 86,46,221/- (Rs. Eighty Six Lacs Forty Six Thousand Two Hundred Twenty One) on account of alleged unauthorised use of electricity. By challenging such order learned Counsel appearing for the appellant contended before this Court that the order impugned is not backed by any reason. However, we find from an earlier order of a Division Bench of this Court in disposing of the case of the petitioner in writ petition No. 32391 of 2007, M/s Mohit Paper Mills Ltd. v. State of U. P. & Ors. , dated 27th July, 2007 that the petitioner was directed to file the objection to the authority concerned for the purpose of final assessment with an observation that in case the petitioner is by any means aggrieved from the final assessment order, he may file an appeal under Section 127 of the Act. In such order the Division Bench was pleased to direct the petitioner to deposit a sum of Rs. 10,00,000/- (Rupees ten lacs ).
(2.) ACCORDING to learned Counsel appearing for the U. P. Power Corporation, there is a provision of appeal under Section 127 of the Electricity Act, 2003. He further contended that as per requirement of such section the aggrieved person could have filed an appeal initially upon deposit of 1/3 of the assessed amount which by amendment has been enhanced to the extent of 50% of the assessed amount. Learned Counsel appearing for the petitioner contended that since the order is not backed by any reason, alternative remedy is no bar for deciding necessary point involved for adjudication by the High Court under Article 226 of the Constitution of India. He has also cited a judgment reported in AIR 1990 SC 1984, S. N. Mukherjee v. Union of India, to establish that administrative action must be supported by the reasons. In case there is no such reason, the order impugned can be challenged before the writ Court irrespective of having any alternative remedy. We are of the view that there are two ways of looking at the matter. Whether there is no reason at all or the notice is not backed by any reason. If there is no reason, definitely the writ jurisdiction can be invoked but when the reasons are not indicated in the notice but backed by it in the relevant documents, it cannot be construed that there is no reason. Paragraph 3 of such notice is backed indications of reasons. Therefore, it can be safely presumed that reasons for the purpose of due consideration are available in the record. The further variable point is that a Division Bench of this High Court when in the self same matter directed that the petitioner can challenge the final assessment by preferring an appeal, appeal is the best process of remedy for the purpose of compliance of the order. However, in the appeal the petitioner will not be debarred from raising such point. Therefore, upon going through the pros and cons, we are of the view that the appeal is the appropriate forum for adjudication of the case of the petitioner.
(3.) THE petitioner further contended before the Court that there should be independency of the appeal, if it is preferred. We have come to know from the learned Counsel appearing for the Power Corporation that in accordance with present law the Divisional Commissioner of the concerned division is the appropriate authority for hearing the appeal. Under no stretch of imagination such Commissioner can be said to be the departmental authority so that the petitioner can have apprehension. Under such circumstance the point which has also been taken by the petitioner, cannot be sustained. However, for the purpose of preferring the appeal, there is a provision of pre-deposit, as aforesaid. A sum of Rs. 10,00,000/- (Rs. Ten lacs) has already been deposited as per the earlier order. We find a sum of Rs. 33,23,110 (Thirty Three Lacs Twenty Three Thousand One Hundred Ten) would be the 50% of the claim amount. Hence, deducting said sum of Rs. 10,00,000 (Rs. Ten lacs), one half of the balance by cash and another by way of bank guarantee, will be deposited with the authority within a period of one month from the date of communication of this order. However, the bank guarantee will be renewed time to time by the authority, until encashed.;