- (1.) HEARD Sri B.C. Rai,-learned Counsel for the petitioners and Sri H. P. Dube, learned Counsel for the respondents.
(2.) .This writ petition under Article 226 of the Constitution of India has been filed by the petitioners, IVl/s Hasan Steel and Alloys (Pvt.) Ltd., a company regis tered tinder the Companies Act, 1.956 having its registered office at All - darmiyan, Kairana, Muzaffar nagar through its Director, Sri Anwar Hasan, who is also im-pleaded as petitioner No. 2 in the present writ petition, seeking a writ of certioran for quashing the bill dated 12.3.2008 (Annexure-10 to the writ petition) demanding minimum charge as well as provisional assessment notice dated 31.1.2008 (An-nexure-6 to the writ petition). He has also sought a writ of mandamus declaring the notification dated 27.6.2006 issued by the State Government under Explana tion (a) Section 126 of the Electricity Act, 2003 (hereinafter referred to as the "Act, 2003") as illegal and utra vires and has further sought a mandamus directing respondent No. 2 to restore electric supply of the petitioners and not to make final order of assessment. The facts, in brief, giving rise to the present writ petition are that the peti tioners entered into an agreement for supply of electric energy of 5200 KVA load with Paschimanchal Vidyut Vitran Nigam Limited (hereinafter referred to as the "PWNL") through its Executive Engineer in the year 2005. The electricity con nection was released by installing a 33 KV independent feeder emanating from 220 KV Sub-station, Shamli, District Muzaffarnagar to supply electricity to the petitioners at high tension (in short "H.T.") namely 33-K V. A checking was made at the petitioners' premises on 29.1.2008 by a checking team consisting of eight officials of PWNL who found petitioners indulging in theft of electrical energy in various ways recorded in the checking report, a copy whereof has been placed on record as Annexure-5 to the writ petition. Copy of the checking report along with provisional assessment notice dated 31.1.2008 was issued to petitioners propos ing an assessment of Rs. 1,53,97,943/- directing petitioners to submit their ob jection, if any, by 15.2.2008. The petitioners submitted their objections on 13.2.2008 (Annexure-7 to the writ petition) and also submitted a supplementary objections on 10.3.2008. It is however said that nothing further has proceeded and on the contrary the assessing officer namely, Executive Engineer, PWNL has sent a letter dated 18.2.2008 to the Managing Director, PWNL, Victoria Park seeking his directions with respect to the manner in which final assessment has to be made. He also issued a bill dated nil (Annexure-10 to the writ petition) for the month of February, 2008 requiring petitioners to pay minimum charge of Rs. 22,10,000/- besides some other charges demanding a total sum of Rs. 1,49,75,429/- from the petitioners. Learned Counsel for the petitioners contended : (a) The Executive Engineer, PWNL cannot be an 'assessing officer' un der Explanation (a) of Section 126 of the Act, 2003 since PWNL is neither a licensee under the said Act nor has been granted such licence either under U.P. Electricity Reforms Act, 1999 or Act, 2003 and, therefore, the Executive Engineer of PWNL cannot be an assessing officer for making assessment under Section 126. Accordingly, the State Government's order notifying Ex ecutive Engineer, PVVNL as assessing officer, is ultra vires of the Act and hence the provisional assessment order issued by the said assessing officer is also illegal and without jurisdiction. (b) In any case since the Executive Engineer a statutory authority has to make assessment under Section 126 of the Act, 2003, it is impermissible on his part to seek instructions and guidance from Managing Director, PWNL for making final assessment. He has to apply his mind independently, with out being influenced by any superior authority who has no role to play in the matter of assessment. The assessing officer, therefore, is acting illegally by not passing final order of assessment on its own and instead seeking direc tion from the Managing Director, PWNL and the said procedure adopted by the said' respondent is wholly illegal. (c) The electric supply of petitioners was disconnected on 29.1.2008 and no final assessment has been made till date despite the fact that the peti tioner has submitted reply on the provisional assessment order. Therefore, no demand of any charges for the period electric supply has remain discon nected can be raised from the petitioners even on minimum charge basis and, therefore, the bill (Annexure-10 to the writ petition) is illegal. (d) The provisional assessment has not been made correctly by the assessing officer and, therefore, the provisional assessment order is illegal and liable to be set aside.
(3.) LEARNED Counsel for the respondents have filed their counter affidavit and have said that PWNL is a Government company and, therefore, the State Gov ernment has rightly issued order under Section 126, Explanation (a) of the Act, 2003 notifying Executive Engineers of PWNL as assessing officers. It has fur ther said that since there are some technical aspects on which the Executive Engineer has requested guidelines from the Managing Director, PWNL and, there fore, it cannot be said that the procedure adopted by the assessing officer is illegal. Sri Dube submits that since the matter is still under consideration and has not been finalised, therefore, this Court may not interfere in the present matter at this stage and permit Executive Engineer to make the assessment final expeditiously and within such time as this Court may feel appropriate. We have heard learned Counsels for the parties and perused the record and also the written statements filed on behalf of respondents.;