Ashok Bhushan and R.A.Singh, JJ. - (1.) HEARD Sri Ranjit Saxena and Sri Vishal Dixit, learned counsels appearing for the petitioner and Sri B. P. Singh Dhakrey and Sri H. P. Dubey learned counsel appearing for the respondents.
(2.) BY is writ petition, the petitioner has prayed for quashing the order dated 10.6.2009, issued by the Executive Engineer, Daksinanchal Vidyut Vitran Nigam, Limited and the citation dated 29.6.2009 issued by the Tahsildar, Kol, Aligarh. Brief facts of the case, as emerge from the pleadings of the parties, are; the petitioner, which is a registered company, has been sanctioned load of 1500 K.V.A. by the respondents. A checking was conducted by the respondents of the premises of the petitioner on 14.6.2006. A first information report was also lodged against the petitioner. The assessment bill alleging theft of electricity was issued on 13.7.2006 for an amount of Rs. 84,33,146. Against the aforesaid assessment order a writ petition being Writ Petition No. 38611 of 2006 was filed by the petiREFEtioner which was disposed of by a Division Bench of this Court on 3.8.2006 directing the petitioner to file an appeal and to deposit an amount of Rs. 10,00,000 along with the appeal as provided under the Electricity Act, 2003 within a period of three weeks and the appellate authority was directed to decide the appeal within a period of six weeks thereafter. It was further provided that till the deci sion of the appeal, there would be no realization against the petitioner. Against the order dated 3.8.2006 the petitioner filed a Special Leave to Appeal (Civil) No. 13533 of 2006, which was dismissed on 25.8.2006, however, time to deposit Rs. 10,00,000 was extended by one wee k. The petitioner thereafter deposited an amount of Rs. 10,00,000 on 31.8.2006 and submitted an appeal, which has been registered as Statutory Complaint No. 46 of 2007 under Section 127 of the Electricity Act, 2003. The appeal was admitted on 16.6.2008 and is said to be still pending before the Commissioner, Agra Division, Agra. The corporation also filed Special Leave to Appeal (Civil) No. 15484 of 2006 in the Supreme Court against the Division Bench judgment of this Court dated 3.8.2007 in which the Apex Court on 25.9.2006 issued notice and granted four week' time to file reply. The said special leave to appeal (civil) is pending before the Apex Court. On 27.11.2006 the respondents imposed penalty of Rs. 68,31,808 as "peak hour penalty" for the period 24.11.2002 to 8.2.2003. The petitioner against the peak hour penalty order submitted a complaint being Complaint No. 822 of 2007 before the U. P. Electricity Regulatory Commissioner, Lucknow (hereinafter referred to as U.P.E.R.C.). The U.P.E.R.C. passed an order on 27.1.2007 directing that on deposit of Rs. 5,00,000 electricity shall be restored within 24 hours. It was further directed that petitioner shall deposit an amount of Rs. 10,00,000 within fifteen days. The petitioner, aggrieved by the order of U.P.E.R.C., filed a First Appeal From Order being F.A.F.O. No. 91 of 2007. The said F.A.F.O. was heard by the Division Bench of this Court and the Division Bench by order dated 2.2.2007 disposed of the F.A.F.O. granting six weeks further time to the petitioner to deposit the amount of Rs. 10,00,000 as directed by the U.P.E.R.C. The petitioner did not deposit the amount of Rs. 10,00,000 within the time allowed by the Court. The respondents filed Special Leave to Appeal No. 4594 of 2007 in which the Apex Court on 14.12.2007 granted leave. The petitioner again approached the U.P.E.R.C. which on 5.4.2007 directed the petitioner to deposit the consumption bill and Rs. 10,00,000 for restoration of supply. A writ petition being Writ Petition No. 2376 (MB) of 2007 was filed by the petitioner seeking a direction to the respondents to comply with the order dated 5.4.2007 of the U.P.E.R.C. The writ petition was taken up by the Division Bench on 16.4.2007 and the case was directed to be taken up after two weeks. The U.P.E.R.C. again passed an order on 17.4.2007 directing the respondents to restore the supply within 24 hours on payment of consumption bill and Rs. 10,00,000. A contempt petition being Contempt Petition No. 1262 of 2007 was filed by the corporation alleging contempt while passing the order dated 17.4.2007 by the U.P.E.R.C. The petitioner's electricity connection was again disconnected on 21.1.2008. The petitioner thereafter moved an application before the U.P.E.R.C. to direct the corporation to restore the connection and not to charge fixed demand charge amounting to Rs. 16,20,000 for the period January 2008 to June, 2008 from the petitioner. The petitioner filed another writ petition at the Lucknow Bench of this Court being Writ Petition No. 3393 (MS) of 2008 praying for following relief : "(i) Issue writ, order or direction in the nature of mandamus commanding the respondent/opposite party No. 4 for early disposal of statutory Petition No. R-822 of 2007 filed by the petitioners at the earliest. (ii) Issue writ, order or direction in the nature of mandamus commanding the respondents/opposite parties to restore the electricity supply of the petitioners after accepting Rs. 16,20,000 as fixed demand charge from January 2008 to June, 2008 in two quarterly instalments and after accepting first instalment, the electricity connection of the petitioner be restored. (iii) Issue writ, order or direction in the nature of mandamus commanding the respondent/opposite party No. 4 to decide the interim relief application of the petitioners dated 6.7.2008 at the earliest. (iv) Issue any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case. (v) Allow the petition with cost."
(3.) THE aforesaid writ petition was disposed of by the learned single Judge vide its order dated 16.7.2008 directing that if the petitioner deposits half of the amount as fixed demand charge for the month of January, 2008 to June, 2008, the opposite parties shall restore the electricity connection forthwith. Against the order dated 16.7.2008 the corporation filed a special appeal being Special Appeal No. 478 of 2008. In the said special appeal the Division Bench passed two orders, first on 18.11.2008 directing the Managing Director of the petitioner's company to appeal in person and to explain as to why proceeding for launching criminal prosecution for committing perjury and for committing contempt of the Court be not drawn against him. On 19.11.2008, the Managing Director appeared before the Court. THE Division Bench on the said date, after noticing the submissions of the parties, directed both the parties to file affidavits explaining the correct position as to what cause of action had accrued to the respondents to file subsequent writ petition and what was the notice which was issued/served by the appellants, which gave the cause of action to approach the Court. It has been stated that in pursuance to the order dated 19.11.2008 although corporation has filed its affidavit but no affidavit has been filed by the petitioner although 230 days have elapsed. THE corporation issued notice dated 21.5.2009 to the petitioner under the Uttar Pradesh Government Electrical Undertaking (Dues Recovery) Act, 1958 for an amount of Rs. 2,63,60,300, which notice was sent by the registered post. THE recovery certificate was issued by the Executive Engineer on 25.6.2009 for the aforesaid amount to the Collector, Aligarh and thereafter a consequential citation has been issued by the Tahsildar, Kol, Aligarh on 29.6.2009 directing the petitioner to appear on 12.7.2009 and pay the amount of Rs. 2,63,60,300. This writ petition has been filed by the petitioner for quashing the order dated 10.6.2009 and the citation dated 29.6.2009. Sri Ranjit Saxena, learned counsel for the petitioner in support of the writ petition, raised following submissions : (i) The recovery proceedings have been initiated in pursuance of the order dated 10.6.2009 of the Executive Engineer, which refers to the order of this Court dated 19.11.2008 in Special Appeal No. 478 of 2008, U. P. Power Corporation Limited and others v. Rajesh Paliwal and others, as the basis for initiating the proceedings of recovery of Rs. 2,63,60,300 whereas the Division Bench vide its order dated 19.11.2008 never directed for initiating any recovery, hence the entire proceeding is without any basis. (ii) The amount for which recovery has been initiated includes the amount of Rs. 84,33,146, which was an amount demanded for alleged theft assessment on the basis of the checking dated 14.6.2006 against which assessment the petitioner had filed Writ Petition No. 38611 of 2006 in this Court, which was disposed of by the Division Bench on 3.8.2006 permitting the petitioner to deposit an amount of Rs. 10,00,000 along with the appeal before the appellate authority, which was directed to be decided within six weeks and further it was directed that till the decision of the appeal there shall be no realisation against the petitioner. It is submitted that petitioner filed Special Leave to Appeal (Civil) No. 13533 of 2006 against the said order, which appeal was dismissed but one week time was allowed to the petitioner to deposit the amount and the amount was deposited on 31.8.2006 and the petitioner filed an appeal before the appellate authority, i.e., the Divisional Commissioner. The said appeal was admitted on 16.6.2008 and is being contested by the corporation. It is submitted that the corporation is contesting the appeal and several dates have been fixed in the appellate court, last being fixed as 28.7.2009. He submits that there is no authority or justification with the corporation to proceed with the recovery of the aforesaid amount. (iii) With regard to peak hour penalty, which was imposed by order dated 27.11.2007 for an amount of Rs. 68,31,808 the petitioner has filed statutory complaint before the U.P.E.R.C. being Complaint No. 822 of 2007 in which an order was passed on 27.1.2007 directing restoration of supply of electricity on deposit of Rs. 5,00,000 and further direction was issued for depositing Rs. 10,00,000 within fifteen days against which order F.A.F.O. No. 91 of 2007 was filed in which six weeks further time was allowed for depositing Rs. 10,00,000. Thereafter U.P.E.R.C. passed an order on 5.4.2007 permitting the petitioner to deposit the consumption bill as well as Rs. 10,00,000. Again on 17.4.2007 the U.P.E.R.C. directed for restoration of electricity within 24 hours after payment of consumption bill and Rs. 10,00,000. It is submitted that the said statutory complaint is pending before the U.P.E.R.C. and there being stay of recovery of balance amount by the U.P.E.R.C., it is not open for the respondents to proceed with recovery of the peak hour penalty charges and the impugned recovery, which includes peak hour penalty charges is thus wholly without jurisdiction. It is further submitted that peak hour penalty was imposed for the first time vide order dated 27.11.2007, which penalty was for the period 24.11.2002 to 8.2.2003, i.e., after the period of two years and the same was impermissible by virtue of provisions of paragraph 6.15 of the U. P. Electricity Supply Code, 2005. The consequent recovery is, therefore, impermissible by virtue of provisions of paragraph 6.15 of the U. P. Electricity Supply Code, 2005. (iv) The notice dated 10.6.2009 has been issued to the petitioner directing him to deposit an amount of Rs. 2,63,60,300 within seven days failing which recovery was to take place under Section 5 of the Uttar Pradesh Government Electrical Undertaking (Dues Recovery) Act, 1958. It is submitted that without waiting for 30 days, the recovery certificate was sent to the Collector. The submission is that after giving notice recovery certificate cannot be sent within 30 days, hence the entire proceeding has been held in violation of Section 5 of the Uttar Pradesh Government Electrical Undertaking (Dues Recovery) Act, 1958. (v) Lastly it has been contended that when the judgment in this case was reserved on 21.7.2009 by the Court after hearing both the parties, the respondents proceeded with the recovery proceeding and on 27.7.2009 proceedings were initiated for sale of movable properties of the petitioner including machines etc. and an amount of Rs. 13,27,500 was got deposited on 27.7.2009 as 1/4th amount towards the sale of movable properties. It is submitted that after the judgment having been reserved on 21.7.2009, the respondents ought to have waited for delivery of judgment before proceeding to recover the amount, which was under challenge in this writ petition. ;