PALIWAL ALLOYS (PVT) LIMITED vs U. P. POWER CORPORATION LTD.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(All) 2762

[2009(7) ADJ 455 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND R.A. SINGH, JJ.
M/s. PALIWAL ALLOYS (PVT) LIMITED .....Petitioner
Versus
U.P. POWER CORPORATION LTD. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 35248 of 2009, decided on 31st July, 2009)

Advocates:
Counsel :
Ranjit Saxena and Vishal Dixit for the Petitioner; B.P. Singh Dhakrey and H.P. Dubey for the Respondents.

Headnote:(A) (Indian) Electricity Act, 2003—Sections 127(1), 126, 135(1) and 135(1A)—U.P. Electricity Supply Code, 2005—Paragraphs 6.8 and 8.1—Appeal under Section 127(1)—Against order of assessment made in cases of theft of electricity—Filed within 30 days—Maintainable—Section 135(1) which deals with theft of electricity, only explains manners in which theft is to be detected—Section 126 does not exclude assessment in theft cases—Explanation (b) of Section 126, which defines “unauthorised use of electricity”—Is wide enough and covers theft of electricity—Scheme of Act in this regard—Elaborated—Section 135 (1-A) also fortifies this conclusion—There is no provision which provides that theft assessment made under Paragraph 8.1 is not appealable—As such, contention that under Paragraph 8.1 no appeal has been provided in theft cases—Cannot be accepted—Right of appeal under Section 127(1) even in theft cases—Not taken away by Code—Consequently, in view of order passed in appeal, restraining respondents to initiate recovery proceedings for amount assessed for theft of electricity—Respondents cannot initiate recovery proceedings, because that order of appellate authority has not been stayed in S.L.P. before Supreme Court, challenging order of appellate authority, filed by respondents—Several other relevant aspects—Considered and explained. [Paras 22 to 26, 28 and 35]
       (B) Complaint—Statutory complaint relating to electricity dispute—Filed before U.P. Electricity Regulatory Commissioner (U.P.E.R.C.)—Against imposition of penalty for consumption of electricity in peak hours—Not maintainable, as U.P.E.R.C. has no jurisdiction to entertain individual complaints—As such orders passed in that complaint—Without jurisdiction. [Para 29]
       (C) U.P. Electricity Supply Code, 2005—Paragraph 6.15—(Indian) Electricity Act, 2003—Section 56(2)—Recovery—Electricity dues (in the instant case, amount of peak hour penalty)—Bar contained in Paragraph 6.15 and Section 56(2)—Applicability—Peak hour penalty imposed on 27th November, 2006 for period between 24th November, 2002 to 8th February, 2003—Act of 2003 came into force from 10th June, 2003—Although this amount became due prior to enforcement of Act of 2003—Corporation initiated recovery proceedings after expiry of period of bar, i.e., two years and failed to give reasons for such delay—As such, recovery proceedings are barred—But Corporation may proceed in accordance with law. [Paras 31, 32 and 35]
       (D) U.P. Government Electrical Undertakings (Dues Recovery) Act, 1958—Sections 3 and 5—Notice of demand—Sent through registered post—Shall be deemed to be sufficient service on person concerned—Thereafter recovery certificate issued after thirty days—Notice as well as recovery certificate—Not contrary to law. [Para 34]
       (E) Recovery—Electricity dues—Recovery proceedings—Alleged to have been initiated on direction of Court—Found to be not maintainable, as there was no such direction of Court—As such, against law. [Para 10]
       (F) Allahabad High Court Rules, 1952—Chapter XXII, Rule 7—Successive writ petitions—Found to have been filed against different orders—Not barred. [Paras 12, 13 and 15]
       (G) (Indian) Electricity Act, 2003—Section 127—Appeal—Filed before Executive Engineer—Without jurisdiction—It is Divisional Commissioner of Division or Additional Commissioner authorised by Commissioner. [Para 20]

JUDGMENT

By the Court.—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 this writ petition, the petitioner has prayed for quashing the order dated 10th June, 2009 issued by the Executive Engineer, Dakshinanchal Vidyut Vitran Nigam Limited and the citation dated 29th June, 2009 issued by the Tahsildar, Kol, Aligarh.

3. 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 KVA by the respondents. A checking was conducted by the respondents of the premises of the petitioner on 14th June, 2006. A first information report was also lodged against the petitioner. The assessment bill alleging theft of electricity was issued on 13th July, 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 petitioner which was disposed of by a Division Bench of this Court on 3rd August, 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 decision of the appeal, there would be no realization against the petitioner. Against the order dated 3rd August, 2006 the petitioner filed a Special Leave to Appeal (Civil) No. 13533 of 2006, which was dismissed on 25th August, 2006, however, time to deposit Rs. 10,00,000/- was extended by one week. The petitioner thereafter deposited an amount of Rs. 10,00,000/- on 31st August, 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 16th June, 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 3rd August, 2007 in which the Apex Court on 25th September, 2006 issued notice and granted four week’s time to file reply. The said special leave to appeal (Civil) is pending before the Apex Court. On 27th November, 2006 the respondents imposed penalty of Rs. 68,31,808.00 as “peak hour penalty” for the period 24th November, 2002 to 8th February, 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 UPERC). The UPERC passed an order on 27th January, 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 UPERC, filed a First Appeal From Order being FAFO No. 91 of 2007. The said FAFO was heard by the Division Bench of this Court and the Division Bench by order dated 2nd February, 2007 disposed of the FAFO granting six weeks further time to the petitioner to deposit the amount of Rs. 10,00,000/- as directed by the UPERC. 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 14th December, 2007 granted leave.

4. The petitioner again approached the UPERC which on 5th April, 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 5th April, 2007 of the UPERC. The writ petition

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Judicial Analysis

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2009 Supreme(All) 2762

[2009(7) ADJ 455 (DB)]ALLAHABAD HIGH COURTBEFORE : ASHOK BHUSHAN AND R.A. SINGH, JJ.M/s. PALIWAL ALLOYS (PVT) LIMITED .....PetitionerVersusU.P. POWER CORPORATION LTD. AND OTHERS ....Respondents(Civil Misc. Writ Petition No. 35248 of 2009, decided on 31st July, 2009)

Cases Referred (1)

Judicial Analysis

[2009(7) ADJ 455 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND R.A. SINGH, JJ.
M/s. PALIWAL ALLOYS (PVT) LIMITED .....Petitioner
Versus
U.P. POWER CORPORATION LTD. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 35248 of 2009, decided on 31st July, 2009)