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2009 Supreme(All) 1118
HIGH COURT OF ALLAHABAD
RAJIV SHARMA, J.
CITI HOTEL
Versus
COMMISSOINER LUCKNOW DIVN
Decided On : 06 April 2009
W. P. No. 1724 (MS) of 2008
MANOJ KUMAR DWIVEDI,
The central legal point established in the judgment is that the findings of the criminal court and the provisions of the Electricity Supply Code-2005 must be considered in cases of alleged theft of electricity, and failure to do so can lead to the quashing of impugned orders.
Headnote:
Electricity Theft - Appellate Authority's Order - Electricity Supply Code-2002, Electricity Supply Code-2005 - The court discussed the provisions of the Electricity Supply Code-2002 and Electricity Supply Code-2005, highlighting the clauses related to theft of electricity, assessment withdrawal, and restoration of connection. The court emphasized that the findings of the criminal court and the provisions of the Electricity Supply Code-2005 were not considered by the Appellate Authority, leading to a quashing of the impugned orders.
Fact of the Case:
The petitioner, a partnership firm running a hotel, was accused of theft of electrical energy. Despite acquittal by the criminal court, the Appellate Authority upheld the penalty, leading to the filing of the writ petition.
Finding of the Court:
The court found that the Appellate Authority's orders suffered from serious infirmities and quashed the same. It directed the refund of the deposited amount and held the opposite parties liable for interest if the refund was delayed.
Issues: The issues revolved around the alleged theft of electricity, the Appellate Authority's consideration of the criminal court's findings, and the applicability of the Electricity Supply Code-2005.
Ratio Decidendi: The court emphasized that the Appellate Authority failed to consider the findings of the criminal court and the provisions of the Electricity Supply Code-2005, leading to the quashing of the impugned orders.
Final Decision: The writ petition was allowed, and the impugned orders were quashed. The deposited amount was directed to be refunded, with liability for interest on delayed refund resting on the opposite parties.
( 2 ) IN the instant writ petition, the petitioner has inter alia assailed the order dated 18th March, 2008 passed by the commissioner, Lucknow Division, Lucknow inter alia on the ground that the impugned judgment not only suffers from infirmities but is in transgression of the authority vested in him inasmuch as the provisions of the electricity Supply Code 2-5 were not adverted to and without adverting the same, the impugned order has been passed. ( 3 ) PUT it briefly, the essential facts of the case are that the petitioner is a partnership firm carrying on its business under the name and style of M/s. Citi Hotel, Lucknow, and for running the hotel the electrical energy was required and as such connection for supply of electrical energy was applied in the requisite format, which was sanctioned with a load of 40 KW. A meter was also installed in the premises of the hotel. The hotel was utilizing about 36. 110 KW load out of the sanctioned load and was paying the bill regularly. In the hotel, the management was also running a restaurant. One Sri S. C. Jain, Junior Engineer, who was in-charge of the area, used to visit the restaurant, which is within the hotel premises. On 28-5-2002, he along with other persons had taken lunch in the restaurant and when the bill was raised, the said Engineer became annoyed and he raided the premises after few hours along with other officials on the same day implicating the petitioner and its manager in a false theft case. The charge levelled against the petitioner was that they were consuming a load of 88. 75 KW, whereas the sanctioned load was only 40 KW and accordingly provisional assessment order dated 25-6-2002 was passed creating a demand of Rs. 18,16,218/- and further the supply of electrical energy was disconnected. Thereafter prosecution was also launched.
( 4 ) AGAINST disconnection, the petitioner preferred a writ petition, bearing No. 5366 (MB) of 2002, before this Court, which was disposed of finally directions on 9-9-2002. The said judgment reads as under:-
"counter-affidavit filed today be taken on record. Learned counsel for the petitioners states that he would not like to file re-joinder affidavit in this writ petition. With the consent of the parties counsel, the writ petition is being disposed of finally. The grievance in the present petition is regarding a raid conducted by the vigilance squad of the Power Corporation. The allegations have been made against the authorities who conducted the raid with a view to establish mala fides by asserting that actually no raid was conducted but the proceedings are being taken for realization of the amount of the alleged assessment because of vengeance of the authority. The opposite parties have filed a detailed counter-affidavit denying the aforesaid allegations categorically. We do not find anything on record of the writ petition so as to draw any conclusion. We therefore do not adjudicate upon the allegation that whether the raid was actually conducted or not. Learned counsel for the petitioners has submitted that after show-cause notice dated 5th June, 2002 the petitioners requested for certain documents to which reply was given on 30th June, 2002 for submission of his reply against the proposed assessment and the realization of the amount but the said reply has not been considered and the notice dated 5th June, 2002 has not yet been disposed of and the electricity stands disconnected. Learned counsel for the respondents Sri. S. M. K. Chaudhary relying on paragraph 17 of the counter-affidavit has submitted that the letter would be sent to the petitioner indicating the orders which may be passed by the authority in the matter on the notice dated 5th June, 2002. he further submits that the disconnection is an independent matter as the petitioner has been found guilty of theft and non-payment of electricity charges. We do not f
