Deprivation of the right to file objections in respect of the provisional assessment as per the Electricity Act, 2003 and the U.P. Electricity Supply Code, 2005

It appears that a checking was made in the premises of the petitioner on 7.9.2010. Theft of electricity was allegedly detected. Citation dated 10.12.2010 has been issued requiring the petitioner to deposit Rs. 1,14,361/- plus other charges in respect of alleged theft committed by the petitioner.

2. Sri H.P. Dubey, learned counsel appearing for the respondent nos. 1 and 2, was granted time to seek instructions in the matter. He states that the instructions have since been received by him. As per instructions, he states that a provisional assessment dated 18.12.2009 was made which was sent to the petitioner. However, Sri Dubey states that the instructions are silent as to whether the provisional assessment was sent to the petitioner through registered post or ordinary post.

3. Sri Sheo Ram Singh, learned counsel for the petitioner, states that no provisional assessment was received by the petitioner.

4. Sri H.P. Dubey, on the basis of the instructions received, further states that since no objection was filed to the provisional assessment therefore treating provisional assessment as final assessment, demand notice was sent to the petitioner on28.1.2010. He further states that the demand notice was sent to the petitioner by ordinary post.

5. Sri Sheo Ram Singh, learned counsel appearing for the petitioner, states that no demand notice was received by the petitioner.

Sri H.P. Dubey, on the basis of the instructions received by him, further states that a recovery certificate dated 3.11.2010 was sent to the Collector, Azamgarh by the Executive Engineer concerned for making recovery from the petitioner.

Sri Sheo Ram Singh, learned counsel submits that as per requirement the provisional assessment was not given to the petitioner. Hence, the petitioner has been deprived of his right to file objections in respect of the provisional assessment as contemplated under sub-section (3) of Section 126 of the Electricity Act, 2003 readwith clause 8.1 (b)(iii) of the U.P. Electricity Supply Code, 2005.

6. In reply, Sri H.P. Dubey, submits that the requirements of The Electricity Act, 2003 and also of the U.P. Electricity Supply Code 2005 have been followed in the present case and the submissions made on behalf of the petitioner are not correct.

7. We have considered the submissions made by learned counsel for the parties.

From the instructions received by Sri H.P. Dubey, it is evident that the provisional assessment was not sent to the petitioner in the mode as laid down in clause 9.3 of the U.P. State Electricity Supply Code, 2005. It has specifically been stated on behalf of the petitioner that no provisional assessment was received by him. Thus, the petitioner has been deprived of his right to file objections in respect of the provisional assessment as contemplated under sub-section (3) of Section 126 of the Electricity Act, 2003 readwith clause 8.1 (b)(iii) of the U.P. Electricity Supply Code, 2005.

8Sri H.P. Dubey, has today supplied to the learned counsel for the petitioner a copy of the provisional assessment dated 18.12.2009 alongwith copy of the checking report dated 7.9.2009.

8. In view of the above, we are of the opinion that the interest of justice would be subserved in case the petitioner is given an opportunity of filing objections against the aforesaid provisional assessment dated 18.12.2009 before the Executive Engineer concerned, respondent no. 2, alongwith certified copy of the order.

9. We accordingly dispose of the writ petition with the following directions :

1. Within six weeks from today, the petitioner will file objections against the aforesaid provisional assessment dated 18.12.2009 before the Executive Engineer concerned (respondent no. 2) alongwith a certified copy of this order.

2. The Executive Engineer concerned (respondent no. 2) will decide the objections submitted by the petitioner, by passing a reasoned and speaking order, in accordance with law after giving reasonable opportunity of hearing to the peti