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2022 Supreme(All) 550

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SURYA PRAKASH KESARWANI, CHANDRA KUMAR RAI, JJ.
Navi Hasan – Appellant
Versus
Up Power Corporation And Another – Respondent
WRIT -C No. -10825 of 2022
Decided on : 19-07-2022

Advocates:
Advocate Appeared:
For the Appellant : Surya Narayan
For the Respondent: Rajesh Yadav,Pranjal Mehrotra

Headnote:

Electricity Act, 2003 - U.P. Electricity Supply Code, 2005 - Electricity - Quashing Demand Order - Writ petition has been filed praying for following reliefs Issue a writ, order or direction in nature of certiorari quashing demand order passed by Executive Engineer/Prescribed Authority Electricity Distribution Division II, Moradabad filed as Annexure No.1 to this writ petition - Issue a writ, order or direction in nature of mandamus for summing opposite party no.2 Executive Engineer/Prescribed Authority Electricity Distribution Division - Held, In his personal affidavit/counter affidavit, respondent no.2 has stated that he has withdrawn impugned order without disclosing in his counter affidavit, power conferred upon him either under Electricity Act or under U.P. Electricity Supply Code, 2005 to recall/review order - Impugned order has been withdrawn by respondent no.2 during pendency of writ petition and without leave of court - This itself prima facie shows misconduct on part of respondent no.2 - For all reasons aforestated, impugned order is quashed - Respondent no.2 is directed to confront petitioner with all adverse material within ten days from today - Thereafter, petitioner may submit his objection before respondent no.2 within next three weeks - Thereafter, respondent no.2 shall pass a reasoned and speaking assessment order in accordance with law within next four weeks after affording reasonable opportunity of hearing to petitioner - Writ petition is allowed with cost of Rs. 1,00,000/-, which respondent no.2 shall pay to petitioner by account payee cheque or bank draft – Petition allowed.

JUDGMENT :

1. Heard Sri Surya Narayan, learned counsel for the petitioner and Sri Pranjal Mehrotra, learned counsel for the respondents.

2. This writ petition has been filed praying for following reliefs:-

    “I) Issue a writ, order or direction in the nature of certiorari quashing the demand order dated 21.03.2022 passed by the Executive Engineer/Prescribed Authority Electricity Distribution Division II, Moradabad filed as Annexure No.1 to this writ petition. II) Issue a writ, order or direction in the nature of mandamus for summing the opposite party no.2 Executive Engineer/Prescribed Authority Electricity Distribution Division

II, Moradabad and punishing him for non compliance of the order dated 22.10.2021 passed by the Division Bench of this Hon’ble Court in Writ -C No. 26241 of 2021 as well as order dated order dated 18.02.2022 passed in Criminal Misc. Application No. 482 Cr. P.C. No. 25367 of 2021 and relating file of the petitioner may kindly be summoned for considering real controversy”

3. The petitioner has earlier filed Writ-C No. 26241 of 2021 (Navi Hasan Versus U.P. Power Corporation Limited and 2 others), which was disposed of by this Court vide order dated 22.10.2021, the operative portion of aforesaid order is reproduced below:-

    (i) subject to the petitioner depositing a sum of Rs. 25,000/- within a period of one month from today not later than 30 November 2021, the respondent no. 2 shall make available to the petitioner all adverse material that is being relied in support of the communication dated 07.08.2021 (annexed as Annexure No. 1 to the petition);

    (ii) upon being thus confronted with the adverse material, the petitioner shall have a right to file a detailed objection within a further period of two weeks therefrom annexing therewith all material as the petitioner may seek to rely on;

    (iii) upon receipt of such objection, the said respondent no. 2 shall fix a date for hearing in the matter within a period of two weeks therefrom and pass appropriate and reasoned order, strictly in accordance with law, after hearing the parties within a period of one month therefrom.

    For a period of three months from today or till disposal of the aforesaid objection, whichever is earlier, no coercive measure shall be adopted against the petitioner, subject to his complying with the terms of this order.

    All further recovery shall abide by the decision to be made by the respondent no. 2.

    Failing such objection being filed by the petitioner, for any reasons, the only remedy that may remain open to him may be to contest the matter in appeal……...”

4. Despite the aforesaid order, the respondent no.2 has passed the impugned order dated 21.03.2022 in complete disregard to the directions issued by this Court vide aforequoted order dated 22.10.2021 in Writ-C No. 26241 of 202.

5. On 12.07.2022, this Court has passed a detail order and observed as under : -

    “…….We have perused the impugned order and we find that it is pre printed in which merely the name and address of the petitioner, date of notice and amount have been filled up. The conclusion itself are pre printed. Direction of this Court as given in the aforenoted order has been completely ignored consciously. This, prima facie shows gross misconduct on the part of the respondent no.2.

In view of aforesaid, we direct the respondent nos. 1 and 2 to file counter affidavit by means of their personal affidavit within a week, failing which the respondent no.2 shall remain personally present before this Court……..”

6. Today, personal affidavit of the respondent no.1 and counter affidavit by means of personal affidavit of respondent no.2 have been filed by Sri Pranjal Mehrotra, Advocate. In paragraph nos. 4,5, and 6 of the personal affidavit/counter affidavit, the respondent no. 2 has stated as under:-

    “4. That it is respectfully submitted that the respondent no.2 has issued the office Memorandum No. 2951 dated 13.07.2022 cancelling the earlier order No. 10503 dated 21.03.2022 (Annexure No.1 to the writ pe

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