# Dr. Munni Lal v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 591
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-19
- **Case number:** Civil Misc. Writ Petition No. 21243 of 2011
- **Bench:** Satya Poot Mehrotra, Mrs. Jayashree Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-munni-lal-v-state-of-u-p-and-others-41932
- **Pages:** 7

## Headnote

Supply-Code-2005Section-8.1
(b)
(iii)
readwith
U.P.
Government Electrical (under-taking)-
(Dues
recovery)-Act
1958-Section-3checking
note
of
the
Premises
of
petitioner does not bear signature of
consumer-notice presiding 7 days for
objection-ignoring statutory period of 15
days-without specifying date, place and
time of hearing -without final order of
assessment-No
demand
notice
be
issued-demand
notice
quashed
with
necessary direction.

Held: Para 18, 19 and 20

No Final Order of Assessment was
passed in the case of the petitioner.
Instead, a Demand Notice dated 26th
592 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
October, 2010 was also enclosed with
the
Show
Cause-Notice
dated
29th
October, 2010. The occasion for issuance
of Demand Notice under Section 3 of the
U.P. Government Electrical Under-Taking
(Dues Recovery) Act, 1958 would have
arisen only after the Final Order of
Assessment were passed in respect of
the petitioner.

It
will
thus
be
noticed
that
the
respondent nos. 2 and 3 have not
followed the procedure as laid down in
the Electricity Act, 2003 and the U.P.
Electricity Supply Code, 2005 before
issuing the Demand Notice dated 26th
October, 2010.

In view of the above, the Demand Notice
dated 26th October, 2010 (appearing at
page 27 of the Paper-Book of the Writ
Petition) issued under Section 3 of the
U.P. Government Electrical Under-Taking
(Dues Recovery) Act, 1958 is liable to be
quashed,
and
the
same
is
hereby
quashed.

## Text

2 All] Dr. Munni Lal V. State of U.P. and others
591
time, then his candidature will be cancelled
and draw will be held again from the
remaining qualified eligible candidates to
select the next candidate following the
procedure as mentioned above in para 12.3
to 12.6."

9. There is another paragraph, being
Paragraph 15, in the brochure, which
provides for consideration of the grievance
or complaint by the redressal system of the
oil company itself.

10. Against this background, factually
when we find that the cancellation order
was passed on 10th March, 2011 and the
same was sent to the petitioner through
registered post on 15th March, 2011, and in
between these two dates news item was
published on 11th March, 2011 and
subsequent selection was held on 14th
March, 2011 by selecting the respondent no.
3 herein, such exercise appears to be
contrary to the interest of a selected
candidate. No specified time has been given
to the petitioner to explain the position as
mentioned in the order of cancellation dated
10th March, 2011 pursuant to such
Paragraph 12.10, the petitioner is entitled to
file her grievance before the concerned
redressal system within seven days from the
date of obtaining certified copy of this order
to get an opportunity of hearing and if she
does so, the authority concerned will
consider the cause and finalise the issue
within a period of seven days thereafter.
Only after consideration of the grievance of
the petitioner, the authority concerned will
be entitled to call upon the respondent no. 3
to verify her record too to evaluate her right
over the land. However, no letter of intent
will be issued, if not already issued, to any
candidate. In case letter of intent has already
been issued, no letter of appointment will be
issued for such period.

11. Accordingly, the writ petition is
disposed of.

No order is passed as to costs.

12. Let the copies of the necessary
documents
and/or
written
notes
of
argument, as submitted by the parties before
this Court, be kept with the record.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2011

BEFORE
THE HON'BLE SATYA POOT MEHROTRA,J.
THE HON'BLE MRS. JAYASHREE TIWARI,J.

Civil Misc. Writ Petition No. 21243 of 2011

Dr. Munni Lal

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.K. Dubey

Counsel for the Respondent:
C.S.C.
Sri Mridul Tripathi

U.P.
Electricity
Supply-Code-2005Section-8.1
(b)
(iii)
readwith
U.P.
Government Electrical (under-taking)-
(Dues
recovery)-Act
1958-Section-3checking
note
of
the
Premises
of
petitioner does not bear signature of
consumer-notice presiding 7 days for
objection-ignoring statutory period of 15
days-without specifying date, place and
time of hearing -without final order of
assessment-No
demand
notice
be
issued-demand
notice
quashed
with
necessary direction.

Held: Para 18, 19 and 20

No Final Order of Assessment was
passed in the case of the petitioner.
Instead, a Demand Notice dated 26th
592 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
October, 2010 was also enclosed with
the
Show
Cause-Notice
dated
29th
October, 2010. The occasion for issuance
of Demand Notice under Section 3 of the
U.P. Government Electrical Under-Taking
(Dues Recovery) Act, 1958 would have
arisen only after the Final Order of
Assessment were passed in respect of
the petitioner.

It
will
thus
be
noticed
that
the
respondent nos. 2 and 3 have not
followed the procedure as laid down in
the Electricity Act, 2003 and the U.P.
Electricity Supply Code, 2005 before
issuing the Demand Notice dated 26th
October, 2010.

In view of the above, the Demand Notice
dated 26th October, 2010 (appearing at
page 27 of the Paper-Book of the Writ
Petition) issued under Section 3 of the
U.P. Government Electrical Under-Taking
(Dues Recovery) Act, 1958 is liable to be
quashed,
and
the
same
is
hereby
quashed.

(Delivered by Hon'ble S.P. Mehrotra,J.)

1. The petitioner has filed the
present Writ Petition under Article 226
of the Constitution of India, inter-alia,
praying for quashing the Demand
Notice
dated
29th
October,
2010
(Annexurre 5 to the Writ Petition)
issued by the respondent no.3 requiring
the petitioner to deposit an amount of
Rs. 1,84,892/-.

2. It appears that checking was
allegedly made in the premises of the
petitioner on 22nd October, 2010, and
theft
of
electricity
was
allegedly
detected. Copy of the Checking Report
dated 22nd October, 2010 has been filed
as Annexure 4 to the Writ Petition. The
said Checking Report does not bear the
signature of the consumer (petitioner).

3. It further appears that a Notice
dated 29th October, 2010 (appearing at
page 26 of the Paper-Book of the Writ
Petition) was sent to the petitioner,
inter-alia, stating that an amount of Rs.
1,84,892/- was provisionally assessed
against the petitioner, and in case the
petitioner wanted to file any objections,
the same be done within seven days of
the issuance of the said Notice dated
29th October, 2010. A Demand Notice
dated 26th October, 2010 (appearing at
page 27 of the Paper-Book of the Writ
Petition) under Section 3 of the U.P.
Government Electrical Under-Taking
(Dues Recovery) Act, 1958 was also
enclosed with the said Notice dated 29th
October, 2010. A Bill dated 26th
October, 2010 (appearing at page 28 of
the Paper-Book of the Writ Petition)
showing the calculation in respect of the
Provisional
Assessment
was
also
enclosed with the said Notice dated 29th
October, 2010.

4. The petitioner has thereupon
filed the present Writ Petition seeking
the reliefs as mentioned above.

5. We have heard Shri R.K.
Dubey,
learned
counsel
for
the
petitioner, the learned Standing Counsel
appearing for the respondent no.1 and
Smt. Mridul Tripathi, learned counsel
for the respondent nos. 2 and 3, and
perused the record.

6. Smt. Mridul Tripathi, learned
counsel for the respondent nos. 2 and 3
has obtained instructions in the matter.

7. Shri R.K. Dubey, learned
counsel for the petitioner has referred to
various provisions contained in the
Electricity Act, 2003 and the U.P.
2 All] Dr. Munni Lal V. State of U.P. and others
593
Electricity Supply Code, 2005, and has
submitted that the procedure laid down
in the said provisions has not been
followed in case of the petitioner.

8. It is submitted that the Notice
dated 29th October, 2010 was issued to
the petitioner giving only seven days
time for filing objections while the
provisions contained in Clause 8.1 (b)
(iii) require Show Cause-Notice giving
15 working
days time for
filing
objections.

9. It is further submitted that the
Demand Notice under Section 3 of the
U.P. Government Electrical UnderTaking (Dues Recovery) Act, 1958 was
issued on 26th October, 2010 even
without waiting for the objections to be
filed by the petitioner against the
Provisional Assessment and disposing
of the same in accordance with the
relevant provisions of the Electricity
Act, 2003 and the U.P. Electricity
Supply Code, 2005.

10. In reply, Smt. Mridul Tripathi,
learned counsel for the respondent nos.
2 and 3 submits that the procedure as
laid down in the Electricity Act, 2003
and the U.P. Electricity Supply Code,
2005 has been followed in the present
case.

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

Section 126 of the Electricity Act,
2003 lays down as follows:

"126. Assessment.-(1) If on an
inspection of any place or premises or
after inspection of the equipments,
gadgets,
machines,
devices
found
connected or used, or after inspection of
records maintained by any person, the
assessing
officer
comes
to
the
conclusion that such person is indulging
in unauthorized use of electricity, he
shall provisionally assess to the best of
his judgement the electricity charges
payable by such person or by any other
person benefited by such use.

(2)
The
order
of
provisional
assessment shall be served upon the
person in occupation or possession or in
charge of the place or premises in such
manner as may be prescribed.

(3) The person, on whom a notice
has been served under subsection (2)
shall be entitled to file objections, if
any, against the provisional assessment
before the assessing officer, who may,
after affording a reasonable opportunity
of hearing to such person, pass a final
order of assessment of the electricity
charges payable by such person.

(4) Any person served with the
order of provisional assessment, may,
accept such assessment and deposit the
assessed amount with the licensee
within seven days of service of such
provisional assessment order upon him.

(5) If the assessing officer reaches
to the conclusion that unauthorised use
of electricity has taken place, it shall be
presumed that such unauthorized use of
electricity was continuing for a period
of three months immediately preceding
the date of inspection in case of
domestic and agricultural services and
for a period of six months immediately
preceding the date of inspection.
594 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(6) The assessment under this
section shall be made at a rate equal to
twice the tariff rates applicable for the
relevant category of services specified
in sub-section (5).

Explanation.- For the purposes of
this section,-

(a) "assessing officer" means an
officer of a State Government or Board
or licensee, as the case may be,
designated
as
such
by
the
State
Government;

(b)"
unauthorised
use
of
electricity"
means
the
usage
of
electricity-

(i) by any artificial means; or

(ii) by a means not authorised by
the concerned person or authority or
licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for
which the usage of electricity was
authorised; or

(v) for the premises or areas other
than those for which the supply of
electricity was authorised."

Section 127 of the Electricity Act,
2003 lays down as follows:

"127.
Appeal
to
Appellate
Authority.- (1) Any person aggrieved by
a final order made under section 126
may, within thirty days of the said
order, prefer an appeal in such form,
verified
in
such
manner
and
be
accompanied by such fee as may be
specified by the State Commission, to an
appellate
authority
as
may
be
prescribed.

(2) No appeal against an order of
assessment under sub-section (1) shall
be entertained unless an amount equal
to half of the assessed amount is
deposited in cash or by way of bank
draft with the licensee and documentary
evidence of such deposit has been
enclosed along with the appeal.

(3) The appellate authority referred
to in sub-section (1) shall dispose of the
appeal after hearing the parties and
pass appropriate order and send copy of
the order to the assessing officer and
the appellant.

(4) The order of the appellate
authority referred to in sub-section (1)
passed under sub-section (3) shall be
final.

(5) No appeal shall lie to the
appellate authority referred to in subsection (1) against the final order made
with the consent of the parties.

(6) When a person defaults in
making payment of assessed amount, he,
in addition to the assessed amount shall
be liable to pay, on the expiry of thirty
days from the date of order of
assessment, an amount of interest at the
rate of sixteen per cent per annum
compounded every six months."

Clause 8.1 (b) (iii) (iv) & (v) of the
U.P. Electricity Supply Code, 2005 laid
down as under:

"(iii). If the Assessing Officer of the
licensee suspects that theft of Electricity
has taken place (as defined under
2 All] Dr. Munni Lal V. State of U.P. and others
595
Section 135 of the Act), he will serve the
provisional assessment bill alongwith
show cause notice to the consumer for
hearing, giving 15 working days, under
proper receipt. The notice shall invite
objections in writing from the consumer,
if
any,
against
the
charges
and
provisional assessment and require the
presence of the consumer to answer to
all the charges imposed by the licensee.

(iv) If, after hearing, the authorized
officer finds that a case of theft has been
established, the assessment shall be
done for the energy consumption for
past period as per the assessment
formula given in Annexure 6.3 on (two)
times the rates as per applicable
normal tariff to the purpose for which
the energy is abstracted, used or
consumed
or
wasted
or
diverted,
whichever is higher and demand and
collect the same by including the same
in a separate bill. This is in addition to
any civil/criminal proceedings that may
be instituted as provided by the Act, and
described in clause 8.2 (vii).

(v) A copy of the order shall be
served to the consumer under proper
receipt and in case of refusal to accept
the order or in absence of the consumer,
shall be served on him under Registered
Post/Speed Post. The Authorized officer
may extend the last date of payment or
approve the payment to be made in
instalments on a consideration of the
financial position and other considtions
of the licensee. The amount, the
extended last date and/ or time schedule
of
payment/instalments
should
be
clearly stated in the speaking order."

12.

From
the
above-quoted
provisions of Clause 8.1(b) (iii), (iv)
and (v) of the U.P. Electricity Supply
Code, 2005, it will be noticed that the
Assessing Officer is required to serve
the Provisional Assessment Bill along
with
Show
Cause-Notice
to
the
consumer
for
hearing,
giving
15
working days, under proper receipt. The
notice shall invite objections in writing
from the consumer, if any, against the
charges and Provisional Assessment and
require the presence of the consumer to
answer to all the charges imposed by the
licensee. If, after hearing, the authorized
officer finds that a case of theft has been
established, the assessment shall be
done for the energy consumption in
accordance
with
the
provisions
contained in Clause 8.1 (b) (iv), and the
authorized officer shall demand and
collect the same by including the same
in a separate bill. A copy of the order
shall be served to the consumer under
proper receipt, and in case of refusal to
accept the order or in absence of the
consumer, shall be served on him under
Registered Post/Speed Post.

13. From the provisions contained
in Section 126 of the Electricity Act,
2003 also, it follows that the Assessing
Officer to required to provisionally
assess the electricity charges payable by
the person concerned in case of
unauthorized use of electricity. The
order of Provisional Assessment is
required to be served on the person
concerned. The person concerned, on
whom the Provisional Assessment is so
served, is entitled to file objections. The
Assessing Officer is required to give
reasonable opportunity of hearing to
such person and pass a Final Order of
Assessment in respect of such person.
596 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

14. The person concerned, in case
he is aggrieved by such Final Order of
Assessment, is entitled to file Appeal
under Section 127 of the Electricity Act,
2003 against the said Order.

15. In the present case, it will be
noticed that Show Cause-Notice dated
29th October, 2010 gave only seven
days' time to file objections against the
Provisional Assessment.

16. As noted above, Clause 8.1 (b)
(iii) of the U.P. Electricity Supply Code,
2005 requires that Show Cause-Notice
will be given giving 15 working days
for filing objections.

17. The Show Cause-Notice dated
29th October, 2010 also did not fix any
date for hearing as contemplated in
Clause 8.1 (b) (iii) of the U.P.
Electricity Supply Code, 2005.

18. No Final Order of Assessment
was passed in the case of the petitioner.
Instead, a Demand Notice dated 26th
October, 2010 was also enclosed with
the Show Cause-Notice dated 29th
October,
2010.
The
occasion
for
issuance of Demand Notice under
Section 3 of the U.P. Government
Electrical
Under-Taking
(Dues
Recovery) Act, 1958 would have arisen
only after the Final Order of Assessment
were passed in respect of the petitioner.

19. It will thus be noticed that the
respondent nos. 2 and 3 have not
followed the procedure as laid down in
the Electricity Act, 2003 and the U.P.
Electricity Supply Code, 2005 before
issuing the Demand Notice dated 26th
October, 2010.

20. In view of the above, the
Demand Notice dated 26th October,
2010 (appearing at page 27 of the
Paper-Book of the Writ Petition) issued
under Section 3 of the U.P. Government
Electrical
Under-Taking
(Dues
Recovery) Act, 1958 is liable to be
quashed, and the same is hereby
quashed.

21. It is further directed as under:

(1) Within 15 days from the date of
issuance of a certified copy of this
order, the petitioner may submit his
objections before the respondent no.3
against the Provisional Assessment
dated 29th October, 2010 (appearing at
pages 26 and 28 of the Paper-Book of
the Writ Petition) along with a certified
copy of this order.

(2) On receipt of such objections
from the petitioner, the respondent no. 3
will proceed to dispose of the same in
accordance with law by passing a
speaking and reasoned order in the
matter
after
giving
reasonable
opportunity of being heard to the
petitioner
expeditiously,
preferably
within a period of six weeks of the
receipt of the above documents.

22.

The
Writ
Petition
is
accordingly allowed with the aforesaid
observations and directions.
---------
2 All] Smt. Krishna Upadhyay V. State of U.P. and others
597
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 22769 of 2011

Smt. Krishna Upadhyay
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Jamwant Maurya

Counsel for the Respondents:
Sri S.K. Singh
C.S.C

Constitution
of
India,
Article
226,
243ZG-writ of Quo-warranto readwith
Uttar Pradesh Panchayat Raj (Settlement
of Election Dispute) Rules 1994-Rule 5A-Election of Gram Pradhan under ruleR-6 declared elected-Election Petition
against R-6 pending-by present Petition
question of disqualification of R-6 as
being below than 21 years age-not
eligible
to
hold
the
post-hence
continuance of R-6 on office of Gram
Pradhan amounts to usurping the post
without
having
legal
right-held
admittedly
the
same
facts
under
consideration in election Petitioner-such
question of facts and law can not be
decided by writ court-petition can not be
entertained.

Held: Para 15

In view of the foregoing discussion, it is
clear that when the challenge in the
petition is essentially the challenge to
the election of an elected candidate for
which remedy is to file an election
petition, this court normally does not
entertain a writ of quo-warranto. In the
present case, the petitioner herself has
filed Election Petition No. 2 of 2010
challenging the election of respondent
no. 6 which is pending consideration.
After filing the election petition, the
petitioner has come up by praying for a
writ of quo-warranto. The issue which
has been raised in the writ petition that
respondent no. 6 was not eligible to
contest the election is the issue in the
election petition which can very well be
gone into in the election petition and
decided. In the facts of the present case
and in view of the Division Bench
judgement in the case of Khem Singh
Pachhara (supra), we are of the view
that the present writ petition for a writ
of
quo-warranto
need
not
be
entertained.
Case law discussed:
2001 Vol. 7 SCC Pg. 231; 2010 (111) RD 467;
2010 (109) RD 432; W.P. No. 4567 of 2011
Khem Singh Pachhara vs. State of U.P. And
others; AIR 1999 SC 1723; JT 2009 Vol. SCC
287

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Jamwant Maurya,
learned counsel for the petitioner and
learned Standing Counsel.

2. By this writ petition, the
petitioner has prayed for a writ in the
nature of quo-warranto commanding and
directing respondent no. 6 to vacate the
post
of
Gram
Pradhan
of
Gram
Sabha/Gram Panchayat, Hetampur, Block
Sakaldeeha, District Chandauli forthwith
and to restrain functioning of Gram
Pradhan. Further mandamus has been
sought directing the respondent no. 2 to
conduct fresh election of Gram Pradhan,
Gram Sabha/Gram Panchayat, Hetampur,
Block Sakaldeeha, District Chandauli.

3. Respondent No. 6 filed her
nomination for the Office of Pradhan and
was declared elected on 25.10.2010 and
took charge on 03.11.2010. The petitioner