# M/s Bareilly Flour Mills(P.) Ltd. & another v. U.P. S.E.B. and others

- **Citation:** High Court of Judicature at Allahabad #39475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-bareilly-flour-mills-p-ltd-another-v-u-p-s-e-b-and-others-39475
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
12
Shakila Khatoon Versus I Addl. District Judge
wherein the court held that the rent should be
determined in accordance with the provisions
of Section 9(2) of the Act. He has further
placed reliance in a case reported in 1984 (2)
A.R.C., page 332- Smt. Prem Kumari Gupta
Versus District Judge Saharanpur and others.
Sri R.C. Srivastava, learned senior counsel
appearing on behalf of the petitioner has
further placed reliance in a case reported in
1982, A.R.C. page 243- Alkesh Mittal Versus
Gendan Lal Mittal.

10. Sri Manish Tiwari, learned counsel
appearing on behalf of the respondents has
submitted that as presumptive rent was fixed
in accordance with the provisions of Section
16(9) of the Act the authorities below were
justified for fixing standard rent on the basis
of the rent paid by the last tenant. Therefore,
no errors were committed by the Rent Control
authorities or by the appellate court.

11. After hearing learned counsel for the
parties I am of the view that there is much
force in the argument of Sri R.C. Srivastava.
Admittedly, there was no rent agreed between
the landlord and the tenant. The rent was fixed
by the District Magistrate under section 16(9)
of the Act and that was presumptive rent.
When application under section 9(2) of the
Act was filed a prayer was made for fixing
Rs.40/- per month as rent and court was
convinced that Rs.40/- cannot be fixed then it
should have considered the factors and
circumstances mentioned under Section 9(2)
of the Act. As it has not been considered and
the rent has been fixed on the basis of the
payment made by the last tenant the judgment
is illegal. Therefore, the orders passed by both
the authorities are hereby quashed and the
matter is being sent back to the Rent Control
& Eviction Officer to redetermine the
standard rent as provided under section 9(2)
of the Act.
12. Accordingly, the writ petition
succeeds and is allowed. The judgments and
orders passed by the I Additional District
Judge, Mathura, dated 20.11.1981 and the
Rent Control & Eviction Officer, Mathura,
dated 16.8.1980 are hereby quashed and the
matter is being sent back to the Rent Control
& Eviction Officer, Mathura to decide the
application filed by the petitioner afresh
keeping in view the provisions of Section 9(2)
of the Act. There will be no orders as to cost.

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1ALL] M/s Bareilly Flour Mills(P.) Ltd. & another V. U.P. S.E.B. and others
13
By the Court

1. This petition under Article 226 of the
Constitution has been filed praying for the
following relief's:-

1. issue a writ, order or direction in the
nature of certiorari calling for the record
and quashing the proceedings initiated
under assessment order dated 1.9.1999
2. issue a writ , order or directions in
the nature of mandamus commanding the
respondents not to assess or realise any
amount from the petitioner in pursuance of
the assessment order dated 1.9.1999 which
in turn is based on the alleged ex-parte
checking report dated 23.8.1999
or in alternative
3. issue a suitable writ, order or
direction in the nature of mandamaus,
directing
the

respondents
that
the
assessment proceedings in the present case
be finalised by the Executive Engineer
posted out side Bareilly.

2. The petitioner no. 1 M/s Bareilly Flour
Mills (Pvt.) Ltd. is a company incorporated
under the Companies Act and it has
established a unit in village Zerh tehsil
Faridpur in the district of Bareilly. It has been
sanctioned a load of 500 K.V.A. by U.P. State
Electricity Board (for short UPSEB) in the
year 1989. The UPSEB has installed an
Electronic Secured Meter which is an
electronic device for measuring the amount of
electricity which is supplied to the petitioner
no.1. This Electronic Secured Meter is
supplied by a company and the reading in the
same is recorded by a nominee of the
company who conducts an inspection once in
a month along with an Engineer of UPSEB.
This process of recording the consumption of
electricity is commonly known as M.R.I. At
15.20 hours on 23.8.1999, a team consisting
of Sri Atul Rastogi, nominee of the company
which had supplied the Electronic Secured
Meter, Sri J.P. Gupta, Assistant Engineer
(Meter),
Sri
M.I.
Haider
(J.E.),
Sri
Ghanshyam and Sri Munshi Lal , employees
of UPSEB went to the premises of petitioner
no. 1 for the purpose of M.R.I. They found
that a cable had been directly connected from
the 11 KVA line to the transformer installed
there and the cable which connects the meter
to the transformer had been disconnected. The
result of this directly connecting the main 11
KVA line to the transformer was that no
electricity was passing through the meter and
no consumption of the same was being
recorded therein. The petitioner no. 1 was thus
committing theft of the electricity. Sri J.P.
Gupta, Assistant Engineer gave information
about it to his superior officers. Subsequently,
on 24.8.1999 the electricity connection of
petitioner
no.1
was
disconnected.
The
Divisional Engineer (Executive Engineer).
Electricity Distribution Division, Bareilly,
thereafter sent an assessment bill for an
amount of Rs. 77,23,095.00 dated1.9.1999 to
the petitioner no.1. The petitioner seeks
quashing of this assessment bill.

3. We have heard Sri V.B. Upadhaya,
Senior Advocate assisted by Sri Arun Tandon
for the petitioners and Sri Sudhir Agrawal for
respondents no. 1 to 3 and have perused the
record.

4. Learned counsel for the petitioners has
contended that the petitioner no. 1 had been
sanctioned a load of 500 KVA in the year
1989.
Subsequently,
on
20.5.1999
the
petitioner no. 1 moved an application for
reduction of load from 500 KVA to 150 KVA
and thereafter Executive Engineer, Electricity
Distribution Division, directed the SubDivisional Officer to check the installation of
petitioner no.1 and to ascertain the number of
motors installed therein for the purpose of
reduction
of
load.
The
petitioner
was
informed that as per the M.R.I. of sub-station,
the consumption of electricity appeared to be
more than one recorded at the meter installed
in the Flour Mill and consequently an
objection was raised that on the basis of
M.R.I.
of
the
sub-station
from
where
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
14
electricity was supplied to many industries, no
bill should be raised against the petitioners.
On the basis of the complaint of the
petitioners,
the
Zonal
Chief
Engineer
constituted
a
Committee
consisting
of
Superintending Engineer, three Executive
Engineers and Assistant Engineers, who made
physical inspection of the Flour Mill on
18.8.1999 and after being satisfied that there
was no misutilisation or misapplication of the
electrical energy submitted a sealing report
dated 18.8.1999. This showed that no theft of
electricity was being committed by the
petitioner.
Learned
counsel
has
further
contended that a report about the alleged theft
was also lodged with the police who, after
investigation, has submitted a report to the
effect that no theft of the electricity had been
committed. Lastly, it has been contended that
the inspection is alleged to have been done in
the
presence
of
Sri
R.P.
Singh
(Superintending Engineer) as well as officers
and
employees
of
Vigilance
Cell
and
consequently the Executive Engineer who had
sent the assessment bill cannot act fairly while
finalising the assessment bill as he cannot
disregard the report of Sri R. P. Singh,
Superintending Engineer, as he is a superior
officer. It is thus urged that this Court should
intervene in the matter and quash the
assessment bill as from the material on record
the commission of theft by the petitioner no. 1
is not established.

5. Sri Sudhir Agrawal, learned counsel for
the contesting respondents has however
submitted that the report of Sri J.P. Gupta,
Assistant Engineer, which had also been
signed by Sri Atul Rastogi, nominee of the
company which has supplied the Electronic
Secured Meter, besides Sri M.I.Haider, J.E.,
Sri Ghanshyam and Sri Munshi Lal clearly
showed that a cable had been directly
connected with the 11 KVA line to the
transformer installed in the Flour Mill by -
passing the meter. Learned counsel has also
contended that there is other strong evidence
which conclusively establishes that petitioner
no. 1 had committed theft of electricity.
Regarding the assessment bill, it has been
urged that the same has been prepared by Sri
Shashi Kant, Executive Engineer (Revenue)
and 'he was not a member of the team which
had
conducted
the
inspection
and
no
allegation of any kind has been made against
him in the writ petition. Sri Agrawal has
further submitted that the assessment bill is
only provisional in nature, which has to be
finalised after giving an opportunity of
hearing to the consumer and against the final
bill, an appeal lies under the Regulations and,
therefore, this Court should not exercise its
discretionary jurisdiction under Article 226 of
the Constitution at the present stage. The
question whether a theft was being committed
by directly connecting a cable with 11 KVA
line with the transformer installed in the Flour
Mill is a pure question of fact. It is not
possible for this Court to record any finding
on this question while exercising jurisdiction
under Article 226 of the Constitution. It is for
the concerned Authority of UPSEB to
consider the material and circumstances of the
case and record a finding on this question.
The report of the police station, Faridpur,
submitted to S.S.P. Bareilly, copy of which
has been filed as Annexure-9 to the writ
petition, has hardly any evidentiary value. The
only reason given therein is that it is not
possible to run a Mill by directly connecting a
cable with 11 KVA line. There port
dated23.8.1999 given by Sri J.P. Gupta,
Assistant Engineer, which has also been
signed by Sri Atul Rastogi, nominee of the
company which had supplied the Electronic
Secured Meter, Sri M.I. Haider, Sri Ghan
shyam and Sri Munshi Lal, mentions that they
had personally seen that cable had been
connected from the 11 KVA line to the
transformer of the Flour Mill bypassing the
meter. Besides above the M.R.I. done in the
sub-station from where electricity is supplied
to petitioner no. 1 and the number and
capacity of the motors installed therein can
also give clinching evidence on the point
whether
theft
of
electricity
was
being
1ALL] M/s Bareilly Flour Mills(P.) Ltd. & another V. U.P. S.E.B. and others
15
committed or not. This question has therefore
to be examined by the experts of the
department and it is not possible for this Court
to record a finding in favour of petitioner only
on the basis of the sealing report dated
18.8.1999 and the police report.

6 . Annexure-11 to the writ petition is a
copy of the assessment bill dated 1.9.1999 and
it has been sent to petitioner no. 1 by an
Executive Engineer of UPSEB. The bill itself
mentions that if the petitioner has any
objection to the assessment bill it may file a
written objection alongwith proofs within 15
days of the receipt of the assessment bill
failing which the same shall be deemed to be
final. This assessment bill has been prepared
under
clause 22 of Electricity Supply
(Consumers) Regulations, 1984. Clause B of
this Regulation relates to theft of energy and it
provides that where there is evidence that a
consumer
had
dishonestly
abstracted,
consumed, used or wasted energy the supplier
may estimate the value of the electrical energy
so abstracted, consumed or used as per guide
lines given in Annexure-1 and may also
disconnect
the
supply
without
notice.
Towards
the
end
of
the
Regulations,
Annexure-1 has been given which provides
the guidelines for assessment. The assessment
bill appears to have been prepared in
accordance with the Regulations contained in
Annexure-1.Regulation 23 (I) provides that
the Executive Engineer shall finalise all the
assessment cases after giving an opportunity
to the consumer to state his point of view.
Sub-clause (ii) of clause 23 lays down that if
the
consumer
is
dissatisfied
with
the
assessment so made, he may prefer an appeal.
Under the amended Regulations, if the
assessment bill is upto Rs.2 lakhs, the appeal
lies to a Circle Level Committee headed by
Superintending Engineer, if the assessment
bill is above Rs.2 lakhs and is upto Rs.10
lakhs, it lies to a Zonal level committee
headed by a Chief Zonal Engineer and if the
assessment bill exceeds Rs. 10 lakhs the
appeal lies to an Area Level Committee
headed by Area Chief Engineer (Level-1). As
mentioned earlier, only an assessment bill has
been issued to the petitioner on 1.9.1999 and
this itself mentions that if the petitioners
objects to the same they may file a written
objection alongwith proof within 15 days
failing which the assessment bill shall be
deemed to be final. The petitioners had an
opportunity to file an objection against the
assessment bill and thereafter a final bill
would have been prepared. Against the final
the petitioners have aright to file an appeal.
Thus, the statute itself provides an efficacious
and alternative remedy to challenge the
assessment bill dated 1.9.1999.

7. Learned counsel for the petitioners has
urged that at the time of the inspection Sri
R.P. Singh, Superintending Engineer as well
as officers and employees of Vigilance Cell
were present and therefore no useful purpose
will be served by filing objection to the
assessment
bill
and
consequently
the
alternative
remedy
provided
under
the
Regulations is illusory in character. In support
of this submission, reliance is placed on Ram
and Shyam Company Versus State of Haryana
AIR 1985 SC 1147. In our opinion, the
contention raised has no substance. The
assessment bill has been issued under the
signature of Sri Shashi Kant, Executive
Engineer (Revenue). No allegation has been
made against him in the writ petition nor it is
alleged that he was present at the time of the
inspection. The authority cited is clearly
distinguishable on facts as in the said case the
order for grant of mining lease was passed by
an Authority on the dictate of Chief Minister
and in the said circumstance it was held that
an appeal to the State Government would be
ineffective. There is no reason to doubt that
Sri
Shashi
Kant,
Executive
Engineer
(Revenue)
would
not
act
fairly
while
finalising the assessment bill if an objection to
the same is filed by the petitioners. That apart
against the final bill, the petitioners will have
a right of appeal to Area Level Committee,
which is headed by an Area Chief Engineer
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
16
(Level-1). In our opinion, the petitioners have
an efficacious and alternative remedy of filing
an objection to the assessment bill and also
filing an appeal against the final bill. In these
circumstances, it is not a fit case for exercise
of our discretionary jurisdiction under Article
226 of the Constitution at this stage.

8. In view of the discussions made above,
the writ petition is dismissed on the ground of
alternative remedy. It is however directed that
if the petitioners file an objection to the
assessment bill within 15 days from today, the
Executive Engineer concerned shall entertain
the same and finalise the assessment case after
giving an opportunity to the petitioners to
state their point of view and in accordance
with law.

9. Office is directed to issue a certified
copy of this order on payment of usual
charges within three days.

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By the Court

1. By means of this writ petition, the
petitioner has challenged detention order
dated
22.7.99
passed
against
him
by
respondent no . 2-District Magistrate,
Jyotibba Phuley Nagar, under section 3 (2) of
the National Security Act and his continued
detention thereunder.

2.
Counter-affidavit
and
rejoinder
affidavit have been exchanged between the
parties. We have heard Mr. D.S. Misra,
learned counsel for the petitioner, Mr.
Mahendra Pratap, learned A.G.A. appearing
of behalf of respondent no. 1,2 & 3 and Mr.
Shesh Mani Misra representing respondent
no. 4-Union of India.

3. Learned counsel for the petitioner has
challenged the impugned detention order only
on the ground that there was inordinate delay
in sending the petitioner's representation
dated 7.8.99 to the Central Government which
was received there on 24.8.99.

4. We have considered the respective
submissions made by learned counsel for the
parties on this point.