# Smt. Saroj Sharma v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 859
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-07
- **Case number:** Civil Misc. Writ Petition No. 44673 of 2008
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-saroj-sharma-v-state-of-u-p-ors-42995
- **Pages:** 8

## Headnote

Limitation Act, Section-5-condonation of
delay 118 days-reason disclosed after death
of claimant-under depression could not file
within
time-held-proper-can
not
be
rejected.

Held: Para-16
So far as the other reason given by the
learned
Tribunal
for
rejecting
the
applications, i.e. the delay/ limitation in
filing the same is concerned, this court is of
the view that in view of averments made in
the application for condonation of delay,
there was sufficient cause for condoning
such delay and the Tribunal erred in taking
a very narrow and strict view of the matter
whereas in fact it should have taken a
liberal view. Reference may be made in this
regard to the Supreme Court judgment
reported in Collector, Land Acquisition,
Anantnag Vs. Katiji, AIR 1987 SC 1353. The
860 INDIAN LAW REPORTS ALLAHABAD SERIES
reason
given
in
the
application
for
condonation of delay was that after the
death of late Radhey Shyam Sharma, the
legal heir/ wife was in a state of depression
and anxiety on account of which she could
not file application for substitution within a
reasonable period and it is only after being
able to come out of the mental anxiety and
trauma
of
his
death,
she
filed
the
application,
which,
according
to
the
Tribunal, was delayed by 118 days. In the
facts
and
circumstances,
there
was
sufficient explanation for the delay as such
the said order of the learned Tribunal is not
sustainable even on this count.

Abatement of claim petition-death of
sole claimant-accident claim on personal
body injury-during pendancy of claim
petition-in
another
accident-diedTribunal dismissed claim petition as
opted-held-right to sue of heirs still
service-petition can not be dismissed as
abted.

Held: Para-11
In the instant case, the claimant had
filed the claim petition during his life
time. After his death, though the claim
for compensation based on the personal
injuries sustained in the accident dated
09.02.2005 stood abated and the right to
sue did not survive any further but the
said right survives in favour of the
petitioner herein, who is legal heir of the
claimant in so far as the loss to the
estate of the deceased is concerned,
keeping in mind the above mentioned
full bench decision of the Madhya
Pradesh High Court and Sections 1 & 2 of
the Legal Representatives Suits Act,

## Text

2 All]. Smt. Saroj Sharma Vs. State of U.P. & Ors.
859
24.5.2005 passed by this court is as
follows:-

"In the meantime, if the petitioner
reinstates the respondent-workman within
one month from today and ensures
payment of wages regularly, the operation
of the award impugned in the present writ
petition dated 2nd November, 2004 shall
remain stayed.

In case of default, the petitioner shall
not be entitled to the benefits of this order."

28. It has been brought on record that
pursuant to the interim order dated 24.5.2005
passed by this court, the petitioner institution
allowed him to join the duties under
compelled circumstances. An application
dated 7.3.2011 bringing on record the said
fact has been filed before this court.

29. Shri Dinesh Chandra Mishra,
learned counsel for the petitioner also
stated at bar that in pursuance of the order
dated 19.4.2010 passed by the District
Inspector of Schools, Mehar Singh was
adjusted against the vacant post of another
class IV employee with effect from
1.2.2010. The respondent Sita Ram had
already joined the services on 21.6.2005
under the interim order passed by this
court.

30. In view of the facts discussed
above, this court directs that the salary of
Sita Ram be paid with effect from the date
of
his
reinstatement
ie.
21.6.2005
pursuant to the interim order, if not
already paid, as he has been held entitled
to reinstatement after acquittal in criminal
case in the year 1998. However he shall
not be entitled to back-wages. It is further
directed that the arrears of salary of Sita
Ram along with all other consequential
benefits, if any, shall be calculated and
paid to him within a period of four
months from the date of production of
certified copy of this order, in the
petitioner institution.

31. Consequently, both the writ
petitions
are
allowed
with
the
observations made above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2014

BEFORE
THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 44673 of 2008

Smt. Saroj Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri K.P. Verma

Counsel for the Respondents:
C.S.C., Sri Rajeev Ojha

Limitation Act, Section-5-condonation of
delay 118 days-reason disclosed after death
of claimant-under depression could not file
within
time-held-proper-can
not
be
rejected.

Held: Para-16
So far as the other reason given by the
learned
Tribunal
for
rejecting
the
applications, i.e. the delay/ limitation in
filing the same is concerned, this court is of
the view that in view of averments made in
the application for condonation of delay,
there was sufficient cause for condoning
such delay and the Tribunal erred in taking
a very narrow and strict view of the matter
whereas in fact it should have taken a
liberal view. Reference may be made in this
regard to the Supreme Court judgment
reported in Collector, Land Acquisition,
Anantnag Vs. Katiji, AIR 1987 SC 1353. The
860 INDIAN LAW REPORTS ALLAHABAD SERIES
reason
given
in
the
application
for
condonation of delay was that after the
death of late Radhey Shyam Sharma, the
legal heir/ wife was in a state of depression
and anxiety on account of which she could
not file application for substitution within a
reasonable period and it is only after being
able to come out of the mental anxiety and
trauma
of
his
death,
she
filed
the
application,
which,
according
to
the
Tribunal, was delayed by 118 days. In the
facts
and
circumstances,
there
was
sufficient explanation for the delay as such
the said order of the learned Tribunal is not
sustainable even on this count.

Abatement of claim petition-death of
sole claimant-accident claim on personal
body injury-during pendancy of claim
petition-in
another
accident-diedTribunal dismissed claim petition as
opted-held-right to sue of heirs still
service-petition can not be dismissed as
abted.

Held: Para-11
In the instant case, the claimant had
filed the claim petition during his life
time. After his death, though the claim
for compensation based on the personal
injuries sustained in the accident dated
09.02.2005 stood abated and the right to
sue did not survive any further but the
said right survives in favour of the
petitioner herein, who is legal heir of the
claimant in so far as the loss to the
estate of the deceased is concerned,
keeping in mind the above mentioned
full bench decision of the Madhya
Pradesh High Court and Sections 1 & 2 of
the Legal Representatives Suits Act,
1855.

Case Law discussed:
2006(1) ACC 378; 2006(3) ACC 462; 1996 ACJ
440; AIR 2007 MP 38; 1995 ACJ 706. AIR
1987 SC 1353.

(Delivered by Hon'ble Rajan Roy, J.)

1. By means of this writ petition, a
challenge has been made to the order
dated 30.08.2007 passed by the Motor
Accident Claims Tribunal in M.A.C.P.
No.195 of 2005, Radhey Shyam Sharma
Vs. Mohd. Kasim and others, whereby the
application for substitution filed by the
petitioner
herein
along
with
the
application for condonation of delay have
been rejected on the ground that the claim
petition having been filed by the claimant
on the basis of a personal injury, the same
stood abated on his death and the right to
sue did not survive in favour of legal
heirs/ representatives.

2. The facts of the case in brief are
as under:

3. On 09.02.2005, an accident took
place in which late Radhey Shyam
Sharma sustained injuries. Based on these
injuries, Sri Sharma filed the above
mentioned
claim
petition
seeking
compensation
to
the
tune
of
Rs.16,50,000/- under various heads plus
18% interest per annum thereon. Sri
Sharma subsequently met with another
accident and consequent thereto died on
09.06.2005. It is not in dispute that the
death of Sri Sharma was not on account of
the injuries sustained by him in the first
accident, which took place on 09.02.2005.
In the above mentioned claim petition, a
written statement was filed by the
Insurance Company on 24.11.2005, inter
allia, stating that the claimant had already
died and the
petition
had abated.
Subsequently
on
12.01.2006,
an
application for substitution was filed by
the petitioners as the legal heirs of Sri
Sharma along with an application for
condonation of delay in filing the same.
Objections to the aforesaid application
were filed on 28.08.2006, inter allia,
stating that the claim had abated and the
right to sue did not survive.
2 All]. Smt. Saroj Sharma Vs. State of U.P. & Ors.
861

4. On 30.08.2007, the aforesaid
applications were rejected by the learned
Tribunal on two grounds, firstly, the claim
had abated after the death of the claimant
in view of full bench decision of the
Karnatka High Court in the case of Uttam
Kumar Vs. Madhav and others reported in
2006 (1) ACC 378 Karnatka and other
judgments viz. Virendra Singh Vs. Ashok
Kumar and others, 2006 (3) ACC 462 and
the decision of the Supreme Court
allegedly in the case of M.S. Ajuta Hasan
Vs. T.G. Nayyar, 1996 ACJ 440.
Secondly, the application for substitution
had been filed with a delay of 118 days
and the cause shown in the application for
condonation of delay was not sufficient
nor satisfactory.

5. Heard learned counsel for the
petitioner and perused the records.

6. Notices were issued to the
respondent No.3 but nobody has put in
appearance on his behalf. The counsel for
the respondent No.2 also did not appear.

7. The learned counsel for the
petitioner contends that the petitioner
being legal heir/ wife of late Radhey
Shyam Sharma and the claim petition
having been filed by Sri Sharma during
his lifetime, she was entitled to be
substituted at his place as the right to sue
survived in her favour. The learned
Tribunal erred on facts and in law in
rejecting the application for substitution
as having been abated and also as being
barred by limitation.

8. A perusal of the impugned order
reveals that the learned Tribunal has
rejected the applications as abated mainly
relying upon the judgments referred to
above. So far as the legal position that in
cases of personal injury, the claim dies
with the claimant and the right to sue does
not survive is concerned, there cannot be
much doubt and the decisions referred in
the impugned order on this issue to the
aforesaid extent cannot be disputed.

9. However having said so, this
court would like to refer to another full
bench decision of the Madhya Pradesh
High Court in the case of Smt. Bhagwati
Bai Vs. Bablu and others, AIR 2007 MP
38,
wherein
after
considering
the
provisions of Section 306 of the Indian
Succession Act and the provisions of the
Legal Representatives Suits Act, 1855, it
is held that though the claim based on
personal injury would abate on the death
of the claimant but the right to sue will
survive so far as the loss to the estate of
the deceased is concerned and to this
extent, the proceedings can be pursued by
the legal heirs/ representatives of the
deceased. The relevant extracts of the
aforesaid full bench decision are being
quoted below:

"9. A reading of Sub-section (1)(a) of
Section 166 of the Motor Vehicles Act,
1988, would show that only a person who
has sustained the injury, can file an
application for compensation. Further a
reading of Sub-section (1)(d) of Section
166 would show that any agent duly
authorised by the person injured can also
file such application for compensation for
injury suffered by such person. Subsection (1)(c) of Section 166 provides that
where death has resulted from the
accident, all or any of the legal
representatives of the deceased can file an
application for compensation and Subsection (1)(d) of Section 166 provides that
a legal representative of the deceased can
also file claim where death has resulted
862 INDIAN LAW REPORTS ALLAHABAD SERIES
from the accident. Thus, in a case of
personal injury not resulting in death the
legal representative of such person who
was injured and who dies subsequently
not on account of accident but for some
other
reason
cannot
maintain
an
application for compensation for personal
injury sustained in an accident under Subsection (1) of Section 166 of the Motor
Vehicles Act, 1988. Hence, the contention
of
Mr.
Choubey,
learned
Counsel
appearing for the appellants, that under
Section 166(1) of the Motor Vehicles Act,
1988, an application for compensation for
personal injury can be filed also by the
legal representatives of the deceased
whose death was not as a result of
accident but for some other reason is not
correct.

10. Section 306 of the Indian
Succession Act, 1925, on which reliance
has been placed by Mr. Bansal, learned
Counsel appearing for the respondent No.
3/Insurance Company, is quoted herein
below:

"Section 306. Demands and rights of
action of or against deceased survive to
and against executor or administrator.--

All demands whatsoever and all
rights to prosecute or defend any action or
special proceeding existing in favour of or
against a person at the time of his
deceased, survive to and against his
executors or administrators; except cause
of action for defamation, assault as
defined in the Indian Penal Code, 1860
(45 of 1860) or other personal injuries not
causing the death of the party; and except
also cases where, after the death of the
parly, the relief sought could not be
enjoyed
or
granting
it
would
be
nugatory."

The aforesaid section inter alia
provides that all rights to prosecute any
action or special proceeding existing in
favour of a person at the time of his death,
survive to his executors or administrators
except causes of action for personal
injuries not causing the death of the party.
Thus, under Section 306 of the Indian
Succession Act, 1925, the executors or
administrators of a deceased will have a
right to prosecute or continue any action
or special proceeding existing in favour of
the deceased at the time of his death,
except causes of action for personal injury
not causing death of the party. Therefore,
where the accident does not cause death
of a party but only causes personal injury
to him, his executors or administrators
will not have a right to prosecute or
continue to prosecute an application for
compensation for personal injury suffered
by the party in a motor accident.

11.
In
Melepurath
Sankunni
Ezhuthassan v. Thekittil Geopalankutty
Nair (1986 ACJ 440 : AIR 1986 SC 411),
the Supreme Court observed that the
principle contained in Section 306 of the
Indian Succession Act, 1925, will apply
not only to executors or administrators but
also
to
other
legal
representatives.
Paragraph 8 of the judgment of the
Supreme Court in Melepurath Sankunni
Ezhuthassan v. Thekittil Geopalankutty
Nair (supra), as reported in the AIR, is
quoted hereinbelow:

"Section 306 further speaks only of
executors and administrators but on
principle
the
same
position
must
necessarily prevail in the case of other
legal representatives, tor such legal
representatives cannot in law be in better
or worse position than executors and
administrators
and
what
applies
to
2 All]. Smt. Saroj Sharma Vs. State of U.P. & Ors.
863
executors and administrators will apply to
other legal representatives also."

Hence by virtue of the principle in
Section 306 of the Indian Succession Act,
1925, the legal representatives of a deceased,
who suffers personal injury in a motor
accident and who dies subsequently for some
other reason, cannot prosecute or continue to
prosecute an application for compensation
under Sub-section (1) of Section 166 of the
Motor Vehicles Act, 1988.

12.
Section
1
of
the
Legal
Representatives Suits Act, 1855, confers
rights on the executors, administrators or
representatives of any person deceased to
maintain an action for any wrong
committed in the lifetime of a deceased
person. The said Section 1 of the Legal
Representatives Suits Act, 1855, is quoted
herein below:

'S. 1.......... Executors may sue and be
sued
in
certain
cases
for
wrongs
committed in lifetime of deceased.-- An
action may be
maintained by the
executors,
administrators
or
representatives of any person deceased,
for any wrong committed in the lifetime
of such person, which has occasioned
pecuniary loss to his estate, for which
wrong an action might have been
maintained by such person, so as such
wrong shall have been committed within
one year before his death and the damages
when recovered shall be part of the
personal estate of such person;

and further, an action may be
maintained against the executors or
administrators or heirs or representatives
of any person deceased for any wrong
committed by him in his lifetime for
which he would have been subject to an
action, so as such wrong shall have been
committed within one year before such
person's death and the damages to be
recovered in
such action shall,
if
recovered
against
an
executor
or
administrator
bound
to
administer
according to the English Law, be payable
in like order of administrator as the
simple contract debts of such person."

13. It will be clear from Section 1 of
the Legal Representatives Suits Act,
1855, quoted above that the legal
representatives of any deceased person
can maintain an action for any wrong
committed in the lifetime of such
deceased person, which has occasioned
pecuniary loss to his estate, for which
wrong an action might have been
maintained by such person, so as such
wrong shall have been committed within
one year before his death and the damages
when recovered shall be part of the
personal estate of such person. It is by
virtue of this provision in Section 1 of the
Legal Representatives Suits Act, 1855
that the legal representatives of the
deceased person can also maintain or
continue to maintain an application for
compensation for personal injury suffered
in the lifetime of such person in a motor
accident which has occasioned pecuniary
loss to the estate for which such person
might have filed an application for
compensation under Section 166(1) of the
Motor Vehicles Act, 1988. But where a
personal injury suffered by a person
during lifetime in a motor accident has
not occasioned pecuniary loss to the estate
of
the
such
person,
the
legal
representatives of the deceased person
cannot maintain or continue to maintain
an application for compensation under
Sub-section (1) of Section 166 of the
Motor Vehicles Act, 1988.
864 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Further, under Section 1 of the
Legal Representatives Suits Act, 1855, an
application for personal injury suffered by
a person during lifetime in a motor
accident can be maintained and continued
by the representatives of the deceased
person for the pecuniary loss occasioned
to the estate of the deceased person so
long as the accident has been caused
within one year before his death.
Moreover,
the
accident
may
have
occasioned pecuniary loss to the estate of
a person in many ways and it is for the
Tribunal or the Court to decide the loss
which has been occasioned to the estate of
the person who had suffered personal
injury in a motor accident depending on
the pleadings and proof before the Court
in each case. In Paragraph 21 of the
judgment of the Division Bench of this
Court in Umedchand Golcha v. Dayaram
and Ors. (supra), the Division Bench of
this Court has held :-

"Further, the question is which items
can form loss to the estate of the deceased.
Of course, exhaustive list of these items
cannot be given, since it would depend
upon pleadings and proof brought before
the
Court
by
the
claimant/legal
representatives. But it can be held that loss
of accretion to the estate through savings or
otherwise caused on account of accident
permanently or temporarily can be worked
out on giving facts or assessing the loss to
the estate. Further, the existing state of
estate may suffer loss by application
towards medical expenses, expenditure on
diet, expenditure on travelling, expenditure
on
attendant,
expenditure
on
diet,
expenditure on Doctor's fee, reasonable
monthly/annual accretion to the estate for
certain period etc. The claimant does not
keep separate amount for such unforeseen
expenditures during his life-lime. His
income is at the most divided in three parts,
namely,
expenditure
on
himself,
expenditure on family and the savings to the
estate. Therefore, he has to meet such
expenditure from out of his estate. There
may be circumstance where it is born by his
legal representatives. Therefore, it is held
that the legal representatives can ask for loss
to the estate of these items by production of
satisfactory evidence unless Court is able to
draw lifetime conclusion about such
expenditures from out of the estate, from the
facts and circumstances and on the basis of
experience."

15. In the result, we are of the
considered opinion that a claim for personal
injury filed under Section 166 of the Motor
Vehicles Act, 1988 would abate on the death
of the claimant and would not survive to his
legal representatives except as regards the
claim for pecuniary loss to the estate of the
claimant. The matter will now be placed
before the Division Bench for assessment of
the pecuniary loss caused to the estate of the
deceased Pancham Singh on account of the
motor accident suffered by him on the basis
of
pleadings
and
proof
before
the
Tribunal/Court. "

11. In the instant case, the claimant
had filed the claim petition during his life
time. After his death, though the claim for
compensation based on the personal
injuries sustained in the accident dated
09.02.2005 stood abated and the right to
sue did not survive any further but the
said right survives in favour of the
petitioner herein, who is legal heir of the
claimant in so far as the loss to the estate
of the deceased is concerned, keeping in
mind the above mentioned full bench
decision of the Madhya Pradesh High
Court and Sections 1 & 2 of the Legal
Representatives Suits Act, 1855.
2 All]. Smt. Saroj Sharma Vs. State of U.P. & Ors.
865

12. So far as the full bench judgment
of the Karnatka High Court in Uttam
Kumar's case is concerned, there can be
no quarrel with regard to the proposition
of law laid down therein with regard to
the claim based on personal injury in view
of Section 306 of Indian Succession Act,
1925 is concerned, however the said
decision does not consider the other
aspect relating to the loss caused to the
estate of the deceased in the light of the
provisions of the Act of 1855, which have
been considered by the full bench of the
Madhya Pradesh High Court in Smt.
Bhagwati Bai's case (supra).

13. The learned Tribunal herein has
not considered the judgment of the full
bench of the Madhya Pradesh High Court
nor the aforesaid aspect while rejecting
the applications in question. So far as the
judgment of the learned single Judge of
the Madhya Pradesh High Court in the
case of Shantabai Dube and another Vs.
Kanhaiyalal and another, 1995 ACJ 706 is
concerned, the same cannot be treated as
good law in view of subsequent full bench
decision of the same High Court in Smt.
Bhagwati Bai's case (supra).

14. In view of the above, the
irresistible conclusion is that the learned
Tribunal
erred
in
rejecting
the
applications in question on the ground of
abatement of the claim petition without
considering the issue of loss to the estate
of the deceased. The learned Tribunal
failed to appreciate that for considering
this aspect of the matter not only the right
to sue survived but the substitution of the
petitioner herein was essential.

15. The learned Tribunal appears to
have been misled by the fact that the
applications before it did not disclose the
cause of the death of Radhey Shyam
Sharma and which, according to this
court,
was
wholly
irrelevant.
The
application
for
substitution
clearly
mentioned that the date of death of Sri
Sharma was 19.06.2005 and the same was
on account of an accident and it nowhere
stated that the death was on account of
injuries sustained in the first accident.

16. So far as the other reason given
by the learned Tribunal for rejecting the
applications, i.e. the delay/ limitation in
filing the same is concerned, this court is
of the view that in view of averments
made in the application for condonation
of delay, there was sufficient cause for
condoning such delay and the Tribunal
erred in taking a very narrow and strict
view of the matter whereas in fact it
should have taken a liberal view.
Reference may be made in this regard to
the Supreme Court judgment reported in
Collector, Land Acquisition, Anantnag
Vs. Katiji, AIR 1987 SC 1353. The reason
given in the application for condonation
of delay was that after the death of late
Radhey Shyam Sharma, the legal heir/
wife was in a state of depression and
anxiety on account of which she could not
file application for substitution within a
reasonable period and it is only after
being able to come out of the mental
anxiety and trauma of his death, she filed
the application, which, according to the
Tribunal, was delayed by 118 days. In the
facts and circumstances,
there
was
sufficient explanation for the delay as
such the said order of the learned Tribunal
is not sustainable even on this count.

17. In view of the above discussion,
the impugned order dated 30.08.2007 is
quashed. The applications for substitution
and condonation of delay are allowed.
866 INDIAN LAW REPORTS ALLAHABAD SERIES
The substitution of the petitioner herein as
party in the M.A.C.P. No.195 of 2005
shall be allowed to be carried out within a
period of one month from the date of
submission of a certified copy of this
order and the learned Tribunal shall
proceed thereafter in accordance with law
in the light of the observations made
hereinabove for ascertaining the loss, if
any, caused to the estate of the deceased
late Radhey Shyam Sharma on account of
the
accident
suffered
by
him
on
09.02.2005 on the basis of the pleadings
and proof adduced before it.

18. The writ petition is accordingly
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2014

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE MRS. RANJANA PANDYA, J.

Civil Misc. Writ Petition No. 55384 of 2009

Mohd. Sagir ...Petitioner
Versus
Dakshinanchal Vidyut Vitran Nigam Ltd.
Agra & Ors. ...Respondents

Counsel for the Petitioner:
Sri B.C. Rai

Counsel for the Respondents:
Sri Rajesh Tripathi, Sri H.P. Dube, Sri
Rajendra Kumar Mishra

Constitution
of
India,
Art.-226Alternative Remedy-writ petition-held no
absolute bar-where principle of Natural
Justice violated-and petition pending
since
long-assessment
on
opening
meter-behind the back of petitioneropportunity to file objection-held must in
view of section 126(3) of Act 2003objection to avail remedy of appeal
under Section 127-held no bar.

Held: Para-29
Learned counsel for the petitioner has also
raised some other submissions regarding
the assessment made by the respondents
on 30/9/2009 including the submissions
that the assessment made for 365 days was
unjustified since the respondents have
already
conducted
the
inspection
on
28/4/2009 and no period prior to the said
date
can
be
taken
for
assessment.
However, we having taken the view that
the petitioner was entitled for opportunity
to file an objection against the provisional
assessment notice dated 05/9/2009, we
leave it open to the petitioner to raise such
objection as permissible regarding the
provisional assessment, and do not feel it
necessary to decide the said submissions in
this writ petition.

Case Law discussed:
2009(1) ADJ 430; 1998 (8) SCC 1.

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

1. We have heard Shri B.C. Rai,
learned counsel for the petitioner and Shri
Rajenda Kumar Mishra, learned counsel
appearing for the respondents.

2. Counter and rejoinder affidavits
having been exchanged between the
parties, with the consent of the learned
counsel for the parties, we proceed to
decide the writ petition finally.

3. By this writ petition, the
petitioner, proprietor of M/s Monex Glass
Private Limited has challenged the order
dated 30/9/2009, by which the Executive
Engineer finalized the theft assessment on
the basis of checking dated 16/8/2009.
Petitioner has also prayed for appropriate
writ, order or direction declaring the
meter testing report dated 03/9/2009 as
illegal
and
arbitrary.