HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1604 of 2009 (M/S) Jai Prakash …. Petitioner .. Versus Uttarakhand Power Corporation & others … Respondents Mr. Nagesh Agrawal, Advocate for the petitioner. Mr. B.D. Upadhyay, Advocate for the respondents. 30th November, 2009 Hon’ble Sudhanshu Dhulia, J. Heard Mr. Nagesh Agrawal, Advocate for the petitioner as well as Mr. B.D. Upadhyay, Advocate for the respondents. The petitioner is a consumer of electricity. The Uttarakhand Power Corporation which is the main respondent in the present writ petition had initiated proceedings against the petitioner under Section 135 of the Electricity Act, 2003 whereby an F.I.R. was lodged to the police and the charges against the petitioner of pilferage/theft of electricity were framed, where a chargesheet has already been filed and the trial is on. Apart from this, the power corporation has also initiated proceedings under Section 126 of the Electricity Act, 2003 whereby a provisional assessment has been made under Section 126 (1) of the Electricity Act, 2003 and an amount of Rs. 3,74,917/- is being recovered from the petitioner. It is this recovery by which the petitioner is presently aggrieved and has made the following prayer : “A. Issue a writ order or direction in the nature of certiorari as to quash the order dated 17.6.2009 (Annexure No. 2 ) & 1.8.2008 (Annexure No. 3) issued by the respondent no. 3. 2 B. Issue any other writ order or direction which this Ho’ble court may deem fit and proper in the facts and circumstances of the case. C. Award the cost of the petition to the petitioner.” The main contention of the petitioner is that once the criminal proceedings against the petitioner have been initiated and the petitioner has been charged for the theft of electricity and the criminal trial is going on, the power corporation cannot make any assessment under Section 126 of the Electricity Act. This argument of the petitioner is entirely misconceived in as much as Section 126 and Section 135 envisage two different procedures which occupy to entirely different fields. Under Section 135 of the Electricity Act, 2003 a criminal proceeding is launched against a person if he is indulged in theft of electricity whereby under Section 126 of the Electricity Act charges of unauthorised use of electricity is assessed and subsequently the consumer is charged. There is no bar against the power corporation not to recover the charges for unauthorised use of electricity under Section 126 of the Electricity Act merely because proceedings under Section 135 are initiated. Such an interpretation will give rise to absurd situation, where the power corporation will be prohibited from recovering its charges against the consumer, as a penalty for launching a criminal prosecution against the consumer. Another argument of the petitioner, as raised before this Court, is that the present assessment which is being made under Section 126 of the Electricity Act is not in accordance with the provision. The petitioner contends that firstly the provisional assessment has to be made by the power corporation and the copy of this assessment has to be served upon the consumer who is in occupation of the premises and thereafter an opportunity of hearing should also be given to 3 him where he can object to the assessment made by the power corporation and only thereafter after i.e. after a period of 30 days a final order can be made by them. This procedure, the petitioner, contends has not been adopted by the power corporation. Learned counsel for the power corporation Sri B.D. Upadhyay, states that the order presently impugned by the petitioner clearly states that it has to be treated as provisional as well as final assessment. It is a provisional assessment since seven days’ time was given to the petitioner to file representation and in case such a representation is not filed, this provisional order will become the final order. This contention of the power corporation, however, is not correct. The provision as laid down under Section 126 of the Electricity Act, 2003 clearly envisages a situation whereby an opportunity of hearing has to be given to the consumer and in the order which has to be served upon the petitioner it must be stated that it is a “provisional order” and thereafter the objection has to be made by the consumer and after hearing the consumer, final order of assessment can be passed within a period of thirty days, in case representation is filed. Clearly, this proceeding has not been adopted by the power corporation. A perusal of the impugned order also shows that it is a typed proforma and only figures have been added thereon. Prima facie, therefore, there has been no application of mind by the power corporation on this. This also shows that the procedures as laid down under Section 126 of the Electricity Act, 2003 have not bee adopted in its letter and spirit. Therefore, this Court directs that the order which has been presently served upon the petitioner shall be treated to be a provisional assessment and the petitioner will be at liberty to file objections thereon and consequently the power corporation and the authorities shall proceed under Section 4 126 of the Electricity Act, 2003, as it is laid down and pass an order. Learned counsel for the petitioner Mr. Nagesh Agrawal undertakes that he shall file a representation with the power corporation within a period of two weeks from today. In case such a representation is made, the power corporation shall pass an order thereon after giving an opportunity of hearing to the petitioner. Learned counsel for the petitioner has given a statement at the bar that in the present recovery proceedings coercive methods are being adopted by the power corporation. Since, this Court has already observed that recovery proceedings which have been initiated against the petitioner are not in accordance with law, as laid down in Section 126 of the Electricity Act, 2003, it is hereby directed that till the matter is disposed of by the power corporation under Section 126 no coercive method will be adopted against the petitioner. With these observations, writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 30.11.2009 Avneet