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Allahabad HC quashes EE order, imposes Rs 1 lakh cost

The Allahabad High Court quashed an order passed by the Executive Engineer/Prescribed Authority Electricity Distribution Division II, Moradabad and said whenever an order is struck down as invalid for being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left open.

The Court observed all that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.

The Division Bench of Justice Surya Prakash Kesarwani and Justice Chandra Kumar Rai passed this order while hearing a petition filed by Navi Hasan.

The 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 the 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 the 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 CrPC No 25367 of 2021 and relating file of the petitioner may kindly be summoned for considering real controversy.”

The Court noted,

The petitioner has earlier filed writ petition (Navi Hasan Versus U.P Power Corporation Limited and 2 others), which was disposed of by the Court order dated 22.10.2021, the operative portion of aforesaid order is reproduced below:-

“Accordingly, the writ petition is disposed of with the following directions:

(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;

(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 an 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.”

Despite the aforesaid order, the respondent no 2 has passed the order dated 21.03.2022 in complete disregard of directions issued by the Court vide aforequoted order dated 22.10.2021.

The fact as aforementioned leaves no manner of doubt that the respondent no 2 while passing the impugned order was very much aware of the order dated 22.10.2021 passed by the Court in Writ-C No 26241 of 2021 and yet he deliberately ignored the direction and passed the impugned order arbitrary, illegally and in breach of principle of natural justice. The impugned order is pre-printed in which merely the name and address of the petitioner, checking report number and date, notice number and date and a sum of Rs 5,19,525 has been filled by pen. There is absolutely no consideration of the objection filed by the petitioner.

Thus, the respondent no 2 has violated the principles of natural justice and acted arbitrarily and illegally. The impugned order has been issued with a preconceived mind. Since the impugned is in pre-printed format, therefore, it appears that the respondent no 2 is habitual of passing assessment orders in the manner as aforesaid and even has no respect to the orders passed by the Court.

The Court observed,

The first and foremost principle of natural justice is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous… Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is essential that a party should be put on notice of the case before any adverse order is passed against him. It is an approved rule of fair play.

The principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice.

Expression “civil consequences” encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

The Court further observed,

Natural justice has been variously defined by different Judges, for instance a duty to act fairly, the substantial requirements of justice, the natural sense of what is right and wrong, fundamental justice and fair-play in action. Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men.

The first rule is `nemo judex in causa sua’ or `nemo debet esse judex in propria causa sua’ that no man shall be a judge in his own cause. The second rule is `audi alteram partem’, that is, `hear the other side’. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule i.e. ‘he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right’ or in other words, as it is now expressed, `justice should not only be done but should manifestly be seen to be done’. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.

“Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.

In his personal affidavit/counter affidavit, the respondent no 2 has stated that he has withdrawn the order dated 21.03.2022 by order dated 13.07.2022 without disclosing in his counter affidavit, the power conferred upon him either under the Electricity Act or under UP Electricity Supply Code, 2005 to recall/review the order.

The order has been withdrawn by the respondent no 2 during pendency of the writ petition and without leave of the court. This itself prima facie shows misconduct on the part of the respondent no 2,” the Court said.

“For all the reasons aforestated, the order dated 21.03.2022 is quashed. The respondent no 2 is directed to confront the petitioner with all adverse material within 10 days. Thereafter, the petitioner may submit his objection before the respondent no 2 within next three weeks. Thereafter, the 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 the petitioner.

The writ petition is allowed with a cost of Rs 1,00,000, which the respondent no 2 shall pay to the petitioner by account payee cheque or bank draft,” the Court ordered.

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