Sufficient Inbuilt Remedies Available Under J&K Electricity Act To Challenge Provisional Assessment, Writ Not Maintainable: High Court

The observations were made by Justice Wasim Sadiq Nargal while hearing a plea challenging an order in terms of which the respondent J&K Power Development Department had imposed an excess load penalty and disconnected the electricity supply to the petitioner-school.

In its plea the petitioner-school assailed the action of the respondents in imposing excess load penalty and disconnection of the electric connection on the ground that no reason for excess load penalty has been disclosed thereby resulting in the violation of principles of natural justice.

The petitioner-school also contended that the respondents had flagrantly violated the provisions of the J&K Electricity Act, 2010 and Rules framed thereunder as the order of disconnection was passed without providing 15 days notice in writing as per the provisions of Section 50(1) of the J&K Electricity Act, 2010.

Contesting the plea the respondents submitted that a huge theft of power had been going on in the petitioners premises/school which had been take serious note of by the respondents and accordingly a penalty amounting to Rs.3,84,805/- was imposed for unmetered/hooking, strictly in terms of J&K SERC Tariff Order for the financial year 2012-13.

Dealing with the matter at hand Justice Nargal observed that the Section 86 of the J&K Electricity Act 2010 clearly prescribes that if on an inspection of any place or premises, the assessing officer comes to the conclusion that a person is indulging in unauthorized use of electricity, he shall provisionally assess the electricity charges payable by such person and the order of provisional assessment would be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

Pointing out to the inbuilt remedy available to a person aggrieved of such provincial assessment the court observed that Sec 86(3) of the Act entitles him to file objections against the provisional assessment before the assessing officer, who after affording reasonable opportunity of hearing to such person, is required to pass final assessment order.

In view of the law in vogue squarely applicable to the instant matter the court pointed that the petitioner has not chosen to file any objection to the assessment so made and straightway come to the High Court through the medium of present writ petition.

Elaborating further on the remedy available against the final assessment order inscribed in the statute the court observed that Section 87 in clear terms provides for an appeal against the final order of assessment and hence a writ petition cannot be held maintainable in view of the availability of alternate remedy provided under the Act itself.

Observing that when statutory and equally efficacious remedy is available the writ petition should not be entertained and the party concerned should be relegated to such alternative remedy, Justice Nargal recorded,

"I don't find it a case, which is covered by the exceptions to the general rules that in the face of alternate and efficacious remedy, the Constitutional Court would entertain the present writ petition under Article 226 of the Constitution of India".

Accordingly the bench declined interference and dismissed the petition with a liberty to the petitioner to pursue the matter ny availing the remedy of statutory appeal under the Act without being bound by the period of limitation.

Case Title: JK Montessori School Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 11

Coram: Justice Wasim Sadiq Nargal

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