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SCA/213/2010 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 213 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
AMRATBHAI
MANIBHAI PATEL - Petitioner(s)
Versus
APPELLATE
AUTHORITY AND THE ELECTRICAL INSPECTOR & 1 - Respondent(s)
=========================================================
Appearance
:
MR
BM VAISHNAV for
Petitioner(s) : 1,
MS MANISHA NARSIGHANI, Assistant Government
Pleader for Respondent(s) : 1.
MR SN SINHA for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date : 27/04/2010
ORAL JUDGMENT
The
petitioner has filed this petition under Article-226 of the
Constitution of India praying
for quashing and setting aside the final order of the assessment
dated 20.2.2009 amounting to Rs.1,73,820.62 and also letter dated
15.9.2009 of the Appellate Authority and the Electrical Inspector,
Valsad. The petitioner has further prayed for the direction to the
Appellate Authority to entertain the Appeal of the petitioner under
Section-127 of the Electricity Act, 2003 against the final order of
assessment dated 20.2.2009 by condoning the delay so that the
petitioner can raise all his contentions before the said authority.
This Court has issued
rule on 13.1.2010. Rule was duly served on the respondents.
Ms.Manisha Narsinghani, learned Assistant Government Pleader appears
on behalf of the respondent No.1 and Mr. S. N.Sinha, learned
advocate appears on behalf of the respondent No.2.
Since the petitioner has
already filed an Appeal against the final assessment order, the
Court is not inclined to consider and grant main prayer of the
petitioner for quashing and setting aside the said final assessment
order. However, the Appellate Authority without going into merits of
the matter has dismissed the Appeal filed by the petitioner only on
the ground of limitation. The alternative prayer made by the
petitioner is, therefore, required to be considered and examined by
the Court.
The
final assessment order is passed on 20.2.2009 under Section-126 of
the Electricity Act, 2003. An Appeal is provided against this order
under Section-127 of the Act. Sub-section 1 of Section-127 empowers
the aggrieved party to file an Appeal within 30 days from the date
of receipt of the assessment order. The petitioner was, therefore,
supposed to file Appeal before the Appellate
Authority within 30 days from the date of receipt of the order. The
petitioner could not file the said Appeal within the prescribed time
limit. The Appeal was filed only on 23.3.2009.
Since the petitioner’s
Appeal could not be accepted by Navsari and Valsad Office, the
petitioner wrote a letter to the Appellate Authority on 14.9.2009
requesting to issue direction to accept the petitioner’s Appeal. The
Appellate Authority vide its letter dated 15.9.2009 has informed the
petitioner that since the Appeal was filed beyond the period of 30
days the said Appeal could not be accepted.
It
is true that the petitioner has not explained any reason as to why
the delay was caused in filing an Appeal before the Appellate
Authority. However, this fact was not put by the Appellate Authority
to the petitioner and no
explanation is sought for with regard to late filing of an Appeal.
As a matter of fact, the Appellate Authority has simply observed in
the order that the Appeal was not filed within the period of 30 days
from the date of the final order and hence the said Appeal could not
be accepted. The order passed by the Appellate Authority is,
therefore, in violation of the principle of natural justice and
without affording any opportunity of being heard to the petitioner.
In the above view of the
matter, the impugned order passed by the Appellate Authority on
15.9.2009 is hereby quashed and set aside and the matter is remanded
to the Appellate Authority with a direction to call for the
explanation from the petitioner with regard to condonation of delay
and if there is any substance in the explanation the same may be
condoned and the Appeal may be decided on its own merits.
The
Court has taken the above view considering the decision of this
Court in the case of Mahesh
Harilal Khamar Vs. B.N. Naransimhan & Anr., 23(2) GLR 124
as well as another decision of this Court in the case of Gujarat
Electricity Board Vs. Savjibhai Hansrajbhai @ Harjihai, decided on
17.10.2005 in Special Civil Application No.14566 of 2005,
wherein also delay in question was of 87 days and after condoning
the delay the Court has directed the authority to decide the matter
on merits.
In the above view of the
matter, the petition is allowed to the above extent. Rule is made
absolute in the above terms.
(K.
A. PUJ, J.)
kks
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