Allahabad High Court
Indian Oil Corporation Ltd. vs State Of U.P. And 3 Others on 18 January, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:8729-DB A F R Reserved on : 29.11. 2023 Delivered on : 18.01.2024 Court No. - 42 Case :- WRIT - C No. - 31555 of 2022 Petitioner :- Indian Oil Corporation Ltd. Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ankush Tandon,Sr. Advocate Counsel for Respondent :- CSC,Alok Mishra,Sunil Kumar Dubey Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
(Delivered by Prashant Kumar, J.)
1. Heard Sri Ankush Tandon, learned counsel for the petitioner and Sri M.C. Chaturvedi, learned Senior Advocate assisted by Sri Alok Mishra, learned counsel for respondent nos.3 and 4.
2. The petitioner is public sector undertaking, working under the aegis of Ministry of Petroleum and Natural Gas, Government of India. The preliminary business of the petitioner is to refine crude oil, market petroleum and petroleum products. To refine the crude oil, the petitioner has set up a refinery in Mathura. Though the petitioner had a Captive Power Plant, but it was not able to generate required amount of electrical energy, so the petitioner entered into an agreement on 30.11.1999 (hereinafter referred to as the 'Principal Agreement') with U.P. Power Corporation Limited (hereinafter referred to as 'UPPCL'), to provide a facility which is commonly known as "Parallel Operating System". The relevant clauses of the 'Principal Agreement' are reproduced hereunder:-
"Clause 5 It has been agreed by the consumer that during the continuance of this agreement in addition to the minimum consumption guarantee provided in the rate schedule Clause 5(b) at annexure-2, he shall pay to the supplier every month a charge at the rate of 10% (ten per cent) of the aforesaid minimum consumption per KVA for 44118 (corresponding to 37500 KW) which is subject to revision from time to time. At the current rate the ten per cent of MCG works out to ₹50/- per KVA per month & the amount so chargeable works out to ₹22,05,900/- month.
Provided that if in any revision, the minimum consumption guarantee is revised downwards, the consumer shall nevertheless, be liable to pay the charges under this clause at the rates as were charged and paid by consumer before the revision.
Provided always that in the event of non-payment or delayed payment of aforesaid charge by the due date specified in the bill, the consumer shall be liable to pay 'Additional Charge' as provided in rate schedule Clause 8(b) at Annex-2, without prejudice tot he right of the supplier to discontinue the parallel Operating.
Clause 19 This agreement shall subject herein before provided be and remain in force for one year from the date of commencement of supply (hereinafter called the initial period of supply) and thereafter from year to year basis on the terms and conditions herein contained.
Provided that either party shall be at liberty to determine this agreement at any time after the expiration of the initial period of supply on giving one month's notice in writing of such intention, and on the expiration of such notice, this agreement shall absolutely cease and determine, but without prejudice to the rights and remedies if any, of either party, which may have accrued or arisen hereunder in the meantime.
Provided further that if the consumer ceases taking supply of electrical energy due to any reason, he shall be liable to pay to the Supplier necessary charges as per provision made in the Regulation framed by the Supplier under Section 49 & 79 of the Electricity (Supply) Act, 1948."
3. The "Parallel Operating System" is an additional facility where one electrical system operates with the connectivity to another system in similar operating condition i.e. synchronized system having same voltage, frequency and phase difference. In a simplified form, it can be said that in case if there is any variation in voltage and frequency then the grid stabilizes the variation of voltage.
4. As per the 'Principal Agreement', the petitioner started paying for the "Parallel Operating System". Subsequently, the petitioner managed to augment its own Captive Power Plant and realized that they do not have any further requirements of the "Parallel Operating System".
5. On 3.8.2001, petitioner sent a letter to UPPCL requesting for amendment to the 'Principal Agreement' as there was no requirement of "Parallel Operating System". This was followed by a number of other similar communications requesting for deletion of clause 5 from the 'Principal Agreement' but respondent no.3 did not take any action on the communications, and continued to charge for the facility provided, though the petitioner was not using the same. However, this facility was also disconnected, which is clear from the letter dated 28.9.2006 of respondent no.3. Though the "Parallel Operating System" was disconnected, but respondent no.3 for the reasons better known to them, chose not to amend the agreement, and continued charging for the facility.
6. On 19.2.2013, a demand notice was issued by respondent no.3 to the petitioner demanding parallel Operating charges @ ₹22,05,900/- per month with effect from January 2008. The entire dues came out to ₹21,12,29,268/-.
7. It was on 19.12.2018 that a supplementary agreement to the 'Principal Agreement' was executed between the petitioner and respondent no.3, whereby, Clause 5 of the 'Principal Agreement', which was parallel Operating charge, was deleted. The relevant provisions of Clause 5 of the supplementary agreement is quoted hereunder for ready reference :
"It has been agreed by the consumer that during the continuance of this agreement in addition to the minimum consumption guarantee provided in rate schedule Clause 5(b) at annexure-2, he shall also pay to the supplier every month a charge at the rate of 10% (ten percent) of the aforesaid minimum consumption guarantee per KVA for 44118 (corresponding to 37500 KW) which is subject to revision from time to time. At the current rate the ten percent of MCG works out to ₹50/- per KVA per month & the amount so chargeable works out to ₹22,05,900/- per month.
Provided that if in any revision, the minimum consumption guarantee is revised downwards, the consumer shall nevertheless, be liable to pay the charges under this clause at the rates as were charged and paid by consumer before the revision.
Provided always that in the event of non-payment or delayed payment of aforesaid charge by the due date specified in the bill, the consumer shall be liable to pay 'Additional charge' as provided in rate schedule Clause 8(b) at Annex-2, without prejudice to the right of the supplier to discontinue the parallel Operating."
8. After execution of the supplementary agreement, a request was made by the petitioner that as they have not been using the paralleling facility since 2001, so the outstanding amount may not be charged.
9. On 4.12.2020, the bill cum disconnection notice was issued by respondent no.3, wherein disconnection date was stated to be 30.12.2020 and the parallel Operating charges was shown as arrears upto March 2019. In response to the bill, the petitioner made a representation and was in sanguine hope that the arrears of paralleling charges would be waived. However, on 1.10.2022 another demand notice was issued by respondent no.3 demanding ₹2,46,50,33,498.00/- as arrears with interest on paralleling charges. In addition to it, another bill was issued on 3.10.2022 wherein the outstanding amount towards paralleling charges was shown ₹2,46,50,33,498.00/-. Along with it they added late payment surcharge for one month, which came to ₹49,300669.96/- and total arrears of paralleling charges was shown ₹251,43,34,167.96/- as on 3.10.2022.
10. The petitioner by means of instant writ petition has challenged the disconnection notice as well as demand notice. The petitioner sought for following prayers in the writ petition:-
"I. Issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the impugned demand cum disconnection notice dated 1.10.2022 issued by Executive Engineer, Dakshinanchal Vidyut Vitran Nigam Ltd. Electricity Distribution Division-I, Mathura (Respondent no.4) demanding ₹2465033498.00/- as arrears with interest of paralleling charges (Anenxure No.30 to the writ petition).
II. Issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the impugned bill dated 3.10.2022 issued by Executive Engineer, Dakshinanchal Vidyut Vitran Nigam Ltd. Electricity Distribution Divison-I, Mathura (Respondent no.4) demanding 246,50,33,498.00/- as arrears with interest of paralleling charges alongwith LPSC (late payment surcharge) of ₹49,300,669.96/-for one month and total arrears of paralleling charges as ₹251,43,34,167.96/- (Annexure No.31 to the writ petition).
III. Issue a writ, order or direction in the nature of mandamus commanding the respondent no.3 (Managing Director, Dakshinanchal Vidyut Vitran Nigam Ltd.) to consider and decide the representation/objection dated 7.10.2022 within a stipulated period of time.
IV. Issue a writ, order or direction in the nature of mandamus commanding the respondents to refund paralleling charges paid by the petitioner from August 2001 to December 2007."
ARGUMENT OF PETITIONER
11. Before advancing the legal argument, counsel for the petitioner has placed several communications between the parties, which are as follows:-
11(A). The 'Principal Agreement' was signed on 30.11.1999 between the parties to provide "Parallel Operating System". However, the petitioner after increasing the capacity of the Captive Power Plant, no longer needed this facility, so they wrote a letter for the first time to the Power Corporation on 3.8.2001 stating that they have augmented the capacity of the captive power plant and they do not need facility of "Parallel Operating System", and asked them to stop extending the facility and stop charging for the same. In the aforesaid letter, they also asked for dropping Clause 5 from the 'Principal Agreement', as it was no more needed. This was followed by several representations given by the petitioner, which were sent on 14.2.2002, 16.10.2002, 12.2.2004 and 25.2.2004, wherein same request was made for amendment to the contract agreement.
11(B) Thereafter, on 19.5.2004, the petitioner wrote to General Manager (Distribution), UPPCL stating that they have been requested by CGM (Commercial), Lucknow to inspect the premises of the petitioner for confirming that the petitioner's system was operating in islanding mode and to ensure that there is no possibility of parallel Operating between petitioner's system and UPPCL grid. Thereafter, vide letter dated 18.6.2004, respondent no.3 has forwarded letter dated 19.5.2004 to the General Manager (Distribution), UPPCL for taking immediate action in the matter as per departmental rules. On great persuasion of the petitioner, the respondent Corporation set up high level meeting on 25.8.2004, wherein, it was decided that the team of Power Corporation would visit the premises of the petitioner and take up call on the request of the petitioner. The team visited the premises of the petitioner on 24.9.2004 and after analysing the petitioner's system, recommended for recall of the parallel Operating.
11(C) Again on 20.10.2004, the petitioner sent a request that they do not require the "Parallel Operating System" and requested to remove the facilities granted by the Corporation, which was followed by yet another representation dated 30.6.2005. Thereafter, on 3.1.2006, a report was submitted by the Committee, wherein, it was stated that petitioner's request for deletion of Clause 5 could not be entertained due to positioning of the circuit breaker and non-removal of bus bar. On 19.1.2006, petitioner again wrote to respondent no.3, referring to Committee' report on the issue of amendment of the agreement and it was categorically stated therein that the Committee Members of UPPCL have taken unilateral decision not to amend contract agreement even though it was jointly agreed by the petitioner and respondent no.3.
11(D) Another representation was sent by the petitioner on 14.2.2006 in which it was categorically stated that since the cable through which grid power was connected to petitioner's generation bus had already been dismantled and re-routed, there is no possibility of further paralleling of two systems. In the letter, it was further stated that the purpose for which parallel Operating was arranged have ceased to exist for quite a few years back, which was notified to UPPCL and was requested to amend the agreement. They further requested to discontinue the system immediately as it was causing huge financial loss which was to the tune of ₹2.5 crores per year. Thereafter, on 21.3.2006 respondent no.3 sent a letter, wherein, they admitted that site inspection was carried out by their team. Wherein, officers of both the parties had agreed that the 11 KV cable, through which the grid power was connected, has been disconnected, though the bus bar has not been removed. They further admitted that there is no "Parallel Operating System" working.
11(E) Again the petitioner sent another letter dated 28.3.2006 requesting UPPCL to amend the agreement urgently. On 6.5.2006, respondent no.3 wrote letter to the petitioner stating that after the meeting of the officers it has been decided that H.T. Cable connected in the refinery of UPPCL has been separated. Even the 11 KV circuit breaker, which was set up by UPPCL for supplying power to the refinery, has been disconnected. It was further admitted in the letter, that due to technical reason, it was not possible to remove the bus from the system. The relevant part of letter dated 6.5.2006 is being reproduced hereunder for ready reference:
"इस सम्बन्ध में आपके विनम्र संज्ञान में लाना है कि दिनांक 09.12.05 को संयुक्त रूप से मधुरा रिफायनरी मथुरा का निरीक्षण किया गया था तथा दिनांक 27.02.06 को आपके विभाग के अधिकारियों से विचार विमर्श करने के उपरान्त यह निर्णय लिया कि वर्तमान में रिफायनरी की प्रणाली का परिचालन यू०पी०पी०सी०एल० की ग्रिड से एच०टी०केबिल को पृथक कर दिया गया है। यू०पी०पी०सी०एल० को ग्रिड व रिफायनरी के सिस्टम में जो पावर हाउस में परिचालन हेतु पूर्व में 11 के०वी० के सर्किट ब्रेकर लगाये गये थे उनकी एच०टी० कनैक्शन को जोड़ने वाली केबिल को निकाल दिया गया है परन्तु बस बार अभी भी उसी अवस्था में स्थित है। इस बस को अलग हटाना तकनीकी कारणों से सम्भव नहीं है। इस संयुक्त जॉच टीम में मुख्य प्रबन्धक पी०एण्ड०यू० मथुरा रिफायनरी मथुरा के भी हस्ताक्षर है।
अतः अनुबन्ध का क्लोज नं०-5 निरस्त करना सम्भव नहीं है।"
11(F) Petitioner again sent letter on 13.5.2006 asking UPPCL/DVVNL to resolve the issue and asked them to delete clause 5 from the 'Principal Agreement'. In spite of this letter and separating the cables, the parallel operating system was not withdrawn by the respondent, and they continued charging the petitioner.
11(G) On 8.12.2006, petitioner again wrote to respondent no.3 with request for deletion of Clause 5 from the 'Principal Agreement', informing them that as per suggestions, the Grid transformer incomer cubicles may be completely isolated and sealed from their respective busbar arrangement, and as such paralleling of their system with grid will no more be possible after this modification.
11(H) Thereafter, on 14.2.2007, an office memorandum was issued by respondent no.3(DVVNL) mentioning therein, that on inspection it was found that the petitioner was not using "Parallel Operating System" as Grid incomer panel and refinery generation bus were completely sealed and separated. Further on 18.6.2007, a letter was issued by DVVNL wherein it was stated that the petitioner does not require "Parallel Operating System" and accordingly appropriate amendment be done.
11(I) On 28.9.2007, DVVNL sent letter to the petitioner admitting that a team of DVVNL had inspected the premises of the petitioner and found that grid incomer panel had been delinked from the refinery generation bus. The bus has also been sealed and hence, the refinery is not carrying out the parallel operating system from the grid. The relevant portion of the letter is being reproduced below for ready reference:-
"इस कार्यालय के पत्रांक 8060/प्र०नि०/द०वि०वि०नि०लि०/(वा०)/मथुरा रिफाइनरी दिनांक 18.06.07 के तारतम्य में अवगत कराना है कि दिनांक 14.01.07 को अधीक्षण अभियन्ता, विद्युत वितरण मण्डल मथुरा एवं अधिशासी अभियन्ता विद्युत वितरण खण्ड-प्रथम, मथुरा द्वारा उपभोक्ता के परिसर की पुनः चैंकिग की गई तो मौके पर पाया कि ग्रिड इनकमर पैनल को रिफाइनरी जनरेशन बस से विच्छेदित कर दिया गया है तथा ग्रिड इनकमर्स पैनल के रिफाइनरी बस बार व्यवस्था से विच्छेदित एवं सील्ड होने से रिफाइनरी द्वारा उ०प्र० पावर ग्रिड सप्लाई के साथ समानान्तर परिचालन नहीं किया जा रहा है तथा 11 के०वी० फीडर को अलग पैनल लगाकर पृथक कर लिया गया है जो मेन बस से पूर्णतः अलग हैं।
इस सन्दर्भ में अधीक्षण अभियन्ता, विद्युत वितरण मण्डल मथुरा के पत्रांक 10909/ वि०वि०मं० (म०) दिनांक 14.02.07 की प्रति संलग्न हैं।
अनुरोध है कि कृपया आवश्यक दिशा निर्देश देने का कष्ट करें।"
11(J) On 31.12.2007, a letter was sent by Chief Engineer (Commerce) to Chief Engineer (Distribution Region), Agra (respondent no.3) stating therein that as the petitioner has separated grid incomer panel from refinery bus, thus a new agreement be executed after removing clause of "Parallel Operating System".
11(K) In spite of this letter, DVVNL did not take any action, so the petitioner sent reminder on 1.1.2008 again requesting that they would not be paying charges for the "Parallel Operating System" as deletion of paralleling clause 5 has already been approved by UPPCL but not formally disconnected.
11(L) On the other hand, there was a serious audit objection on the petitioner, as the paralleling charges was being paid by IOCL in spite of physical removal of the paralleling facility and certification by UPPCL authorities on February 2007 itself. On 28.1.2008, the petitioner asked respondent no.3 to immediately issue a formal order of deletion of paralleling charges clause from the agreement. When DVVNL did not take any action, a reminder was sent on 12.3.2008 asking the Managing Director, DVVNL to resolve the issue. On 25.3.2008, respondent no.3 sent a letter to the petitioner stating that they will not delete Clause 5 from the 'Principal Agreement' until the "Parallel Operating System" is completely taken out from the premises of the petitioner. The relevant portion of the letter is quoted below:-
"जब तक आपके द्वारा सामानांतर परिचालन के सिस्टम को पूरी तरह से पृथक कर परिसर से हटा नहीं दिया जाता तब तक अनुबन्ध के क्लॉज़-5 में संशोधन नहीं किया जा सकता ऐसी स्थिति में पूर्व में किया गया अनुबंध ही मान्य होगा।"
11(M) Another reminder was sent by the petitioner on 16.4.2008 asking for the similar relief as sought for in letter dated 12.3.2008. Respondent no.3 on 3.5.2008 sent a very vague letter that the "Parallel Operating System" has not been removed and has only been sealed and it is not possible for the officers of the Electricity Department to go and check, hence, there is possibility of usage of "Parallel Operating System". The relevant portion of the aforesaid letter is being reproduced below for ready reference:
"अधिशासी अभियंता ने सूचित किया है कि आपने सामानांतर परिचालन सिस्टम को परिसर से न हटाकर मात्र सील किया है। अधीक्षण अभियंता (वितरण) मथुरा द्वारा भी यह अवगत कराया गया है कि आपका सामानांतर परिचालन सिस्टम आपके परिसर में काफी अंदर होने के कारण एवं विद्युत् विभाग के अधिकारियों की वहाँ तक आसान पहुँच न होने के कारण सामानांतर परिचालन के सिस्टम के उपयोग होने की सम्भावना बनती है। अतएव जब तक सामानांतर परिचालन सिस्टम को पूरी तरह से परिसर से हटा नहीं दिया जाता तब तक अनुबंध के Clause संख्या-05 में संशोधन का औचित्य नहीं बनता है।"
It is argued that this letter was just an eye wash exercise and a feeble attempt to justify their inaction.
11(N) The petitioner again sent letter on 14.11.2008 requesting the respondents to sign the revised agreement and sought for refund/adjustment of paralleling charges, which has been wrongly realized from the refinery with effect from 14.1.2007 to 31.12.2007.
11(O) In response, DVVNL again sent a letter stating that unless and until the entire "Parallel Operating System" is not removed, till then there is no question of amending clause 5. The relevant portion of this communication dated 10.12.2008 is quoted hereinbelow:
"उपरोक्त विषय के अंतर्गत आपको अवगत कराना है कि जब तक सामानांतर परिचालन सिस्टम को पूरी तरह से परिसर से हटा नहीं दिया जाता तब तक अनुबंध के क्लॉज़ सं.-05 में संशोधन का औचित्य नहीं बनता है, जिसके बारे में इस कार्यालय के पत्रांक सं-428 दिनांक 06.05.2006 के द्वारा भी अवगत कराया जा चुका है।"
11(P) Thereafter again on 3.1.2009, the petitioner sent another communication to the respondent asking them to scrap the paralleling clause from the 'Principal Agreement' but nothing was done by the DVVNL. Another representation was sent by the petitioner on 9.2.2009 for scrapping the paralleling clause from the agreement, however, as usual no action was taken by DVVNL. On 8.9.2009, the petitioner again requested DVVNL to discontinue the paralleling facility and said that if UPPCL is not satisfied with the compliance of its instructions by Mathura Refinery, then the petitioner is free to resort to clause 9 of the agreement. Again no action was taken on this representation. The petitioner again sent another similar representation dated 9.10.2009 to Chairman and M.D., UPPCL and sought for execution of fresh contract.
11(Q) On 9.1.2010, a meeting between officials of IOCL (petitioner) and UPPCL (respondent no.3) was held, wherein, UPPCL responded positively and assured that agreement will be revised and signed very soon deleting Clause 5 after constitution of a Committee by Managing Director, DVVNL.
11(R) When nothing happened, petitioner again sent a reminder on 10.2.2010 stating that as the issue of "Parallel Operating System" was pending for quite sometime, a Committee was constituted for amendment in the agreement, which has given finding that the petitioner has not completely removed the "Parallel Operating System" from its premises, which was not correct, so a new Committee should be constituted to inspect the same.
11(S) The petitioner again sent a letter on 8.11.2011 and requested respondent no.3 for refund of amount charged towards "Parallel Operating System" levied with effect from 1.4.2000 as they were unjustified to charge the same. On 15.2.2013, the petitioner again wrote to respondent no.3 asking them for modification of the 'Principal Agreement'. Thereafter, instead of carrying out the amendment in the 'Principal Agreement', on 19.2.2013, respondent no.3 sent demand notice asking the petitioner to deposit ₹21,12,29,268.00/- for "Parallel Operating System" for the period from January, 2008 to December, 2012. Even though the said demand was clearly barred by limitation and also barred by Clause 56(2) of the U.P. Electricity Supply Code, 2005.
11(T) The petitioner again sent letter on 16.4.2016 and asked for executing a new agreement and removing the paralleling clause. It was further stated that the paralleling charges are continuously being claimed by DVVNL. In spite of knowing that after removing the H.T. Cables the paralleling Operating was not being carried out, still they sent a bill of ₹48,89,95,968/-.
11(U) Yet again the petitioner wrote to DVVNL on 7.5.2016 pointing out that even though DVVNL authorities had satisfied themselves that "Parallel Operating System" was not in use and also had communicated for initiating actions for signing new agreement without paralleling charges clause. But, in spite of several communications/reminders, no action has been taken. The petitioner further requested respondent no.3 to look into the matter and to take call on the priority basis.
11(V) When respondent no.3 did not taken any action and continued billing for the paralleling charges, the petitioner once again sent a letter on 2.9.2016 pointing out all communications besides meetings held between the parties and requested to put chronological events before M.D., DVVNL for expedite action and also for waiving off the paralleling charges. Thereafter, a meeting was held between the petitioner and respondent no.3 on 23.8.2018. The minutes of the meeting shows that the 11 KV power cable from Grid transformers for "Parallel Operating System" was disconnected and completely removed from generation bus-01 and 02, which were for providing paralleling for the refinery. All old panels of generation bus 1 and 2 have been removed due to obsoleteness.
11(W) It is submitted that the respondents instead of signing the agreement again sent a cryptic letter on 27.9.2018. The operative portion of this letter is reproduced hereunder:-
"उपरोक्त तथ्यों को संज्ञान में लेने से प्रतीत होता है कि वर्तमान प्रणाली में बिना किसी आवश्यक परिवर्तन के, पैरलिंग ऑपरेशन करना संभव नहीं होगा यदि रिफाइनरी प्रशासन इस प्रणाली मैं कोई परिवर्तन करता है तो उसकी सुचना दक्षिणांचल विद्युत वितरण निगम लिमिटेड को देनी होगी तथा सम्बंधित निगम अधिकारियों को स्थल का निरीक्षण कराने के उपरांत, सहमति मिलने पर ही पैरलिंग प्रणाली में आवश्यक परिवर्तन किया जाये।"
11(X) It is further submitted that ultimately, on 19.12.2018, after 11 years of great persuasion by the petitioner, a supplementary agreement was signed. Thereafter, the petitioner sent a letter on 18.1.2019 stating that respondent no.3 is charging as per monthly bill of December 2018, the total amount of ₹101.15 crore, out of which actual paralleling charges was ₹28.90 crore and had charged ₹72.25 crore towards surcharge. The petitioner prayed to stop claiming the outstanding paralleling charges. Again, a reminder was sent on 26.2.2019 asking respondent no.3 for redressal of paralleling charges claimed by them. On 5.3.2019, an office order was issued by the Managing Director, DVVNL, whereby, a high level Committee consisting of four Members was constituted for Reversal of Paralleling Charge Claim by the petitioner, which was to be headed by Director (Commerce), DVVNL. On 3.9.2019, the petitioner again wrote letter to respondent no.3 asking them to reverse the paralleling charges as the facility has not been provided from 2001. Again another reminder was sent by the petitioner on 13.1.2020, for the same.
11(Y) Respondent no.3 again sent a letter on 30.3.2020 stating that the petitioner has paid the parallel operating charges upto December 2007 but because of the dispute they have stopped paying the same. They further claimed ₹1,07,29,48,521.00/- as parallel operating charges along with interest for period from January 2008 to March, 2019.
12. Learned counsel for the petitioner submitted that after augmentation of the capacity of the captive power plant way back in the year 2001, the petitioner wrote to respondent no.3 for discontinuing the "Parallel Operating System". In spite of writing several letters, respondent no.3 did not discontinue the facility.
13. He submitted that the entire energy produced by the petitioner's Captive Power Plant was used by them. In 2002, the petitioner informed respondent no.3 that the petitioner was keeping the electrical system in isolated condition and requested to put an end to the "Parallel Operating System" and stop charging fees for the same and to delete Clause 5 of the 'Principal Agreement'. The petitioner had sent a number of reminders informing the Power Corporation that, they were running in islanding mode and do not require to operate the "Parallel Operating System". In spite of several communications and reminder, the Power Corporation did not remove the parallel operating facility. On the contrary, it kept on charging minimum consumer guarantee. In spite of repeated reminders, the respondent did not take any decision or action and continued to take advantage of their own delay.
14. He has also placed reliance upon letter dated 28.9.2007, which states that the premises of the petitioner was inspected by the officers of DVVNL and it was found that grid incomer panel was disconnected from the refinery generation bus and the same was sealed and the refinery was not taking any facility of the "Parallel Operating System". Once the supply was disconnected by DVVNL it is not open for them to charge for minimum consumer guarantee or even ask for the same. The petitioner had throughout been writing to the respondents to disconnect the "Parallel Operating System" and to execute a fresh agreement deleting clause 5 from the 'Principal Agreement'. In spite of several requests, respondent had failed to discharge their obligation on one hand and on the other hand, they were charging petitioner an amount of ₹22,05,900/- per month. Therefore, it was submitted that it is a clear case where respondent no.3 is trying to take advantage of their own wrong.
15. Counsel for the petitioner further submitted that no opportunity of hearing was granted before issuing bills dated 1.10.2022 and 3.10.2022 along with disconnection notice. In the demand cum disconnection notice it is indicated that a six member team was constituted by respondent no.3 to investigate into the matter. However, no opportunity or information was given to the petitioner about the same. There was no adjudication of the amount claimed in the demand cum disconnection notice and the claim made was illegal, highly excessive and based on no evidence.
16. The levying of parallel Operating charges is provided in Clause 4.26(e) of the U.P. Electricity Supply Code, 2005, which is as follows:-
"4.26 (e) Where old agreements exist with the licensee, condition of paying parallel Operational charges shall prevail till the termination of the agreement."
17. Though Clause 4.26 of the U.P. Electricity Supply Code, 2005 provides for paying of parallel operating charges till the modification/termination of the 'Principal Agreement', but it does not give respondent no.3 the right to keep charging for an indefinite period, specially when the petitioner had requested them to withdraw the facility and amend the agreement. Respondent no.3 cannot take undue advantage of a provision of the Code, when they themselves have delayed in amending the agreement.
18. The concept of "Open access regime" for the first time was introduced in the Electricity Act, 2003, as per the specific industrial policy of the Central Government. Under this "Open access regime" the distribution companies and any other user have the freedom to buy electricity directly by electricity generating companies of their choice.
19. After amendment of 2003 Act, where "open access" has been introduced, the earlier agreement lost its sanctity and virtually became defunct. The term "open access" has been defined under Section 2(47) of the Act, 2003, which is quoted hereunder:-
" 'open access' means the non-discriminatory provision for the use of transmission lines or distribution system or associated facilities with such lines or system by any licensee or consumer or a person engaged in generation in accordance with the regulations specified by the Appropriate Commission."
20. Learned counsel for the petitioner further stated that after disconnection, respondent no.3 had raised bill on 19.2.2013 for the period from January, 2008 to December, 2012 for an amount of ₹21,12,29,268/-. Thereafter, another bill-cum-disconnection notice was raised on 4.12.2020, and another bill of ₹1,07,52,56,496.47 was raised on 3.9.2022 wherein date of disconnection was mentioned as 31.9.2022. Thereafter, impugned demand notice dated 1.10.2022 was issued for ₹2,46,50,33,498.00(this included paralleling charges with interest) and immediately two days thereafter, on 3.10.2022, yet another notice was issued for ₹2,51,64,15,916.21(this included paralleling charges with interest).
21. Counsel for the petitioner further submitted that the amount claimed through demand notice dated 1.10.2022 and 3.10.2022 cannot be recovered from the petitioner in terms of Section 56(2) of the Electricity Act, 2003 as the period of two years from the date when such sum became first due has lapsed. The sum has also not been shown as charges for electricity supply and as such the amount is not recoverable.
22. The relevant provisions of Section 56(2) of the Electricity Act, 2003 is quoted hereinbelow:-
"Section 56(2). Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity."
(Emphasis Supplied)
23. The word "Sum Due" in sub clause (2) to the proviso to section 56 of the Act 2003 means amount already adjudicated between the parties. In the present case there is no adjudication of any amount. In this case, after 2008 there is nothing on record to show that respondent no.3 had been raising bill and as such, they cannot recover the amount after period of two years from the date when such sum became first due. In this case, it cannot be said that the sum has become due for the simple reason that respondent no.3 themselves have disconnected the cables, which resulted in discontinuance of service with effect from September, 2007. Any demand raised thereafter is clearly barred by the provisions of Section 56(2) of the Electricity Act, 2003.
24. Learned counsel for the petitioner submitted that they were not availing the "Parallel Operating System" since 2001. After the disconnection of supply on 28.9.2007(which was acknowledged by respondent no.3 vide letter dated 31.12.2007) the payment towards the paralleling charges was made till December, 2007 and thereafter it was stopped from January 2008 after completion of due process of approval for deletion of paralleling clause as per the directives of UPPCL. Further, request was made for executing a fresh agreement, as per the approval.
25. Learned counsel for the petitioner submitted that the petitioner corporation has repeatedly requested the respondent corporation to delete clause 5 of the 'Principal Agreement' and refund of parallel charges which were paid from 2001 to 2007. He further submitted that the petitioner corporation since 2001 had been raising this issue before the respondent corporation, and it took almost 7 years for the respondent corporation to disconnect the facility which was not being used by the petitioner since 2001, and it took another 10 years by them to amend the 'Principal Agreement' and respondent no.3 could not show any valid reason for this inordinate delay in doing it. He further submitted that respondent no.3 cannot charge for a service ("Parallel Operating System"), which was already disconnected with effect from September, 2007.
26. Respondent no.3 cannot be allowed to take advantage of its own procrastination. He further submitted that captive consumers have no obligation to pay any additional surcharge under Section 42(4) even if they are not receiving electricity from the distribution company. He further submitted that levy of additional charge under any name on the captive consumer would be discriminatory. Unequals cannot be treated equally.
27. Learned counsel for the petitioner further submitted that the provisions of Section 42 and Section 9 of Electricity Act, 2003 makes it clear in case of open access, a person who established the captive generating plant for carrying the electricity, no surcharge would be leviable on him. Counsel for the petitioner cited judgment of Hon'ble Supreme Court in the matter of Maharashtra State Electricity Distribution Company Ltd. vs. JSW Steel Limited and others1 in which Hon'ble Supreme Court has held that captive consumers do not have an obligation to pay additional surcharge under Section 42(4) of the Electricity Act, even if they are not receiving electricity from the distribution licensee. The Court has further distinguished the rights of captive consumer from ordinary consumer. The Court further held that levy of additional surcharge of captive consumer would be discriminatory.
28. Counsel for the petitioner has further relied on a judgment passed by Constitution Bench of Hon'ble Supreme Court in the matter of PTC India Ltd. vs. Central Electricity Regulatory Commission2 wherein Hon'ble Supreme Court has held that the statutory provisions and regulation, as a part of regulatory frame work, intervenes and even overrides the existing contracts between the regulated entities, since this provision do cast a statutory obligation on the regulated entities to align their existing and future contracts with the said regulation.
ARGUMENT OF THE RESPONDENTS Per contra, Sri M.C. Chaturvedi, Additional Advocate General assisted by Sri Alok Mishra, appeared on behalf of respondent no.3 and made the following arguments.
29. Firstly, he submitted that the "Parallel Operating with the Supply System of Licensee" is envisaged under clause 4.26 of the U.P. Electricity Supply Code, 2005, which lays down that where old agreement exists with the licensee for paying parallel Operating charges, the same will prevail till the termination of the agreement. Since, in this case the agreement was terminated on 30.11.2018, hence, the petitioner is liable to pay the parallel Operating charges till that date.
30. He further contended that Clause 4.26 of the U.P. Electricity Supply Code, 2005 read with Clause 5 of the 'Principal Agreement' made it clear that during continuance of this agreement, the petitioner would have to pay every month of charge @ 10% of the Minimum Consumer Guarantee per KVA, which was subject to revision from time to time, which works out to ₹22,05,900/- per month at the current rate.
31. He further contended that as per clause 5 of the 'Principal Agreement' in the event of non-payment or delayed payment of aforesaid charge by the due date specified in the bill, the consumer shall be liable to pay 'Additional Charge' as provided in rate schedule Clause 8(b), without prejudice to the right of the supplier to discontinue the parallel Operating. The 'Principal Agreement' was rescinded by a supplementary agreement on 30.11.2018. That means the petitioner was bound to pay the Minimum Consumer Guarantee, which was ₹22,05,900/- per month. The demand raised by respondents vide demand letters dated 1.10.2022 and 3,10,2022 is perfectly justified and is in accordance with the provisions of Clause 4.26(e) of the U.P. Electricity Supply Code, 2005.
32. He further submitted that the petitioner has paid the Minimum Consumer Guarantee till December 2007. However, from January 2008 to 30.11.2018 (till the 'Principal Agreement' was rescinded) the petitioner is liable to pay Minimum Consumer Guarantee charge of ₹22,05,900/- per month along with late payment charges. The demand notice sent was as per the provisions of Clause 4.26 of the U.P. Electricity Supply Code, 2005.
33. The provisions of Section 56(2) of the Electricity Act, 2003 will not be applicable as the demand notice was outcome of an agreement executed between the petitioner and respondent no.3 for the payment of minimum consumer guarantee. The liability and demand against the petitioner is an outcome of the continuity of the provisions of clause 5 of the 'Principal Agreement' rather the continuity or discontinuity of the "Parallel Operating System".
34. In the supplementary counter affidavit, respondent nos.3 and 4 have stated that the petitioners have agreed that since January, 2008, regular electricity bills had been sent to them and same was agreed in communications of the petitioner dated 9.10.2009, 15.10.2009, 27.1.2011, 18.2.2013, 19.2.2013, 16.2.2015 and 7.5.2016. It was further submitted that bills from 2008 to 2018 have been sent to the petitioner every month where the parallel operating charges were charged. It was further submitted that in the bill of August, 2018, the petitioner had paid only ₹29,44,982/- but defaulted to make payment of ₹22,05,900/-, which was towards parallel Operating charges. Since the bill had been raised, so the petitioner cannot get benefit of Clause 56 (2) of the U.P. Electricity Supply Code, 2005.
ANALYSIS, REASONING & CONCLUSION
35. We have carefully considered the submissions advanced by learned counsel for the respective parties. With the able assistance, we have perused the pleadings, grounds taken in the petition, affidavits and annexures thereto and the reply filed by concerned parties.
HISTORY OF ELECTRICITY ENACTMENT:-
36. The law in the field of Electricity, came to be developed by the following enactments:-
(a) The Indian Electricity Act, 1910-The Indian Electricity Act, 1910 created the basic framework for electric supply industry in India which was then in its infancy. This Act envisaged growth of the electricity industry to private licensees.
(b) The Electricity (Supply) Act, 1948- The Electricity (Supply) Act, 1948 mandated the creation of State Electricity Board to address the issues of tariffs and to provide for distancing of the Government from determination of tariffs.
(c) The Electricity Regulatory Commissions Act, 1998-The Electricity Regulatory Commissions Act, 1998 has been framed. For encouraging private sector participation in generation, transmission and distribution, the need for harmonizing and rationalizing, the provisions in Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948.
(d) U.P. Electricity Reforms Act, 1999, under this Act, U.P. Electricity Regulatory Commissions was assigned with function to regulate the distribution, supply, utilization of electricity, issue licenses to regulate the working of licensees and to set the standard of services for the consumer as well as standards for the electricity industry in the State.
(e)Electricity Act, 2003-In this a new Act has been framed by the Parliament which is 'Electricity Act, 2003'. It was made applicable on 9th June 2003, as a self-contained comprehensive legislation, which replaced the existing legislations while preserving their core feature.
(f) In accordance with Section 50 of the Electricity Act, 2003, the U.P. Electricity Supply code, 2005 was notified with effect from 14.9.2006.
ANALYSIS
37. After hearing the parties, we feel that the issues which need to be adjudicated upon are as follows:-
(I) Whether the petitioner is bound to pay the minimum guarantee charges for "Parallel Operating System" as per Clause 4.26 of the U.P. Electricity Supply Code, 2005 read with Clause 5 of the 'Principal Agreement'?
(II) Whether respondent no.3 can continue charging for a service which was discontinued by them with effect from September, 2007?
(III) Whether a Company/Corporation can keep on charging for a facility, which is no longer needed by the consumer, specially after the consumer had specifically asked the Company to stop/discontinue the facility?
(IV) Whether respondent no.3 can take advantage of their own procrastination and continue charging fees while not amending the agreement which the petitioner had continuously been asking for?
38. As far as payment of minimum guarantee charges for "Parallel Operating System" as per Clause 4.26 of the U.P. Electricity Supply Code, 2005 read with Clause 5 of the 'Principal Agreement' is concerned, we have to first deal with Clause 4.26 of the Code, 2005, which makes it clear that wherever there is an agreement existing prior to when the Code was introduced, for payment for parallel Operating charges, the same will prevail till the termination of the agreement.
39. The levy of parallel Operating charges and tariff are governed by respective State Electricity Regulatory Commissions formed under the Electricity Act, 2003. Section 50 of Electricity Act, 2003 provides for empowering commissions to specify the code for electricity charges. Accordingly, U.P. Electricity Supply Code, 2005 was brought in force containing the provisions with regard to the Parallel Operating Charges. Clause 4.26 is quoted hereinbelow:-
"4.26 Parallel Operating with the Supply System of Licensee
(a) In case a consumer desirous to operate his generating equipment in parallel with the grid, the consumer shall arrange his installation to protect it from disturbances in the Licensees system.
(b) The Licensee shall not be liable for any damage caused to the consumer's plant, machinery and apparatus on account of such parallel Operating, or any adverse consequence arising thereof.
(c) For parallel Operating with the grid, the consumer shall have to follow the provisions of the UP Electricity Grid Code and other relevant regulations and shall pay synchronizing charges as approved by the Commission.
(d) The actual Operatings shall be carried out in coordination with the STU and the Licensee.
(e) Where old agreements exist with the licensee, condition of paying parallel Operatingal charges shall prevail till the termination of the agreement."
(Emphasis Supplied)
40. The plain reading of Clause 4.26 of the U.P. Electricity Supply Code, 2005 read with Clause 5 of the 'Principal Agreement' makes it abundantly clear that during the subsistence of the 'Principal Agreement', the petitioner was under an obligation to pay minimum guarantee charges and as per Clause 8(b) of the 'Principal Agreement', has to pay additional charges until the agreement prevails. But here the petitioner sought for the amendment of the Agreement in 2001, but this request was kept pending for 17 years by respondent no.3. Since, the entire delay was on part of respondent no.3, hence, the benefit of Clause 4.26(d) of the Electricity Supply Code, 2005 and Clause 8(b) of the agreement cannot be granted to respondent no.3. However, this is a clear case where respondent no.3 is trying to take advantage of their own delay. The petitioner had been writing to respondent no.3 since 2001 to discontinue the facility provided by respondent no.3 as they were not using the same and to amend the 'Principal Agreement', but respondent no.3 chose not to do the same. It is not open for respondent no.3 to hide their inaction/inefficiency, under the cover of Clause 4.26 of U.P. Electricity Supply Code, 2005, though Clause 4.26 clearly states that the licensee has to pay for the Parallel Operating Charges till the agreement is terminated. Here, in spite of several reminders, respondent no.3 never terminated or amended the agreement, hence, they will not be allowed to take advantage of their own default, or delay in taking a decision and amending the 'Principal Agreement'.
41. Now, the issue is whether respondent no.3 can charge for the services for the period when the services were discontinued but the agreement was not modified.
42. Since, the respondent was not providing any service but at the same time not modifying the agreement, they should not be given advantage of their own delay, and allow them to make a profit of their own default.
43. Evidently, the communications of respondent no.3 themselves make it clear that HT cable was disconnected by them, which means that the Parallel Operating Services were no longer provided to the petitioner. Hence, it is not open for respondent no.3 to charge the petitioner for services which evidently is not being provided to them.
44. Now the issue as to whether the Company can charge for a facility which is no longer needed by the consumer and the consumer had been requesting the Company to stop/discontinue the facility.
45. The bill issued on 4.12.2020 was for ₹1,07,29,48,521.47, thereafter on on 1.10.2022 the same became ₹2,46,50,33,498/- which was again amended on 3.10.2022 and raised to ₹2,51,43,34,167.96. There is no rationale behind such escalation. Hence, we come to the conclusion that respondent no.3 ought to have disconnected this facility as soon as the petitioner has asked for. Then after a delay of 6 years, once respondent no.3 got up from slumber, disconnected the facility which reflects from their letter dated 28.9.2007, it is not open for respondent no.3 to charge for the facilities which they had disconnected in September, 2007.
46. Very often it is seen that a Company, who had entered into an agreement to provide a facility, in spite of the consumer requesting them to stop the facility, they continue with the service/facility and keeps on charging its consumer, under the mask that there is an agreement, and they purposely delay in cancelling the agreement and continue billing and charging the consumer and make profit from their own inaction.
47. However, the petitioner had continued to pay the minimum guarantee charges for few months even after disconnection of the cables without any demur, hence, it is not open for them too to ask for refund of the fees already paid. However, it is also not open for respondent no.3 to charge for Parallel Operating facility for the period from January 2008 to 30.11.2018.
48. Now the issue is whether respondent no.3 can take advantage of their own default/delay in amending the agreement.
49. Before adverting to the issues, we find it appropriate to the share the saying, which is apt in this case and reads as follows:-
"If you choose to not deal with an issue, then you give up the right of control over the issues and it will select a part of least resistance.
-Susan Del Gatto"
50. Apparently, it is a clear case where respondent no.3 is trying to take advantage of its dominant position and is trying to take undue advantage of Clause 4.26(e) of the Electricity Supply Code, 2005 and Clause 8(b) of the 'Principal Agreement'. Though the ground reality was they knowingly chose not to carry out the amendment in the 'Principal Agreement', so that they can keep billing the petitioner.
51. Hon'ble Supreme Court in the matter of M.K. Shah Engineers and Contractors vs. State of M.P.3 has held that no one could be permitted to take advantage of one's own wrong. This case is squarely covered with the doctrine of "commodum ex injuria sua nemo habere debet" which explains no party can derive benefits of its own wrong. The Court held as under:-
"17. No one can be permitted to take advantage of one's own wrong..........A closer scrutiny of clause 3.3.29 clearly suggests that the parties intended to enter into an arbitration agreement for deciding all the questions and disputes arising between them through arbitration and thereby excluding the jurisdiction of ordinary civil courts. Such reference to arbitration is required to be preceded by a decision of the Superintending Engineer and a challenge to such decision within 28 days by the party feeling aggrieved therewith. The steps preceding the coming into Operating of the arbitration clause though essential are capable of being waived and if one party has by its own conduct or the conduct of its officials, disabled such preceding steps being taken, it will be deemed that the procedural prerequisites were waived. The party at fault cannot be permitted to set up the bar of non-performance of prerequisite obligation so as to exclude the applicability and Operating of the arbitration clause."
52. It has been held that if one party delays, procrastinates or not take a decision, it will be deemed that the procedural prerequisites are waived. Hence, the respondent no.3(DVVNL) cannot take any advantage of its own default and the prerequisite procedural of amending the agreement (which was amended later on) should be deemed to have been waived off, within a reasonable time from the date when the petitioner asked for the amendment of agreement and discontinuance of the service which the respondent was providing.
53. In Mrutunjay Pani v. Narmada Bala Sasmal, AIR 1961 SC 1353, the Hon'ble Supreme Court observed as under:
"5.......The same principle is comprised in the Latin maxim commodum ex injuria sue nemo habere debet, that is, convenience cannot accrue to a party from his own wrong. To put it in other words, no one can be allowed to benefit from his own wrongful act."
54. Hon'ble Supreme Court in the matter of Kusheshwar Prasad Singh vs. State of Bihar and others4 has held as follows:-
"12. .................The appellant is right in contending that final statement statement ought to have been issued immediately or in any case within "reasonable time". The authority cannot neglect to do that which the law mandates and requires doing. By not issuing consequential final settlement under Section 11(1) of the Act, the authority had failed to discharge its statutory duty. Obviously, therefore, the appellant is justified in urging that such default in discharge of statutory duty by the respondents under the Act cannot prejudice him. To that extent, therefore, the grievance of the appellant is well founded.
13. ..............The appellant, therefore, is right in contending that the authorities cannot be allowed to take undue advantage of their own default in failure to act in accordance with law and initiate fresh proceedings.
X X X X
16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong."
55. In the matter of The Chairman, State Bank of India and another vs. M.J. James5 Hon'ble Supreme Court has held as follows:-
".................It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken up to gain any advantage and benefit, which aspects have been noticed in Dehri Rohtas Light Railway Co. Ltd. vs. District Board, Bhojpur6 and State of Maharshtra v. Digambar7. These facets, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. These have bearing on grant and withholding of relief. Therefore, we have factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment."
56. In Broom's Legal Maxims (10th Edn.), p.191 it has been stated as follows:-
"It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
57. Hon'ble Supreme Court in the matter of Nirmala Anand vs. Advent Corporation (Pvt.) Ltd. And others8 has held that the respondents cannot take advantage of their own wrong and that would amount to unfair advantage.
58. Hon'ble Supreme Court in catena of judgments starting right from Mrutunjay Pani v. Narmada Bala Sasmal, Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, Kusheshwar Prasad Singh v. State of Bihar and others, The Chairman, State Bank of India and another v. M.J. James has throughout held that the authorities cannot be allowed to take undue advantage of their own default in failure to act in accordance with law within a reasonable time. In this case, respondent no.3 has taken 7 years to take a decision and to disconnect the "Parallel Operating System" provided to the petitioner and took 10 years thereafter to amend the 'Principal Agreement'. In spite of the fact that the petitioner kept on requesting respondent no.3 to amend it. Respondent no.3 under no stretch of imagination can be permitted to take undue advantage of their own default. Hence, it will not be open for respondent no.3 to bill the petitioner for the facilities, which were disconnected with effect from 28.9.2007 and they cannot ask for further payments till the agreement was amended. In fact, the delay in amending the agreement was solely attributable to respondent no.3.
59. The instant case is squarely covered with the ratio of the above judgment. In this case petitioner was continuously asking respondent no.3 to amend the contract as it was not using the facility, and respondent no.3 took 17 long years to amend the contract. Hence, it will not be open for respondent no.3 to bill the petitioner for the delay which is attributable to them.
60. Apparently, in this case the respondents agreed that the facilities of "Parallel Operating System" has been disconnected with effect from 28.9.2007, hence, there is no question of raising any bills. Even the delay of 10 years, thereafter, in execution of the supplementary agreement, which was admittedly after much persuasion of the petitioner on 30.11.2018, cannot be attributed to the petitioner. It is clear that with effect from 28.9.2007 the facilities have been disconnected, so any demand raised for the period, thereafter, is incorrect and hereby set aside. Further any demand raised for providing services of "Parallel Operating System" and any interest charged on it is incorrect and illegal and hence, the same is also set aside.
61. Record also reflects that even though time to time bills were raised by UPPCL even though they were fully aware and conscious of the fact that the "Parallel Operating System" was not being utilized and except raising the bills they have not made any sincere efforts to realize the outstanding bills as per the provisions of the Act. In such a situation, Section 52 would also be attracted, wherein, specific limitation is provided. We notice that usually, in case, consumer makes a default of payment of bills, the Electricity Department not only disconnects the supply but also takes recourse to realize the amount. On this score, the entire record is silent. The respondent Corporation (i.e. UPPCL) has not brought anything on record to indicate that they have taken any recourse to effectively realize the outstanding demand. Therefore, we can safely say that in case law of acquiescence is attracted against the petitioner to challenge the alleged bill but at the same time the law of acquiescence will also be attracted against the respondent Corporation, which except silently raising the bills had not made any sincere efforts to effectively realize the outstanding amount.
62. Admittedly, during the disputed period the respondent-Corporation had never come across with any concrete evidence that the petitioner had infact utilized the "Parallel Operating System".
63. In such eventuality, even though UPPCL is armed with all statutory backing to realize the outstanding bills, they had not realised the amount either through recovery citation or approached the competent forum/Court for realisation of the disputed bills.
64. However, since the petitioner had paid charges for the parallel operating facility till 2007, without any demur so they cannot ask for its refund. However, the bill raised for the period from January 2008 to 30.11.2018 is incorrect. Evidently, the cable was disconnected by respondent no.3 and no service was provided, so there is no question of raising any charges for this period. They cannot keep charging for 10 years on the ground that the agreement was not amended and specially when the delay of these 10 years was totally attributable to respondent no.3.
65. Accordingly, the demand notice dated 1.10.2022 and the bill dated 3.10.2022 are quashed.
66. With the aforesaid observations, the writ petition stands allowed.
Order date : 18.01.2024 Manish Himwan