Himachal Pradesh High Court
Parbati Hydroelectric Project ... vs H.P.S.E.B. Ltd. & Others on 5 July, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.4410 of 2014 Reserved on : 28.6.2016 .
Date of Decision: 05.7.2016 CWP No.4410 of 2014 Parbati Hydroelectric Project Stage-II. ......Petitioner.
of
Versus
H.P.S.E.B. Ltd. & others
rt .....Respondents.
Coram:
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting? Yes.
For the petitioner : Mr. Chandranarayana Singh, Advocate.
For the respondents : Mr. Satyen Vaidya, Senior
Advocate with Mr. Vivek
Sharma, Advocate.
Chander Bhusan Barowalia, Judge The present writ petition is maintained by the petitioner under Section 226 of the Constitution of India for issuance of writ of certiorari, mandamus or any other order quashing the order dated 10.12.2013 (Annexure P-5), passed by the learned Divisional Commissioner, Mandi (exercising the powers of Appellate Authority), in an appeal under Section 127 of the ::: Downloaded on - 15/04/2017 20:45:44 :::HCHP 2 Electricity Act, 2003, whereby the appeal of the appellant has been dismissed without affording opportunity of hearing to the petitioner/appellant and to remand the .
case back to the Appellate Authority for fresh adjudication after hearing the petitioner/appellant before the Appellate Authority.
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2. Briefly stating the facts giving rise to the present petition are that the petitioner is an rt Undertaking of Government of India and was the consumer of the respondent-Board for the consumption of electricity. The petitioner applied to the respondents for the supply of electricity for the Project and Township, which includes residential, as well as, official colony at Sainj, District Kullu, H.P, initially applied for a load of 216.77 KW in the year, 2004.
3. The respondent-Company called upon the petitioner to deposit Rs.2,17,000/- vide letter dated 26.7.2004, which was deposited in cash by the petitioner on 13.8.2004, alongwith Bank Guarantee to the tune of Rs.1,73,600/-.
4. The petitioner further applied for increase of load from the existing load of 216.77 KW to 1085 KW vide an application in September, 2005. Respondents ::: Downloaded on - 15/04/2017 20:45:44 :::HCHP 3 asked the petitioner to deposit security on account of enhanced load to the tune of Rs.3,47,000/- in cash and a Bank Guarantee of Rs.6,95,200/-. The petitioner .
deposited the security amount of Rs.3.47,000/- on 21.9.2005 along with Bank Guarantee of Rs.6,95,200/- on 2.12.2005.
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5. The petitioner further submitted an application on 24.12.2007 for extension of load to that of rt 3285.39 KW and a contract demand of 1460 KVA, as it was expected that in the near future, the petitioner would be demanding more load to run its activities and expected occupation of its residential quarters.
6. That respondent No.2, vide communication dated 26.2.2008, directed the appellant to deposit an amount of Rs.23,58,700/-. However, the said amount was on higher side and accordingly respondent No.2 issued a revised demand notice on 20.3.2008 for an amount of Rs.8,06,600/-. The said amount was deposited on 24.3.2008.
7. It has further been averred that on 17.3.2008 and 18.3.2008, officer of the respondent-Company visited petitioner's Sainj Township area and made certain inspections. However, the petitioner received a notice ::: Downloaded on - 15/04/2017 20:45:44 :::HCHP 4 dated 10.6.2008. It was further averred in the notice that upon the inspection, the connected load was found to be 4843.18 KW against the sanctioned load of .
216.77/1085.97 KW. It was further intimated that double of the amount of demand charges from March, 2007 to February, 2008 amounting to Rs.25,31,660/- and of double the amount of energy charges for the same period to the tune of Rs.27,72,314/- totaling Rs.53,03,974 may be deposited.
rt
8. It has further been averred that on receipt of the notice, the appellant submitted reply and that during the time of inspection, most of the residential premises had fallen vacant and no electricity connection was provided to those premises. It has also been averred that, in case, there was an increase in load, it would result in increase of the maximum demand, which would have been recorded in Meter Reading Instrument (hereinafter to be referred as MRI). It has also been averred that in case, there was an increase in the load during the last one year, the MRI would have immediately recorded the increase in maximum demand exceeded the contract demand which was to be 80% of the connected load (taking 0.9 factor), would have been ::: Downloaded on - 15/04/2017 20:45:44 :::HCHP 5 immediately reflected in the MRI and consequently contract demand violation charge (CDVC) would have been reflected in the monthly electricity bills. It is also .
averred that no such charges were ever levied by the respondents in monthly electricity bills during the relevant tenure. As the same was demanded without any of basis, the order was challenged before the Appellate Authority, i.e. the learned Divisional Commissioner, rt Mandi under Section 127 of the Electricity Act, who was exercising the powers of the Appellate Authority. The appeal was registered as Appeal No.156 of 2011, which was listed on 6.7.2011 and was adjourned from time to time.
9. On 27.6.2013, the Appellate Authority could not hold the Court and the case was adjourned as per the notice affixed on the Notice Board, The petitioner was not present in the Court on the next date as no notice of the next date had either been given by the Appellate Authority to the petitioner or to the learned counsel for the petitioner. As the petition was heard without any prior notice or intimation of the date either to the appellant or to the learned counsel on 10.12.2013. The same was decided without hearing the petitioner.
::: Downloaded on - 15/04/2017 20:45:44 :::HCHP 610. The respondents contested the writ petition by filing the reply and they had denied the contents of the writ petition and have averred that at the time of .
inspection, a load of 3285.39 KW was applied vide application in December, 2007, which was under
sanctioning process, but the petitioner had connected of additional load of 4843.18 KW above the sanctioned load of 216.77 KW un-authorisedly before it was sanctioned by rt the competent Authority.
11. However, the respondent has admitted that on 27.9.2013, the case was not taken up due to the administrative reasons, as the Presiding Officer could not hold the Court at Mandi, but it is averred by the learned counsel for the petitioner that the case has been adjourned intentionally and deliberately. The learned lower Appellate Court passed the following order:
"Mandi 27.9.2013.
"Due to administrative reasons, Ld. P.O. could not hold Court at Mandi today and as per his directions, this case is fixed on 25.10.2013 for the same purpose for which it was listed for today.
Parties have been informed accordingly today by pasting a notice on the notice board of this court room.
Sd/-
N.T. (Peshi) to Divisional Commissioner, Mandi Division, Mandi."::: Downloaded on - 15/04/2017 20:45:44 :::HCHP 7
12. Rejoinder was filed by the petitioner denying .
the contents of the reply and reiterated the averments, as made in the writ petition. It is further averred that it is for the respondent to intimate timely with regard to the increase/decrease of the maximum demand, as recorded of by the Meter Reader Instrument (MRI) during the relevant period and held that reading be produced on record.
rt It would have been clear that there was no unauthorized consumption of the electricity by the petitioner. It is further averred that the date was never intimated by the Appellate Authority either to the petitioner or to their learned counsel and it was the duty of the Court to communicate next date when the Court did not assemble.
13. Thereafter, on 25.10.2013, the Divisional Commissioner, passed the following order :
"Mandi.
25.10.2013 "Case was called, no one became present on behalf of the appellant. Last opportunity was granted. Now, the case be listed for 12.11.2013.
Divisional Commissioner, Mandi Division, Mandi."::: Downloaded on - 15/04/2017 20:45:44 :::HCHP 8
14. On 12.11.2013, none was present for the petitioner, but the respondent was represented by an .
Advocate and the case was listed for orders on 10.12.2013 when the appeal was dismissed.
15. To appreciate the arguments adduced by the learned counsel for the parties, I have gone through the of entire record of this case.
16. From this, it is clear that the notice was rt issued to the parties on 25.10.2013, but there is nothing on record to depict that the petitioner was served thereafter or the petitioner, had appeared in the Court on the next date, when the Appellate Authority had ordered the parties to appear in the Court on 25.10.2013, as the case had been adjourned on that day on 27.9.2013, when the Court had not assembled. So, it is clear that the appeal has been disposed of without serving the petitioner/appellant before the Appellate Authority and the same is decided without affording an opportunity of being heard to the petitioner/appellant by the Appellate Authority. Therefore, this is a fit case where the writ petition is required to be allowed directing the Appellate Authority to pass a detailed and ::: Downloaded on - 15/04/2017 20:45:44 :::HCHP 9 speaking order. The order dated 10.12.2013 (Annexure-
P-5) passed in Case No.155/2011, passed by the learned Divisional Commissioner, Mandi Division, Mandi .
exercising the powers of the Appellate Authority under Electricity Act, 2003, is quashed and set aside.
17. Consequently the present petition is allowed.
of All pending application(s), if any, shall also stand disposed of accordingly. However, parties are directed to rt appear before the Appellate Authority, Mandi, H.P. on 22.8.2016. The Appellate Authority shall dispose of the matter within a period of three months from the receipt of the copy of this judgment. Records be also sent forthwith alongwith a copy of this judgment for further compliance.
(Chander Bhusan Barowalia), 05.7.2016 Judge (M. gandhi) ::: Downloaded on - 15/04/2017 20:45:44 :::HCHP