Calcutta High Court (Appellete Side)
Metsil Exports Private Limited & Anr vs West Bengal Electricity Regulatory ... on 14 January, 2021
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
56 IN THE HIGH COURT AT CALCUTTA
14.01.2021 CONSTITUTIONAL WRIT JURISDICTION
sb
Ct23 APPELLATE SIDE
WPA 609 of 2021
(Through Video Conference)
Metsil Exports Private Limited & Anr.
Vs.
West Bengal Electricity Regulatory Commission & Ors.
Mr. S. N. Mitra, Sr. Advocate,
Mr. J. Chakraborty,
Mr. C. Shroff,
Mr. S. Shroff
.... For the petitioners.
Mr. Jaydip Kar, Sr. Advocate,
Mr. Prasun Agarwal,
Mr. Deepak Agarwal
... For DVC
Mr. Pratik Dhar, Sr. Advocate,
Ms. Sharmistha Ghosh,
Ms. Neha Chakraborty
... For the respondent no.1
Affidavit of service filed in Court today is taken on record.
The petitioner No.1 is a high-tension consumer of Damodar Valley Corporation (hereinafter referred to as DVC), having supply of electricity of 5000 KVA under a Power Purchase Agreement dated 5th June, 2018. In terms of Regulation 4.4 of West Bengal Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulation, 2011 (hereinafter referred to as the said Regulation), a provision of time block has been provided. DVC in terms of such 2 Regulation claims to be entitled to realise additional energy charges at a rate twice the applicable rate for that consumption during the time block. Such additional energy charges shall be payable in addition to the amount that is payable as energy charges for the consumption of energy in that particular time block. For example if the petitioner No.1 consumes say 1000 units then the petitioner No.1 has to pay three times of the applicable tariff for such consumption. The present writ petition was filed on 7th January, 2021. The West Bengal Electricity Regulatory Commission (in short, WBERC) in an application made by Damodar Valley Power Consumers Association (in short, DVPCA) challenging the imposition of penal charges for overdrawal during frequent restrictions like time block, passed an order on 11th December, 2020. The operative portion of the said order is set out hereunder:-
"15.0 On the basis of the observations as elucidated above and keeping in mind the penal energy charges imposed by DVC during the restricted period the Commissioner orders that -
a) DVC shall claim the energy charge rate as per the tariff order for the quantity of energy consumed by the members of DVPCA as over drawal during the restricted period of August 2018 to October 2018.
b) DVC shall make necessary amendments in the bill raised/to be 3 raised on the members of DVPCA as per the direction given in (a) above.
c) If the members of DVPCA have already made any payment towards the energy charge at a rate above the rate directed by the Commission in
(a) above for over drawal during the restricted period, the excess payment made by the members of DVPCA shall be adjusted by DVC with the future bills to be raised by DVC on the members of DVPCA;
d) In the event of shortage of powers, it is the contractual obligation of DVC to provide energy to its members even by purchasing energy from other sources available in the grid;
e) DVC should be very careful in future while imposing restriction of drawal of power on the consumers in the State of West Bengal and shall adopt such methodology so that the consumers of DVC in the State of West Bengal do not suffer for closure of their plants and/or do not become coerced to seek for over drawal. If DVC do not follow the direction as given above, DVC shall be liable to be penalised in future.
16.0 Thus the petition of DVPCA is disposed off.
14. Let a copy of the order be served upon DVPCA and DVC."
The petitioner No.1 is a member of the said DVPCA and as such, is entitled to the benefit of the 4 said order dated 11th December, 2020, passed by WBERC. The petitioners in order to avail the benefit of the said order of WBERC, adjusted the payment made for consumption of excess drawal during the time block for the month of October, 2018 from the bill of DVC raised on 2nd December, 2020. The petitioners claim to be entitled to adjustment of Rs.27,19,834/-. After adjusting the said sum from the bill raised by DVC on 2nd December, 2020, the petitioners paid the balance sum out of Rs.2,03,58,386/- being the aggregate bill value.
In view of such deduction, DVC issued a notice dated 2nd January, 2021 to the petitioners, directing the petitioners to pay the amount said to have been adjusted by them within 15 days from the date of issuance of the said notice, failing which, the supply of electricity to the petitioners will be disconnected under the provisions of Section 56(1) of the Electricity Act, 2003 (hereinafter referred to as the "said Act"). The petitioners say that the petitioner No.1 operates furnaces in its factory. If the electricity is disconnected the furnaces will stop operating thereby causing huge loss to the petitioners. The threat of disconnection as meted out by DVC is not for any arrears but for having adjusted the money to which the petitioners are entitled. The case of DVC according to the petitioners, therefor, does not come 5 within the ambit of section 56 (1) of the Electricity Act, 2003.
After going through the letter issued by the petitioners indicating the amount adjustable and the notice, I find some difference in the amounts. On the other hand, it is the contention of DVC that a sum of Rs.1,76,38,552/- has been deducted by way of adjustment by the petitioners.
On behalf of the petitioners by referring to the bill raised by DVC and annexed to the writ petition, it is submitted that there is no ambiguity in the matter as the figure sought to be adjusted by the petitioners is apparent from the bill of DVC. It is further submitted by the petitioners that the petitioners are out of pocket by the excess amount realised by DVC and, as such, DVC cannot object to the adjustment or decline the petitioners from deriving benefit of the order.
On behalf of DVC, it is submitted that they have innumerable consumers. There is no time frame in the order of WBERC for preparing the revised bills or for giving the adjustment in the order of WBERC. It will take some time to prepare the revised bill as directed by WBERC and then only the question of adjustment will arise. It may so happen that DVC instead of giving adjustment of entire amount of all the consumers at a time may frame a policy to give 6 the adjustment part by part against the future bills that may be raised from time to time, since there is no direction in the order to give the adjustment from the immediately pending bill. It is also submitted that the order of WBERC does not give the petitioners the right to adjust at their whims and that too in one go from a bill raised prior to the passing of the order.
Be that as it may, it is an admitted position that DVC has realised certain amounts from the petitioners, which DVC is required to refund by way of adjustment against the future bills. The dispute is, therefor, on the petitioners having adjusted the entire excess payment from the bill dated 2nd December, 2020 to which DVC raised an objection, on their own without waiting for the revised bill. Fact remains that the petitioners are out of pocket and DVC is holding on to the said money.
In the facts and circumstances, neither the petitioners nor DVC should be allowed to enrich themselves at the cost of each other. The petitioners are entitled to adjustment and DVC is also liable to give adjustment only the modalities of the adjustment have to be gone into. Any delay in adjustment will, however, deprive the petitioners of the benefit of the excess money they have already paid and benefit to DVC as there is no provision to pay interest for the delayed adjustment to compensate the petitioners. 7
Considering the prima facie case made out by the petitioners and the balance of convenience and inconvenience, I am of the view that the notice dated 2nd January, 2021 issued by DVC to the petitioners, threatening disconnection by invoking the provision of Section 56(1) of the said Act should be stayed for a limited period and DVC be directed to bring a detailed calculation as to the amount to which the petitioners are entitled to an adjustment. The notice dated 2nd January, 2021 appearing as Annexure "P-11" at page 67 of the writ petition, being WPA 609 of 2021 is stayed till 29th January, 2021. The matter is made returnable on 27th January, 2021 when DVC shall furnish the details of amount the petitioners are entitled to adjust.
(Arindam Mukherjee, J.)