Jharkhand High Court
Anindita Steels Limited Having Its ... vs Tata Power Co. Ltd. & Ors (Supra) on 24 April, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No. 45 of 2016
Anindita Steels Limited having its office at
Panchwati Tower, Harmu Road, Ranchi through
Its Director Shri Anupam Sinha ............Petitioner
Vrs.
1.Jharkhand Bijli Vitran Nigam Limited through its Managing Director, Ranchi
2.Managing Director, JBVNL, Ranchi
3.General Manager cum Chief Engineer, Electric Supply Area, Hazaribag, JBVNL
............. Opposite Parties
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Petitioner : Mr. Pandey Neeraj Rai, Adv.
For the Opposite Parties : M/s Ajit Kumar, Sr. Adv., Navin Kumar, Adv.
17/24.04.2018 Heard learned counsel for the parties.
2. Petitioner seeks review of the order dated 05.02.2016 passed in C.M.P.
No. 431 of 2015 by this Court pursuant to the liberty granted by the Hon'ble
Supreme Court vide order dated 05.07.2016 passed in Special Leave to
Appeal (C) No.15581 of 2016 (Annexure-2). The order of the Apex Court
dated 05.07.2016 passed in the aforesaid S.L.P. and the order dated
05.02.2016 passed by this Court in C.M.P. No. 431 of 2015 are quoted
hereunder for better appreciation:-
"Special Leave to Appeal (C) No.15581 of 2016
Upon hearing the counsel the Court made the following
ORDER
Having regard to the nature of the order passed by the High Court in LPA Nos. 446/2010 and LPA No.465/2010, in operative portion of the order, the High Court opined:
"....the respondents shall be entitled to the interest over the excess recovery made by the appellants from 17th September, 2010 i.e. from the date of the order passed by the learned Single Judge. The award of the cost is also quashed."
Learned counsel for the petitioner submits that even the aforesaid relief has not been granted by the learned Division Bench.
In view of the above; it is open for the petitioner to move the High Court for review of the impugned judgment and order, placing reliance upon the observations made in LPA Nos. 446/2010 and LPA No. 465/2010. If such an application is filed, the same shall be considered and decided in accordance with law without being influenced by the observations made in the impugned judgment and order.
The special leave petition is disposed of with the aforesaid direction. Pending application(s), if any, stand(s) disposed of."
"C.M.P. No. 431 of 20151. Through the instant civil miscellaneous petition/application Anindita Steels Limited (formerly known as Anindita Trades and Investments Limited), who was admittedly not the party either in W.P.(C) No. 2613 of 2010 or W.P.(C) No. 2626 of 2010 and in LPA No. 466 of 2010 (clubbed in L.P.A. No. 465 of 2010) is now seeking the clarification vis-à-vis interest part as reflected in paragraph-17 of the judgment dated 05.07.2011, handed down in the aforesaid two L.P.A.s may be with regard to other consumers (respondents in L.P.As) but the same has been made applicable in the case of the present 2 petitioner as well.
2. It has been brought to our notice by Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioner, that the petitioner had also knocked the door of the Contempt Court by filing Cont.Case(C) No.260 of 2012, which was withdrawn with a liberty to file application before this Court for interpretation/clarification of paragraph-17 of the judgment dated 05.07.2011 passed in aforesaid two L.P.As. This situation arose on account of the show cause filed by the opposite parties-Board before the Contempt Court.
3. At the very outset, Mr. Ajit Kumar, learned Senior Advocate, appearing for the opposite parties-Board stated at the Bar that the Board had filed SLP before the Hon'ble Supreme Court not only against the order dated 05.07.2011, passed in the aforesaid two L.P.As but against the order dated 28.09.2010 also passed in W.P.(C) No. 2377 of 2009, a writ application filed by the petitioner, straightway, the issue cropped up being the same and the said SLP was dismissed after issuing notice to the opposite side, which fact is admitted by Mr. Pandey Neeraj Rai.
4. In the aforesaid factual backdrop, we are not inclined to entertain the instant civil miscellaneous petition/application for clarification/interpretation of paragraph-17 of the judgment dated 05.07.2011 passed in LPA No. 466 of 2010(connected with L.P.A. No. 465 of 2010). It is dismissed accordingly."
3. It is pertinent to refer in brief some more background of the litigation. Writ petitions were filed by M/s Laxmi Business & Cement Co. (P) Ltd., Hazaribag and M/s Laxmi Ispat Udyog, Koderma being W.P.(C) No. 2613 of 2010 and W.P.(C) No.2626 of 2010 respectively seeking setting aside of the energy bills from May 2005 onwards raised on the basis of 75% of their contract demand; to adjust/refund the excess amount realized with interest and to revise the bills in terms of the existing tariff. Learned Single Judge on consideration of the rival pleadings of the parties posed the following question for determination:-
"The only question is whether the impugned bills raised on the basis of 75% of the contract demand are as per Tariff Oder 2003-04, or they are illegal, arbitrary and malafide?"
4. By the judgment dated 17.09.2010 passed in the aforesaid writ petitions, the impugned demands were quashed and the Board was directed to revise the bills on the basis of the Tariff Order 2003-04 and refund/adjust the amount realized, if any, on account of the impugned bills, along with interest in terms of Clause 11.10.3 of the Supply Code Regulations 2005. The Board was also directed to apply the order to all similarly situated consumers to avoid multiplicity of litigations. Petitioner also filed W.P.(C) No. 2377 of 2009 challenging the bills of demand charges on 75% of the contract demand. The writ petition preferred by the present petitioner stood decided by the same learned Single Judge by order dated 28.09.2010 along with 3 other analogous writ petitions applying the judgment passed in the case of M/s Laxmi Business & Cement Co. (P) Ltd., Hazaribag (Annexure-2).
5. Respondent Jharkhand State Electricity Board in the meantime preferred L.P.A. No. 466 of 2010 and 465 of 2010 being aggrieved by the 3 judgment rendered by the learned Single Judge in the case of M/s Laxmi Business & Cement Co. (P) Ltd., Hazaribag and M/s Laxmi Ispat Udyog, Koderma (Supra). Learned Division Bench of this Court by judgment dated 05.07.2011 (Annexure-3) held that after come into force of the Electricity Act 2003 and constitution of the Jharkhand State Electricity Regulatory Commission and issue of Tariff Order by the said Commission, the Electricity Board has no jurisdiction to charge as per the earlier Tariff Order of 1993 or the contract. The Appellant Board had also questioned the award of interest on the ground that consumer has been paying demand charges as demanded by the Electricity Board and has raised the dispute by filling writ petition in the year 2010. Learned Division Bench found force in the submission of learned counsel for the Board on this count and observed that for the simple reason that the Respondent approached this Court by preferring writ petitions in the year 2010 only, they cannot be held entitled to interest for all the amount which they have already paid to the appellants whenever they received the electricity bills. Learned Division Bench therefore was of the considered opinion that Respondent shall be entitled to the interest over the excess recovery made by the Appellant from 17.09.2010 i.e., from the date of the order passed by learned Single Judge. The cost awarded by learned Single Judge was also quashed. For better appreciation, para 14 to 18 of the instant judgment is quoted hereunder:-
"14. Therefore, after the Act of 2003 and constitution of the Electricity Regulatory Commission and issuing Tariff Order by the said Commission, the Electricity Board has no jurisdiction to charge as per the earlier Tariff Order of 1993 or the contract which has been made a live contract by Clause 11 and contains not only stagnant conditions and those terms and conditions mentioned in the contract in consonance of Tariff Order/Schedule stand automatically changed and modified in accordance with the amendment in Tariff Order. The clauses like Clause 11 are made in the contract so that upon change in law or bylaw, the parties need not to execute fresh contract again and again.
15. It would be worthwhile to mention here that in view of provisions of Section 61 and 62 of the Electricity Act, the jurisdiction to prescribe tariff has been exclusively given to the Electricity Regulatory Commission and in view of the laws laid down by the Hon'ble Supreme Court in BSES Ltd. Vs. Tata Power Co. Ltd. & Ors (supra), the Electricity Board has no jurisdiction to charge beyond the Tariff Order of 203-04.
16. In view of the above reasons, so far merit in the L.P.As is concerned, we find none.
17. Learned counsel for the Board submitted that the award of interest cannot be justified in the matter where the consumer paid the Demand Charges as demanded by the Electricity Board and has raised dispute by filing writ petition in the year 2010. We find some force in the submission of the learned counsel on this count because of the simple reasons that the respondents approached this Court by preferring writ petitions in the year 2010 only and, therefore, the respondents cannot be held entitled to interest for all the amount which they have already paid to the appellants whenever they received the electricity bills. In view of the above 4 reasons, we are of the considered opinion that the respondents shall be entitled to the interest over the excess recovery made by the appellants from 17th September, 2010 i.e, from the date of the order passed by the learned Single Judge. The award of the cost is also quashed.
18 Hence, the L.P.As are partly allowed to the extent of revision in interest in the terms aforesaid.
6. Aggrieved thereby, JSEB preferred Special Leave to Appeal (Civil) No. 22047 of 2011 which upon leave being granted was converted into Civil Appeal No. 2909 of 2014 and decided along with other Civil Appeal Nos. 2910 of 2014, 2911 of 2014 and 2913 of 2014 by the judgment dated 28.02.2014. Hon'ble Supreme Court did not find fault in the judgment of the High Court under appeal on the issue of raising of contract demand under 1993 Tariff after coming into force of the Electricity Act 2003 and the Tariff Schedule 2004 framed by the JSERC. The Appellant Board had also raised the question relating to refund of the excess amount charged on the bills raised for earlier period, based on the submission that writ petitions were filed in the year 2010 after delay and latches of 5 years and that it would be unjust enrichment to the consumers who would have recovered the amount from the user of the electricity. The Apex Court brushed aside the plea of unjust enrichment while observing that it is not a case of payment of tax which is a burden passed on the consumers. Para 107 of the Constitution Bench judgment in the case of Mafatlal Industries Ltd. Vrs. Union of India reported in (1997) 5 SCC 536 was also relied. As such the challenge to the judgment of the learned Division Bench of this Court in L.P.As, failed. The Civil Appeals were dismissed.
7. It is apparent from perusal of the order dated 05.02.2016 passed by this Court in C.M.P No. 431 of 2015 that learned counsel for the Board had informed that S.L.P had been filed by the Board not only against the order passed in the aforesaid two L.P.A.s but also against the order dated 28.09.2016 passed in W.P.(C) No. 2377 of 2009 i.e., in the writ petition filed by the petitioner.
8. In the chronology of facts, it needs to be mentioned herein that the present petitioner filed a contempt case being Contempt Case (Civil) No. 260 of 2012 alleging willful disobedience of the order passed in W.P.(C) No. 2377 of 2009 on the part of the Respondent Board. The orders passed in contempt case is enclosed to the present petition starting from page 115 onwards (Annexure-8). From perusal of the order passed in the contempt case it appears that the Respondent Board brought it to the notice of the Court that it had already adjusted the amount to the extent of Rs.7,36,680/- in the current bill of the petitioner. According to the Board, whatever amount petitioner was 5 entitled as per the order of this Court, was already given to him. Revised bill was produced by learned Senior Counsel for the Board Mr. Ajit Kumar who also represents the Board in the present case (order dated 23.07.2015). Petitioner thereafter filed supplementary affidavit claiming that he is entitled to get Rs. 8,51,077/- towards interest as per the tariff (order dated 06.08.2015). The Board then sought to file a rejoinder to the said supplementary affidavit. However on 03.09.2015 petitioner sought permission to withdraw the contempt application with a liberty to file application before the Division Bench for interpretation/clarification of paragraph-17 of the judgment dated 05.07.2011 passed in L.P.A. No. 466 of 2010 in the case of M/s Laxmi Business & Cement Co. Pvt. Ltd. The contempt petition was dismissed as withdrawn with the said liberty.
9. Taking cue from the liberty granted by the learned Single Judge in the contempt case, C.M.P. No. 431 of 2015 was preferred by the petitioner herein inter alia seeking interpretation/ clarification of the observation made by the learned Division Bench in Para 17 of the judgment dated 05.07.2011 in the case of of M/s Laxmi Business & Cement Co. (P) Ltd., Hazaribag and M/s Laxmi Ispat Udyog, Koderma in L.P.A No. 466 of 2010 and L.P.A. No. 465 of 2010 respectively. It further appears that a prayer was also made for clarification in the nature "that there by the appellant therein were made liable and respondents therein were made entitled to interest payable w.e.f. 17.09.2010 i.e., from the date of the order passed by the learned Single judge and that such interest shall be charged / calculated over the excess recovery made from the consumers." In this factual background and legal position as determined by the judgment of the Apex Court in Civil Appeal No. 2909 of 2014 along with Civil Appeal Nos. 2910 of 2014, 2911 of 2014 and 2913 of 2014, learned Coordinate Bench by order dated 05.02.2016 refused to entertain the prayer for clarification/ interpretation of paragraph-17 of the judgment dated 05.07.2011 and dismissed the C.M.P. Petitioner seeks review thereof.
10. It appears that petitioner during course of proceedings in Special Leave to Appeal (C) No.15581 of 2016 informed the Apex Court that relief granted as per Paragraph 17 of the judgment of the learned Division Bench in L.P.A. No. 466 of 2010 and L.P.A. No. 465 of 2010 had not been granted to the petitioner. Learned counsel for the petitioner in support of the challenge made to the impugned order has taken us to the observation made by the learned Division Bench at Paragraph 17 in L.P.A. No. 466 of 2010 and L.P.A. No. 465 of 2010 (quoted above). It is submitted that the learned Division Bench 6 by observation made in the concluding portion of Para 17 has intended to allow interest to the respondents (writ petitioner) over the entire excess recovery made by the appellant Board but only w.e.f. 17.09.2010 i.e. from the date of the order passed by learned Single Judge. The observation made by learned Division Bench would not be intended to mean that interest would be payable only over the excess recovery made on and from 17.09.2010. It is submitted that the respondent Board refused to pay interest on the ground that all such payments against the impugned demands were made by the petitioner before 17.09.2010 and no payments were made nor were recovered after 17.09.2010 i.e., from the date of order passed by the learned Single Judge. Petitioner had sought interpretation/ clarification of the aforesaid observation in C.M.P. No. 431 of 2015 which the learned Division Bench has erroneously declined. The impugned judgment therefore deserves to be recalled and the C.M.P be heard afresh on the point.
11. Learned Senior Counsel Mr. Ajit Kumar representing Jharkhand Bijli Vitaran Nigam Limited (JBVNL) successor to JSEB submits that the observation made by learned Division Bench at Para 17 in the case of M/s Laxmi Business & Cement Co. (P) Ltd., Hazaribag and M/s Laxmi Ispat Udyog, Koderma in L.P.A No. 466 of 2010 and L.P.A. No. 465 of 2010 is unambiguous and not susceptible to any other meaning. He has placed the observation made at para 17, especially the preceding sentence of the concluding lines. He submits that learned Division bench in the preceding lines of the same para clearly held that "the respondents cannot be held entitled to interest for all the amount which they have already paid to the appellants whenever they received the electricity bills". The observation of learned Division Bench relating to entitlement of the interest over the recovery made in excess from 17.09.2010 i.e., from the date of the order passed by learned Single Judge has been uniformly applied to the case of all the parties affected. In such circumstances the impugned order passed by learned Division Bench of this Court does not suffer from any such error which warrants review. The revised bills and adjustment of the amount recovered prior to 17.09.2010 were produced before the Court in the contempt case. The plea of interest over the entire amount recovered pursuant to the impugned demand even prior to 17.09.2010 was categorically rebutted during the contempt proceeding. It was only in those circumstances that the petitioner finding no other way, chose to withdraw the contempt petition with a liberty to file application for interpretation/ clarification of para 17 of the judgment rendered by the learned Division Bench in the case of M/s Laxmi 7 Business & Cement Co. (P) Ltd., Hazaribag . The observation made therein does not permit two interpretation. Therefore the petitioner has not been able to make any ground to seek review of the impugned order. Learned Senior Counsel has pointed out that though in the writ petition JSERC was party but the same has not been impleaded in C.M.P or in the present review.
12. Last submission of learned senior counsel for the Board is rebutted by learned counsel for the petitioner stating that apparently the Board itself had not impleaded JSERC as Respondent in civil appeals which were decided on 28.02.2014 by the Apex Court. He submits that the merits of the matter can be considered only if the review is allowed and C.M.P is restored to its original file.
13. We have considered in detail the submission of learned counsel for the parties and taken note of all relevant material facts, pronouncement of the Courts on the subject matter and the stand of the parties as taken during the proceedings in the Contempt case as well. The basic issue on which petitioner had sought clarification is the observation made at para 17 by the learned Division Bench in its judgment dated 05.07.2011 in the case of M/s Laxmi Business & Cement Co. (P) Ltd., Hazaribag and M/s Laxmi Ispat Udyog, Koderma in L.P.A No. 466 of 2010 and L.P.A. No. 465 of 2010. The observation of the learned Division Bench, quoted herein above, does not leave any room of doubt that the writ petitioner / respondent cannot be held to be entitled to interest for all the amount which they had already paid to the appellants whenever they received the electricity bills. Concluding sentence of Para 17 has to be read in conjunction with the preceding lines. In that context the learned Division Bench was of the considered opinion that the writ petitioner / Respondent would be entitled to the interest over the excess recovery made by the Appellant from 17.09.2010 i.e., the date of the order passed by the learned Single Judge.
14. Understandably, once the determination had been made by the learned Single Judge by the order dated 17.09.2010, the Board was not entitled to recover amount towards impugned demand. Learned Division Bench in that light had observed that interest would be payable to the writ petitioner over the excess recovery made by the Board from 17.09.2010, clearly negating the claim for interest over the amount that had already been paid to the Board whenever they received the electricity bills. The respondent Board herein apparently has taken a uniform stand in case of such consumers. The same stand has been taken by the Board in respect of the present petitioner in the contempt proceedings also. If the observation of the learned Division Bench 8 did not permit of any two interpretation, the decision of the learned Division Bench dated 05.02.2016 passed in C.M.P No. 431 of 2015 where under it declined to entertain any plea for clarification/ interpretation of para 17 of the judgment, does not appear to suffer from any such error which can be subject matter of a review.
15. Considered thus, the impugned order does not merits interference. In such circumstances, we are satisfied that no grounds of review have been made out to recall the impugned order. Accordingly, the present review petition is dismissed.
(Aparesh Kumar Singh, J.) ( Ratnaker Bhengra, J.) A.Mohanty