Allahabad High Court
M/S Liladhar Tularam Ice Factory Thru' ... vs State Of U.P. & Another on 12 January, 2015
Bench: Arun Tandon, Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 10 Case :- WRIT - C No. - 68589 of 2014 Petitioner :- M/S Liladhar Tularam Ice Factory Thru' Its Prop. Respondent :- State Of U.P. & Another Counsel for Petitioner :- Ranjit Saxena Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi Hon'ble Arun Tandon,J.
Hon'ble Harsh Kumar,J.
Heard learned counsel for the petitioner and Sri Baleshwar Chaturvedi for the respondent.
From the records of the present writ petition it is apparent that the petitioner had a contracted load of 31 KV for running of his unit in the name and style of M/s Liladhar Tularam Ice Factory in district Aligarh.
It is not in dispute that the petitioner had given an undertaking in the shape of an affidavit categorically stating that he shall not exceed the demand of electricity for running of his unit beyond 31 KV and in case such demand is exceeded, the department would be entitled to disconnect the supply of electrical energy to the petitioner installation. A copy of the affidavit so filed by the petitioner dated 07.03.2014 is enclosed as Annexure-1 to the present writ petition.
We may record that the necessity of filing of such affidavit had arisen because the supply of the petitioner installation was admittedly disconnected on 24.05.2014 as he was found using electricity much in excess of the contracted load. It at that stage that the petitioner filed the affidavit categorically swearing that he shall not draw more than 31 KV electricity in future and in case of violation of his undertaking is supply may be disconnected.
There were earlier allegation of theft of electricity by the petitioner and criminal proceedings in that regard had also been initiated, which resulted in acquittal.
It is further not in dispute that in the month of July, 2014 the total demand, as reflected from the meters etc at petitioner's installation, was found to be 51.5 KV i.e. early one and two third of the contracted load. Because of such excess demand being created by the petitioner unit, 63 KVA transformer installed for supply of electric energy was damaged. Therefore, on 02nd September, 2014 in terms of the affidavit given by the petitioner his supply of electrical energy was disconnected.
It appears that an application was made for increasing the contracted load by the petitioner which only remained a paper formality, inasmuch as neither any deposit of money for such increase of contracted load has been made nor any prescribed proforma filled for the same has been enclosed along with the writ petition.
We further find that on 09th June, 2014 an order was made by the Executive Engineer to the effect that the petitioner may furnish a bank guarantee for the outstanding dues before his request for increasing contracted load may be considered. The petitioner did not respond to this notice and now when his electricity has been disconnected again for using excess load on 02nd September, 2014 he has approached this Court with the prayer that the demand of bank guarantee is unjustified, inasmuch as his writ petition for refund of the money earlier realized on the charges of theft, being Writ Petition No. 9064 of 2012, was pending. Counsel for the petitioner has referred to the interim order, which has been granted in the said petition for contending that there is a direction to pay the future bills only and therefore according to him the demand of bank guarantee for the outstanding dues is unjustified.
We have examined the interim order which has been granted by the Writ Court in Writ Petition No. 9064 of 2012. We find that the High Court has only issued an interim mandamus to either restore the supply of electrical energy or to show cause, with a further direction that if the electrical supply is restored, the petitioner shall pay all the charges of the current bills.
In our opinion this interim order does not in any way discharge the petitioner of his earlier liability and even otherwise even if it is accepted that the department cannot realize the outstanding dues because of the interim order, it will not mean that the liability has been washed out, inasmuch as interim orders are granted to maintain the status quo as is prevailing on the date. It is not the final adjudication of the right of the parties. The liabilities subsists only its recovery case at best can be said to be suspended qua which also we have serious doubts in the facts of this case.
We are not expressing any final opinion on the issue, inasmuch as the issue is subject matter of Writ Petition No. 9064 of 2012.
The demand of bank guarantee, for the outstanding dues which are pending against the petitioner, before enhancement of the contracted load does not warrant any interference in the facts of the case.
Counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the case of Kanpur Elect. Supply Co. Ltd & Anr vs. L.M.L. Limited & Ors; 2010 Law Suit (SC) 306.
It may be recorded by us at the very outset that the judgement relied upon by the counsel for the petitioner pertains to a company which was declared sick by the BIFR. The judgment is distinguishable in the facts of the case.
Counsel for the petitioner points out that merely because in the judgment referred to above the company was declared sick, the law laid down by the Apex Court cannot be distinguished.
In the opinion of the Court the plea so raised is again wholly misconceived.
The Apex Court in the case of Bhavnagar University v. Pitiola Sugar Mills 2003 (2) SCC 111 followed in the case of Dr. Raghuvir Singh reported in AIR SCC Weekly 5817 has explained that a little difference in the facts of the case will make a lot of difference in the precedential value of the decision.
In the totality of the circumstances we find no good ground to interfere in the facts of this petition.
Writ petition is dismissed.
Order Date :- 12.1.2015 Pkb/