Madhya Pradesh High Court
Anjani Agro Industries Through Partner ... vs Madhya Pradesh Paschim Kshetra Vidyut ... on 11 January, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 11th OF JANUARY, 2024
WRIT PETITION No. 7670 of 2023
BETWEEN:-
ANJANI AGRO INDUSTRIES THROUGH PARTNER ISHWAR PATIDAR S/O
SHRI VITTHAL PATIDAR, AGED ABOUT 41 YEARS, SURVEY NO. 177/3,
177/2 VILLAGE BORLAY TEHSIL ANJAD DISTT. BARWANI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI DHEERAJ SINGH PANWAR, ADVOCATE)
AND
MADHYA PRADESH PASCHIM KSHETRA VIDYUT VITRAN CO. LTD.
1. MANAGING DIRECTOR G.P.H. COMPOUND, POLOGROUND, INDORE
(MADHYA PRADESH)
M.P. PACHIM KSHETRA VIDHYUT VITARAN CO. LTD. THROUGH
2. SUPERINTENDING ENGINEER (HT BILLING CELL), G.P.H.
COMPOUND, POLOGROUND, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ABHISHEK TUGNAWAT, ADVOCATE)
WRIT PETITION No. 7522 of 2023
BETWEEN:-
M/S REVA FLORA CULTURE THROUGH PARTNER ISHWAR PATIDAR S/O
SHRI VITHTHAL PATIDAR, AGED ABOUT 41 YEARS, SURVEY NO. 241/4
VILLAGE BORLAY TEHSIL ANJAD DISTT. BARWANI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI DHEERAJ SINGH PANWAR, ADVOCATE)
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 1/16/2024
6:06:49 PM
-2-
AND
MADHYA PRADESH PASCHIM KSHETRA VIDYUT VITRAN CO. LTD.
1. MANAGING DIRECTOR G.P.H. COMPOUND, POLOGROUND, INDORE
(MADHYA PRADESH)
M.P. PASCHIM KSHETRA VIDHYUT VITARAN CO. LTD. THROUGH
2. SUPERINTENDING ENGINEER (HT BILLING CELL), G.P.H.
COMPOUND, POLOGROUND, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ABHISHEK TUGNAWAT, ADVOCATE)
These petitions coming on for admission this day, the court passed
the following:
ORDER
Regard being had to the similitude in the controversy involved in the present cases, with the joint request of the parties, these petitions are finally heard and being decided by this common order. Facts of Writ Petition No.7670 of 2023 is narrated hereunder.
The petitioner has filed the present petition under Article 226 of the Constitution of India being aggrieved by the order dated 05.12.2022, whereby the HT Billing Cell, MPPKVVCL requested to make payment of difference of amount of Rs.1,15,65,755/- within fifteen days.
02. Facts of the case in short are as under:-
2.1. The petitioner is a partnership Firm engaged in the irrigation agriculture activities of tissue culture at Village - Borlay, Tehsil - Anjad, District - Barwani. The petitioner applied for permanent HT connection of 300 KVA which was sanctioned by the respondent and an agreement dated 12.05.2017 was issued. The petitioner deposited the amount of Rs.6,01,100/- towards Security Deposit as per the Rules. As per the agreement, the respondents started charging the electricity unit as per the Tariff Clause HV - 5.2 for tissue culture - agriculture purpose. The petitioner vide letter dated 23.01.2022 applied for permanent Signature Not Verified Signed by: RAVI PRAKASH Signing time: 1/16/2024 6:06:49 PM -3- disconnection of power supply of HT connection of 300 KVA which was accepted with a condition that the petitioner shall be required to make a liability that may deem at later date of account of audit recovery Court's case, if any, under HT Agreement dated 12.05.2017. The respondents vide letter dated 24.01.2022 has terminated the said agreement.
2.2. According to the petitioner, all of a sudden, respondent No.2 served a demand notice dated 05.12.2022 and arrears of Rs.61,74,355/-
for the period from May, 2017 to December, 2021 as audit recovery. According to the respondents, the petitioner should have been built energy charges as per rate of Tariff Schedule 3.2 instead of Tariff Schedule 5.2. Hence, the present writ petition is before this Court.
03. Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of Narmada Resource Through Haripal Singh v/s M.P. Pashchim Kshetra Vidyut Vitran Company Limited & Another (Writ Petition No.9654 of 2021 and bunch of writ petitions), against which Writ Appeal No.1418 of 2022 was preferred and disposed of by the Division Bench with liberty to the appellants to take action in accordance with law in future.
04. The respondents filed a reply by submitting that the petition is not maintainable as the petitioner is having alternative and efficacious remedy to approach the Madhya Pradesh Electricity Regulatory Commission (MPERC). In support of above contention, the respondents have placed reliance upon a judgment delivered in the case of M/s Kesar Ispat Limited v/s Madhya Pradesh Pashchim Kshetra Vidyut Vitran Company Limited (Writ Petition No.9855 of 2022). The respondents have further stated that the petitioner obtained HT connection to run the unit of tissue culture which is not clearly Signature Not Verified Signed by: RAVI PRAKASH Signing time: 1/16/2024 6:06:49 PM -4- mentioned in the Tariff Schedule, therefore, clarification from MPERC is required. It is further submitted that the petitioner is wrongly treating itself engaged in the irrigation related agriculture work, but actually engaged in the research on growing of new plants genetic alteration on plant like banana and bamboo cultivation and selling the product to the farmers in huge quantity which is a commercial business, therefore, ought to have built under HV - 3.2 category instead of HV - 5.2.
05. Shri Panwar, learned counsel for the petitioner has drawn the attention of this Court towards Tariff Schedule HV - 5 of Retail Supply Tariff Order FY 2018 - 19, which applies for supply of power to other than agriculture pump connections i.e. the connection for hatcheries, fisheries pond, poultry farms, cattle breeding farms, grasslands, vegetables / fruits / floriculture / mushroom growing unit etc. Therefore, the petitioner falls under these category, hence, rightly built under HV -
5. HV - 3 shall apply to industrial production and has wrongly been applied.
06. Shri Tugnawat, learned counsel for the respondents has rightly submitted that tissue culture laboratory is not mentioned in Tariff Schedule HV - 5 of Retail Supply Tariff Order which is reproduced below:-
"The tariff category HV - 5.2 shall supply of power to other than agriculture pump connections i.e. the connection for hatcheries, fisheries pond, poultry farms, cattle breeding farms, grasslands, vegetables / fruits / floriculture / mushroom growing unit etc. and dairy (for those dairy units where only extraction of milk and its processing such as chilling, pasteurization etc. is done). However, in units where milk is processed to produce other end products of milk, billing shall be done under HV - 3.1 (Industrial) category."
07. Therefore, it is the matter of adjudication whether the activities of the petitioner in the name of M/s Reva Flora Culture is an industrial Signature Not Verified Signed by: RAVI PRAKASH Signing time: 1/16/2024 6:06:49 PM -5- or commercial activities or falling under irrigation, public water works and other than agricultural and for this MPERC is the competent forum under Clause 1.24 and 1.25 of the Tariff Order, which are reproduced below:-
"1.24. In case any dispute arises regarding interpretation of this tariff, the decision of the Commission shall be final binding. 1.25. No changes in the tariff or the tariff structure including minimum charges for any category of consumer are permitted except with prior written permission of the Commission. Any order without such written permission of the commission will be treated as null and void and shall be liable for action under relevant provisions of the Electricity Act, 2003."
[Emphasis Supplied]
08. Learned counsel for the petitioner submits that before approaching the MPERC, the petitioner is required to deposit the heavy amount as fees. The petitioner has applied for HT connection and the same was accepted by the respondents and the petitioner consumed the electricity by way of agreement signed by both the parties, therefore, it was not unilateral action, for which petitioner is to be blamed alone. Even otherwise before issuing demand notice, no opportunity of hearing was given to the petitioner, therefore, the petitioner be exempted from payment of heavy fees.
09. It is correct that the petitioner applied for HT connection and the same was accepted by the respondent, thereafter, an agreement was executed. The petitioner consumed the electricity and paid the charges as per the billing done by the respondent and after termination of agreement, supplementary bill was issued on the basis of audit objection. This Court in the case of Narmada Resource (supra) has quashed such type of demand, but in W.A. No.1418 of 2022, the Division Bench has granted liberty to the appellant therein to take action in accordance with law prospectively.
Signature Not Verified Signed by: RAVI PRAKASH Signing time: 1/16/2024 6:06:49 PM -6-10. In the present case, since the agreement has been terminated, therefore, there would no prospective effect for the petitioner but this issue is liable to be decided by the MPERC after examining the material available on record. Two course are opened, either to remand the matter back to the Superintending Engineer to decide it afresh after giving opportunity of hearing the petitioner or to direct MPERC to adjudicate about the applicability of the Tariff Order looking to the nature of working of the petitioner.
11. This issue is no more res integra as in the matter of Narmada Resource (supra), the Writ Court as well as Division Bench already held that no recovery of arrears of billing can be made based on the audit objection for the part period. Since the petitioner has got supply disconnected, hence, there shall be no billing in future. The petitioner was billed as per agreement with respondent / Company, hence, no recovery can be made by changing the category under the Tariff Order.
12. With the aforesaid, Writ Petition stands allowed. The impugned demand is hereby quashed. The order passed by this Court in the present case shall govern the connected petition also, therefore, W.P. No.7522 of 2023 also stands allowed.
Let a copy of this order be kept in the connected petition also.
(VIVEK RUSIA) JUDGE Ravi Signature Not Verified Signed by: RAVI PRAKASH Signing time: 1/16/2024 6:06:49 PM