Delhi High Court
Tata Power Ddl (Erstwhile North Delhi ... vs Suri & Suri Pvt Ltd on 10 January, 2023
Author: Najmi Waziri
Bench: Najmi Waziri, Sudhir Kumar Jain
2023/DHC/001588
$~6 to 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 10.01.2023
+ LPA 724/2011
GOVT OF DELHI ..... Appellant
versus
RANBIR SINGH ..... Respondent
+ LPA 296/2017
BSES RAJDHANI POWER LTD ..... Appellant
versus
VEENA CHOPRA ..... Respondent
+ LPA 298/2017
BSES RAJDHANI POWER LTD ..... Appellant
versus
DEV ARORA ..... Respondent
+ LPA 319/2017
TATA POWER DDL (ERSTWHILE NORTH DELHI
POWER LTD) ..... Appellant
versus
VINOD KUMAR GUPTA & ORS ..... Respondents
+ LPA 320/2017
TATA POWER DDL (ERSTWHILE NORTH DELHI
POWER LTD) ..... Appellant
versus
Signature Not Verified
Digitally Signed By:KAMLESH
KUMAR
LPA 724/2011 & Connected Matters Page 1 of 12
Signing Date:03.03.2023
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2023/DHC/001588
SURI & SURI PVT LTD ..... Respondent
+ LPA 321/2017
TATA POWER DDL (ERSTWHILE NORTH DELHI
POWER LTD) ..... Appellant
versus
GURUDARSHAN LAL CHANANA ..... Respondent
+ LPA 327/2017
BSES RAJDHANI POWER LTD ..... Appellant
versus
PARKASH CABLE COMPANY ..... Respondent
+ LPA 371/2017
BSES RAJDHANI POWER LTD ..... Appellant
versus
STATE (GOVT OF NCT) & ORS ..... Respondents
+ LPA 372/2017
BSES RAJDHANI POWER LTD ..... Appellant
versus
ALANKRIT HANDICRAFTS PVT LTD & ANR
....Respondents
+ LPA 373/2017
BSES RAJDHANI POWER LTD ..... Appellant
Signature Not Verified
Digitally Signed By:KAMLESH
KUMAR
LPA 724/2011 & Connected Matters Page 2 of 12
Signing Date:03.03.2023
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2023/DHC/001588
versus
STATE (GOVT OF NCT) & ANR ..... Respondents
Through: Mr. S.K. Singh, Mr. Pepakayala
Geetanjali, Mr.Harsh B. Nagar,
Advs. along with Mr.Rajesh Jain,
DM(A/C) and Ms.Neha Gupta, JLO,
DTL for Appellant in Item No.6.
Mr.Anuj Aggarwal, ASC, GNCTD
with Ms.Ayushi Bansal, Mr.Sanyam
Suri and Ms.Arshya Singh,
Advocates for R-1 in Item No. 6 &
13.
Mr. B.P. Agarwal and Mr.Ujjwal
Kumar Jha, Advocates for
Respondent in Item Nos. 6, 7, 9, 10
& 13.
Mr.Sudhir Nandrajog, Senior
Advocate with Mr.Manish Kumar
Srivastava and Mr.Sagar Arora,
Advocates for Appellant in Item Nos.
7 & 8.
Mr. Krishnendu Datta, Sr. Advocate
with Mr. Manish Kumar Srivastava
and Mr. Sagar Arora, Advocates for
Appellant in Item Nos. 9 to 11.
Mr. Manish Sharma and Mr. Ninad
Dogra, Advocates for Respondent in
Item No. 10.
Mr.Sunil Fernandes, Standing
Counsel, BSES with Ms.Priyansha
Sharma, Advocates for appellants in
Item Nos.12 to 15.
Signature Not Verified
Digitally Signed By:KAMLESH
KUMAR
LPA 724/2011 & Connected Matters Page 3 of 12
Signing Date:03.03.2023
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2023/DHC/001588
Mr.S.K. Srivastava and Mr.Gurjeet
Singh, Advocates for respondent in
Item No. 12.
Ms. Saumya B., Advocate for Mr.
Hemand Daswani, Advocate for
Defendant/Alankrit.
Mr.Prashant Mehta and Ms.Divita
Vyas, Advocates for R-2 in Item
Nos. 14 & 15.
Mr.K.K. Rai, Senior Advocate with
Mr.D.S. Chauhan, Mr.Anshul Rai,
Mr.Sreoshi Chatterjee, Ms.Ruchi
Singh and Ms.Simarn Gill,
Advocates for Appellant in Item
No.16.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
NAJMI WAZIRI, J (ORAL)
The hearing has been conducted through hybrid mode (physical and virtual hearing).
LPA 724/2011, LPA 296/2017, LPA 298/2017, LPA 319/2017, LPA 321/2017, LPA 327/2017, LPA 371/2017, LPA 372/2017, LPA 373/2017
1. These batch of petitions impugn the order dated 02.12.2010 passed by the learned Single Judge striking down Clauses (1) & (2) of the impugned Notification dated 16th/19th May 2008 which excludes the cases under litigation at any forum and at any level, as being violative of Article 14 of the Constitution of Signature Not Verified Digitally Signed By:KAMLESH KUMAR LPA 724/2011 & Connected Matters Page 4 of 12 Signing Date:03.03.2023 18:40:31 2023/DHC/001588 India. A consequential mandamus was issued to extend the benefit of the impugned Notification to the two petitioners and all others who were similarly situated. The aforesaid Notification was issued by the GNCTD under section 108 of the Electricity Act, 2003 read with Notification dated 20.02.2004 issued by the Ministry of Home Affairs, Government of India. The notification was impugned on the ground that it was discriminatory. The writ petitioners had sought the write-off of the principal dues against sale of electricity during the DESU/DVB period in respect of private consumers and to waiver of the „late payment surcharge‟ pertaining to that period. The Notification reads inter alia as under:
"(1) direct the Discoms to write off the principal dues against sale of power during DESU/DVB period in respect of the private electricity consumers and to waive off their late payment surcharge as well pertaining to that period only, except the cases under litigation at any forum and at any level. (2) direct the Discoms not to raise any bill on the private electricity consumers pertaining to sale of power in DESU/DVB period excluding the cases under litigation at any forum at any level. (3) direct the Discoms to implement the above decisions (1) & (2) from the next immediate billing cycle."
2. The petitioners had impugned the Notification insofar as they were excluded from the scheme being provided under the General Notification, apropos consumption of electricity way Signature Not Verified Digitally Signed By:KAMLESH KUMAR LPA 724/2011 & Connected Matters Page 5 of 12 Signing Date:03.03.2023 18:40:31 2023/DHC/001588 back in 1994-95. The bill was raised in 2004, a decade later. It was a stale claim but relief as contemplated in the aforesaid Notification was not granted to the private consumers on the ground that there was litigation pending apropos the said stale claims. The petitioners had contended that Notification, to the extent that it created two classes of consumers who were in arrears of electricity dues, treated them differently and this treatment was arbitrary and discriminatory, therefore violative of Article 14 of the Constitution of India; that there was no rational basis on which those who had challenged the illegal demand raised by the distribution company should be denied the benefit of a write-off of arrears while those who had not challenged the same had been given the benefit. In other words, alacrity and diligence to pursue one‟s right in law for negation of an illegal demand, has effectively been denied; that albeit such benefit was the objective of the government‟s policy and the Notification, the pursuit of legal remedies cannot be an impediment to the receipt of the benefit. The government policy/Notification had granted the benefit to others who have not challenged the Notification. The rationale for the Government to grant the said relief, has been dismissed in the impugned order, for the reason that the Notification:
"was to get rid of stale claims of power consumption arrears of DVB period which were not easy to be pursued and recovered without spending, exhorbitant amount of money and manpower".Signature Not Verified Digitally Signed By:KAMLESH KUMAR LPA 724/2011 & Connected Matters Page 6 of 12 Signing Date:03.03.2023 18:40:31
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3. The reason for not extending the said benefit to consumers who had challenged the demand in court, was that their cases were pending adjudication therefore they would have to be dealt separately, their challenge categorized them separately and this is a definable and a distinctive criterion and category, therefore there is no breach of Article 14. The impugned order has taken note of the factors which the Cabinet of Ministers of GNCTD have considered in taking the policy decision. The said conditions are as under:
"(i) DPCL/DISCOMs have taken all efforts to recover the dues but the same could not bring fruitful result.
(ii) DISCOMs expressed their view that majority of the cases have no payment records and in some cases amounts are contested by consumers as being inaccurate and faulty. As per the provisions of the Transfer Scheme, the responsibility to recover the private consumer arrears vests with the DISCOMS and that from Govt. consumers with DPCL.
(iii) The Statutory Auditor of DPCL observed that "the recovery of DVB period debtors is doubtful and need to be provided for."
(iv) Most of the arrears are of very old vintage and linked to as old as DESU period of pre-1997 era and thus have a very poor recovery potential. Whatever dues were recoverable has since been recovered through implementation of LPSC waiver schemes several times in the past. Rs. 31.76 crore could only be recovered from the waiver scheme launched in December, 2005.
Signature Not Verified Digitally Signed By:KAMLESH KUMAR LPA 724/2011 & Connected Matters Page 7 of 12 Signing Date:03.03.2023 18:40:312023/DHC/001588
(v) There are many fictitious/bogus connection in respect of which the arrears could not be linked to the actual consumers. This task has become all the more difficult due to poor maintenance of consumer records.
(vi) No provision of "bad debt" were usually made in the past by DESU/DVB thereby inflating the arrears figures in the Books of Accounts.
(vii) Carrying huge arrears figures in the books of DPCL after unbundling do not reflect the true financial health of the Company.
(viii) In 2007-08, it is informed by DPCL that no payment could be recovered from the private consumers. All efforts made by DPCL has not yield any fruitful result for recovery of past dues."
4. The impugned order has further noted that the Cabinet Note did not reflect any intention to exclude those consumers who had challenged the demand of electricity dues, from the purview of the benefit of write-off. The Government was unable to explain the rationale on which the distinction was drawn between a consumer who was in arrears and who makes no payment whatsoever nor makes any challenge to the demand in any court of law, vis-à-vis a consumer who, although does not make any payment or makes only a part- payment but challenges the said demand by filing a case in a court. Ex facie, there is no reason why the former should get the benefit of complete waiver and the latter be denied the benefit. The denial of the waiver of complete write-off to a Signature Not Verified Digitally Signed By:KAMLESH KUMAR LPA 724/2011 & Connected Matters Page 8 of 12 Signing Date:03.03.2023 18:40:31 2023/DHC/001588 consumer who goes to court to challenge such demand is ex facie unfair. The impugned order further reasoned as under:
" This basis of classification of consumers who are in arrears of electricity dues is not only irrational and arbitrary but also has no nexus to the object of reduction of litigation. In the case of these two Petitioners the demand was raised for a period much earlier than the date of the bill, therefore, they answer the description of "stale claims." There is no reason why for certain stale claims, where there is no challenge by the consumers, there is a complete waiver of arrears whereas in those cases where a challenge is raised by the consumer which is pending in a Court, there is no such waiver."
5. The impugned order further refers to the dicta in All India Federation of Tax Practitioners v. Union of India 76 (1998) DLT 602 (DB), which inter alia held as under:
"26. In our opinion, no sub-classification can, therefore, be made in the class of litigating assesses in arrears merely by reference to the fact whether they are prosecuting the litigation or defending themselves. In our opinion, once a liability to pay the tax was incurred and determined on or before 31.3.98, the assessee would be treated to be in arrears inspite of his having succeeded at one stage of litigation if the Revenue has chosen to continue with litigation and there is no reason why the benefit of the scheme should be denied to him. To this extent, the scheme is discriminatory and violative of Article 14 of the Constitution. All the assesses litigating and in arrears belong to one class. Any attempt at carving out further classes by reference to who is the Signature Not Verified Digitally Signed By:KAMLESH KUMAR LPA 724/2011 & Connected Matters Page 9 of 12 Signing Date:03.03.2023 18:40:31 2023/DHC/001588 prosecutor/appellant/applicant in the pending litigation is void as based on no intelligible differentia. It is arbitrary, irrational and evasive. It will have no rational relation to the object sought to be achieved by the Act. The twin test laid down in R.K. Garg's case would fail. On the other hand keeping them in one class would enable the twin objective of legislation being achieved - (i) the reduction of litigation, and (ii) the realisation of revenue."
6. The learned Single Judge reasoned that the object of the impugned Notification was reduction of litigation and an acknowledgment of the fact that the Government was unable to recover arrears of stale claims. It further held as under:
"Neither of the above objects have been achieved by excluding the benefit of the Notification dated 16th/19th May 2008 to the cases where the demand for arrears of the electricity dues is under challenge in courts. Applying the ratio of the decision in All India Federation of Tax Practitioners, it must be held that the exclusion of the consumers who have challenged the demand of arrears of electricity dues in courts from the ambit of the benefit of Notification dated 16th/19th May 2008 is discriminatory and violative of Article 14 of the Constitution of India."
7. As regards BSES and TATA Power Ltd., they in effect, are arrayed as parties, simply because they are to collect legacy dues, if due. They collect the monies on behalf of the Government. However, as noted hereinabove the Government itself had decided, by the aforesaid policy to completely write-
Signature Not Verified Digitally Signed By:KAMLESH KUMAR LPA 724/2011 & Connected Matters Page 10 of 12 Signing Date:03.03.2023 18:40:312023/DHC/001588 off stale claims and the benefit would need to be extended to all persons against whom stale claims were made. The impugned order has correctly reasoned that the discrimination brought about by the impugned Notification is arbitrary and did not further the objectives of the decision of the Cabinet.
8. In view of the aforesaid discussion, we do not find any reason to interfere with the impugned order. Accordingly, the appeals are dismissed.
LPA 320/20179. The learned Senior Advocate for the appellant submits that this case pertains to the misuse of the electricity connection, therefore, the impugned order does not cover that aspect. However, as noted in para no. 3 of the impugned order in W.P.(C)8568/2009 apropos M/s Modelama Exports, New Delhi had impugned bills placed by the Delhi Vidyut Board ('DVB.') including certain amounts under the heading "Misuse/excess charges". The impugned order has dealt with this issue as well.
10.The Notification has rightly been seen in the larger context for the purpose it sought to achieve i.e., write-off of all stale claims, some of which related to a period almost a decade before the bills were raised. That objective cannot be denied to the petitioners who have approached court and have litigated in terms of what they thought was the legal remedy. In any case, Signature Not Verified Digitally Signed By:KAMLESH KUMAR LPA 724/2011 & Connected Matters Page 11 of 12 Signing Date:03.03.2023 18:40:31 2023/DHC/001588 the issue of misuse or excess charges as may be, has not yet been proven. Therefore, those claims also would be covered under the said Notification and would need to be waived off. There is no reason to interfere with the impugned order.
11. The present appeal too stands dismissed.
NAJMI WAZIRI, J SUDHIR KUMAR JAIN, J JANUARY 10, 2023 RW/SK/SD Signature Not Verified Digitally Signed By:KAMLESH KUMAR LPA 724/2011 & Connected Matters Page 12 of 12 Signing Date:03.03.2023 18:40:31