Bombay High Court
Ultra Tech Cement Ltd. Through Gm, Shri. ... vs Maharashtra State Electricity ... on 22 July, 2022
Author: Gauri Godse
Bench: G.S. Patel, Gauri Godse
902-903-904-ASWP-923-2018.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 923 OF 2018
Adani Agri Logistics Ltd & Anr ...Petitioners
Versus
The Maharashtra State Electricity Distribution ...Respondents
Co Ltd & Anr
WITH
WRIT PETITION NO. 4573 OF 2016
Ultra Tech Cement Ltd Through GM, Shri MB ...Petitioner
Parabhu
Versus
Maharashtra State Electricity Distribution Co Ltd ...Respondents
Through Superintending Engineering & Ors
WITH
WRIT PETITION NO. 5367 OF 2016
Bulk Cement Corporation (India) Limited ...Petitioner
ARUN Versus
RAMCHNDRA
SANKPAL Maharashtra State Electricity Distribution Co Ltd ...Respondents
Digitally signed
Through Superintending Engineering & Ors
by ARUN
RAMCHNDRA
SANKPAL
Date: 2022.07.25
17:48:45 +0530
Mr Pradeep Sancheti, Senior Advocate, with Abhishek Munot &
Malcolm Desai, i/b Padmanabh D Pise, for the Petitioner in
WP/4573/2016.
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902-903-904-ASWP-923-2018.DOC
Mr Vikram Nankani, Senior Advocate, with C Keswani, Shailesh
Poria, A Manwani & Tanvi Rana, i/b Economic Laws Practice,
for the Petitioner in WP/923/2018.
Mr Rahul Narichania, Senior Advocate, with Hemangi Abhyankar,
Viveka Truman & Ruddhi Bhalekar, i/b Zoya Syed, for the
Petitioenr in WP/5367/2016.
Mr Rahul Sinha, i/b DSK Legal, for Respondents Nos. 1 & 2 in All
Writ Petitions.
Mr PG Sawant, AGP, for State, in WP/4573/2016 & WP/5367/2016.
CORAM G.S. Patel &
Gauri Godse, JJ.
DATED: 22nd July 2022 PC:-
1. We believe that the present order, although it will not finally dispose of the three Petitions, is necessary in the interests of justice, transparency and fair play.
2. All three Petitions share some commonality and common ground, although the facts in each case and the amounts involved may differ. The contesting Respondent is the Maharashtra State Electricity Distribution Company Limited ("MSEDCL"). It is a distribution licensee within the meaning of the Electricity Act 2003. All three Petitioners obtained electricity supply at their request from MSEDCL on their representation that the Petitioners' units to which the supply was connected fell within the classification or category of industrial consumers. Under the statute and the regulations, the Maharashtra Electricity Regulation Commission ("MERC") decides and fixes periodically the electricity consumption tariff applicable to various classes of consumers.
Page 2 of 722nd July 2022 902-903-904-ASWP-923-2018.DOC There is, therefore, a tariff fixed for industrial consumers, commercial consumers, residential, agricultural and so on. Within each category, there are also broad sub-divisions such as Industrial- (I), Industrial-(II), depending on the requirement.
3. In its periodic tariff orders, MERC also broadly describes the nature of the activity or purpose that is comprised in each broad or governing category. For example ice factories, flour mills, garment manufacturing units, mining, quarrying and stone crushing units are treated as being part of the industrial category and are further sub- classified in HT-1 requiring high tension supply.
4. In the three Petitions, MSEDCL, after an initial supply to the Petitioners at the industrial tariff, changed the classification and began billing the Petitioners at a higher rate applicable to commercial connections. In all Petitions there was also a demand for past payment.
5. We find that not only is there a significant difference in terms of the impact on the Petitioners but that this change in classification or categorisation has not been done in an appropriately transparent and fair fashion. We do not accept, as indeed we believe we cannot, that a distribution licensee has the power to change a classification without going through a minimally fair-minded process. This means giving the affected consumer an opportunity of making a representation, of being heard, of application of mind to the representations and then for reasons -- which may be shortly stated but must nonetheless be reasons -- stating why in the opinion of the Page 3 of 7 22nd July 2022 902-903-904-ASWP-923-2018.DOC MSEDCL such a change in categorisation is warranted. To take an example, if it is to be ordered by the distribution licensee that a consumer is no longer engaged in industrial activity or a manufacturing process, then the distribution licensee must surely on the basis of some material on record conclude that this change happened at a certain date and has resulted in a material change in nature of the activity or the process. If this minimal procedure is not followed, then there would be unfettered and uncanalised power in the hands of the distribution licensee to change a classification at any time. Ex-facie this would be arbitrary and in a given case might also be capricious. It is often said that in judicial review of administrative action, a Court exercising powers under Article 226 of the Constitution of India does not concern itself with the actual decision but with the decision-making process. In all three Petitions, we find the decision-making process to be wanting.
6. Having said this, we are prepared to give MSEDCL an opportunity to adopt a fairer and more transparent process. Mr Sinha has taken instructions. He cannot of course make a statement or a concession that the demands will be withdrawn and we do not expect that from him. He does say, however, and on instructions, that MSEDCL will consider a representation made by the Petitioners showing why they should not continued to be industrial consumers and should be billed at the tariff applicable to commercial consumers.
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7. This is a fair suggestion by Mr Sinha. We only need to fix a lime limit and give both side sufficient opportunity to complete their respective obligations.
8. We do however, believe that a threshold objection that this Court has no jurisdiction because the Petitioners may approach either the MERC or Grievance Redressal Forum is without substance. There is no jurisdictional ouster clause in the statute. We are concerned here with the broader principle, one that is rooted in Article 14 of the Constitution of India. It speaks to the manner in which decisions are taken and the grievance is not merely about this or that amount or a billing dispute.
9. We also note that in all three cases, there is a governing interim order under which the Petitioners are paying the higher tariff but on a without prejudice basis and under protest. This will undoubtedly have to continue until further orders of the Court.
10. There is also a claim made by MSEDCL for a differential amount said to be due for the past. This is being contested. It is self- evident and in the nature of things that if the Petitioners' representations are accepted then the question of past dues probably will not survive.
11. We make it clear that we have not addressed any of the three Petitions on their independent merits. This is for the reasons we set out above.
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12. We understand that each of the Petitioners have already made some submissions or some representations. Indeed we find, and this fortifies our view, that there is no response in at least two of the three cases to those representations.
13. We thus permit the Petitioners to put in a supplementary representation on or before 1st August 2022. It is to be submitted to the Chief Engineer (Commercial) of MSEDCL. That officer will consider the representations. He will afford the Petitioners an opportunity of an oral hearing. That hearing has to be scheduled after at least 48 hours' prior notice which may be sent by email or any other form of electronic communication. In their representations, the Petitioners must mention the preferred mode of communication.
14. Since this is likely to be a combination of technical issues as also certain legal dimensions in interpreting the tariff orders and the Act, we do not disallow legal representation but leave it to the discretion of the Petitioners whether they do wish to be represented by Advocates. However, adjournments are not to be sought on the basis that the Advocates are busy in our Court (or any other Court). Those hearings are not be adjourned. We permit short written submissions as well. The Chief Engineer is to make an order on the representations by 5th September 2022.
15. We make it clear that we do not expect the Chief Engineer to render a judgment or an award. What we do expect to see is some Page 6 of 7 22nd July 2022 902-903-904-ASWP-923-2018.DOC consideration on the representations made and briefly the reasons for his conclusion.
16. Having regard to these aspects, we are not disposing of the Petitions. We list these Petitions for directions on 8th September 2012.
17. If the Chief Engineer rejects the representations made by the Petitioners, no coercive action is to be taken against the Petitioners until 16th September 2022.
18. For good order and consistency, in each of these three Petitions the notice of demand will be treated as a show-cause notice.
(Gauri Godse, J) (G. S. Patel, J)
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