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Calcutta High Court (Appellete Side)

Impex Ferro Tech Limited & Ors vs Damodar Valley Corporation & Ors on 20 December, 2013

Author: Soumen Sen

Bench: Soumen Sen

                                            1



   163
20.12.2013.   IN THE HIGH COURT AT CALCUTTA
   mb          Constitutional Writ Jurisdiction

                             W. P. No. 35245 (W) of 2013

                          Impex Ferro Tech Limited & Ors.
                                        Vs.
                         Damodar Valley Corporation & Ors.


              Mr. S.N. Mukherjee,
              Mr. Sagar Bandyopadhyay,
              Mr. Tapas Saha,
              Ms. Soma Kar Ghosh,
              Mr. Subhomoy Dewanji,
              Mr. D. Deb,
              Mr. Niladri Banerjee
                                    ...for the petitioners

              Mr. Joydeep Kar,
              Mr. Prosun Mukherjee
                                        ...for the D.V.C.
              Mr. Pratik Dhar,
              Mr. Ritwik Pattanayak,
              Mr. Samir Halder
                                        ...for the respondent no. 4

Leave is given to file supplementary affidavit disclosing the impugned bills. A copy of the supplementary affidavit has been served upon the D.V.C. Mr. Pratik Dhar, learned counsel appearing on behalf of the West Bengal Electricity Regulatory Commission submits that no application has been filed by the D.V.C. for determination of retail tariff in terms of the order dated 30th September, 2013 before the State Commission for the period 2009-2014 and pursue the matter for expeditious determination of distribution tariff.

Mr. Jaydeep Kar, learned counsel appearing on behalf of the D.V.C., submits that time has been given by the West Bengal Electricity Regulatory Commission to file such application for determination of tariff till 31st December, 2013. However, he is unable to produce any document to show any such direction has been passed by the State Regulatory Commission. It is submitted by Mr. Kar that save and except the petitioners, all other consumers are paying the electricity consumption bills on the basis of the final tariff and some of them are paying in instalments. Mr. Kar has referred to paragraph nos. 20 and 21 of the order passed by the Central Regulatory Commission and submitted that there has been a determination of final tariff and accordingly, D.V.C. shall not be restrained from realizing the final tariff.

In my view, the determination of the retail tariff is essential before raising a claim on the consumers. The consumers are paying the current electricity charges. The supplementary affidavit filed in Court today on behalf of the petitioners shows that the total claim of the D.V.C. on account of differential tariff, as reflected in the four demand notices in respect of the four petitioners, is Rs.3,73,72,458/-.

The learned counsel appearing on behalf of the D.V.C. also does not dispute the same. The D.V.C., however, submits that a large amount is due and payable by the petitioners to the D.V.C. However, that issue is not required to be gone into in this writ petition. Since the writ petitioners have challenged the four demand notices, this order is restricted to such demand notices only. Without prejudice to the rights and contentions of the parties, the petitioners shall furnish a bank guarantee in favour of the licensing company for a sum of Rs.3.75 crores being the differential tariff claimed by the D.V.C. The said bills are under challenge and forming the subject matter of challenge in this writ petition. Mr. S. N. Mukherjee, learned advocate appearing on behalf of the petitioners submitted that save and except 3 the said bills, being Annexure P-13 (collectively) to the supplementary affidavit, the petitioners are not questioning any other bills and current dues are being paid regularly.

The D.V.C. must file the application in terms of the order dated 30th September, 2012 as also in terms of the tariff regulation dated 25th April, 2011. In the event, the said application is filed, the West Bengal Electricity Regulatory Commission shall dispose of the matter preferably within a period of 120 days but not later than six months from the date of filing of the said application after giving a reasonable opportunity of hearing to the respective parties. The furnishing of bank guarantee shall abide by the result of the application to be filed by the D.V.C.. In the event, the D.V.C. does not file the application in terms of the order dated 30th September, 2013 within 31st December, 2013, the petitioners would be at liberty to apply before this Court for discharge of the bank guarantee. The said bank guarantee shall be furnished within a period of one week from date.

There shall be an unconditional stay of the impugned demands raised by the D.V.C. for a period of one week from date. In the event, the bank guarantee is furnished, the stay shall continue until further orders.

It is needless to mention that furnishing of bank guarantee shall ultimately abide by the result of the decision of the West Bengal Electricity Regulatory Commission to be passed on the basis of the application to be filed by the D.V.C. on or before 31st December, 2013.

In view of the aforesaid, it is not necessary and does not require to go in the merits of the claim. The State Electricity Regulatory Commission shall decide the matter uninfluenced by the order passed by this Court.

It is made clear that I have not gone into the merits of the petition and the State Electricity Regulatory Commission shall decide the matter uninfluenced by this order.

Since no affidavit is called for, the allegations made in the writ petition are not deemed to have been admitted by the respondents.

With the above direction, the writ petition stands disposed of without, however, any order as to costs.

Let photostat plain copy of this order, duly countersigned by the Assistant Registrar (Court) be given to the learned advocate for the parties upon usual undertakings.

(Soumen Sen, J.)