Calcutta High Court (Appellete Side)
Surya Alloy Industries Limited & Anr vs West Bengal Electricity Regulatory ... on 11 February, 2021
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
11
11.02.2021
Ct. No.23
PP/sb/pg.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
(Via Video Conference)
WPA 3882 of 2021
Surya Alloy Industries Limited & Anr.
Vs.
West Bengal Electricity Regulatory Commission & Ors.
Mr. Surojit Nath Mitra, Sr. Advocate
Mr. Tanoy Chakraborty
Mr. Siddharth Shroff
... For the petitioners
Ms. Sharmistha Ghosh
Ms. Neha Chakraborty
... For WBERC
Mr. Jaydip Kar, Sr. Advocate
Mr. Prasun Mukherjee
Mr. Deepak Agarwal
... For DVC
The petitioner no.1 is a consumer under Damodar
Valley Corporation (in short "DVC") for its factory situated
at Barjora Kadasole, Bankura. The petitioners in this writ
petition have challenged the summary statement raised by
DVC, the licensee, dated 1st January, 2021 along with the
amended bills claiming a sum of Rs.8,07,57,922/- and the
disconnection notice dated 28th January, 2021 issued in
terms thereof threatening to disconnect the supply of
petitioner no.1 within 15 days from the date of issuance of
the said notice. The 15 days time period from 28th January,
2021 takes us to 12th February, 2021. The petitioners say
that nothing is payable according to the demand made and
therefor has not paid the amount claimed or any part
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thereof. The petitioners apprehend disconnection by
tomorrow. The disconnection, if effected, will stop the
operation of the factory and will cause immense loss to the
work-in-progress. The employees of the petitioner no.1
including the petitioner no.2 will be deprived of their
livelihood if the disconnection takes place.
The brief facts leading to the petitioners disputing
the summary statement and the bill raised in terms thereof
are as follows:-
(i) The Electricity Act, 2003 (hereinafter referred
to as the "said Act") came into effect on 10th June,
2003. DVC was required to approach the Central
Commission within a time frame as per the said Act
for determining of the tariff which DVC failed to do.
The Central Commission, in such circumstances,
initiated suo motu proceeding and by an order dated
29th March, 2005 directed DVC to submit its
application for approval of its tariff for the tariff
period 1st April, 2004 to 31st March, 2009. DVC
accordingly made an application on 8th June, 2005.
DVC was, however, raising bill as per their own
tariff schedule during this period.
(ii) By an order dated 3rd October, 2006, the first
tariff order determining the tariff for generation and
transmission for the period from 1st April, 2006 to
31st March, 2009 was determined by the Central
Commission.
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(iii) DVC challenged the said order before the
Appellate Tribunal for electricity. The said Appellate
Tribunal by an order dated 10th May, 2010
dismissed the appeal so preferred by DVC.
(iv) The order of the Appellate Tribunal was
carried in appeal before the Hon'ble Supreme. By an
order dated 9th July, 2010, the order of refund of
the excess amount from the customers including
petitioner no.1 as directed by the Appellate Tribunal
was stayed. The appeal was ultimately dismissed on
3rd December, 2018.
(v) The order of the Appellate Tribunal being
upheld, save the direction for refund, DVC was
required to approach the West Bengal Electricity
Regulatory Commission (in short "WBERC") for
fixation of the retail tariff in West Bengal and to the
other State Commissions for the States wherein
DVC has its operation.
(vi) The West Bengal Electricity Regulatory
Commission (Terms and Conditions of Tariff)
Regulations, 2005 (in short "Tariff Regulations
2005") was notified on 21st November, 2005 and
came into effect from that date. The Tariff
Regulations 2005 was, however, repealed by
promulgation of the West Bengal Electricity
Regulatory Commission (Terms and Conditions of
Tariff) Regulations, 2007 (in short "Tariff
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Regulations 2007") notified on 9th February, 2007
which came into effect from that date.
(vii) Despite there being a Commission set up for
the State of West Bengal, DVC did not approach the
said State Commission in time and, as such,
continued to raise bills without there being any
fixed tariff according to the petitioners. It is also the
case of the petitioners that in absence of any fixed
tariff, there was no obligation on the part of the
petitioners to make payment of the bills which were
arbitrary. The petitioners, however, made certain ad
hoc payments but not according to the bill date and
the value of the bills that were raised by DVC from
time to time as according to the petitioners the
same were not on the basis of any tariff fixed by
WBERC.
(viii) Ultimately, by an order dated 19th March,
2020, the WBERC fixed the retail tariff for the year
2009-10, 2010-11 and 2012-13. By another order
dated 19th June, 2020, WBERC fixed the retail tariff
for the year 2006-07 and 2008-09.
(ix) As per records it is an admitted position that
a net principal amount of Rs.9,03,32,353/- was an
excess payment made by the petitioners for the
period 2006-09. DVC has given 6% interest to the
petitioners in terms of the order dated 10th May,
2010 passed by the Appellate Tribunal for
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electricity. The interest at the rate of 6% on the
principal sum of Rs.9,03,32,353/- come to
Rs.4,90,53,787/-.
(x) It is the case of the petitioners that from the
principal sum of Rs.9,03,32,353/-, the electricity
bills dated 10th June, 2010, 3rd February, 2010, 8th
March, 2010, 8th April, 2010 and 6th May, 2010
have deducted which brings the figure of
Rs.9,03,32,353/- to Rs.5,97,03,006/- being the net
principal amount refundable.
(xi) Against an aggregate interest of
Rs.4,90,53,787/-, DVC has adjusted the Delayed
Payment Surcharge (in short "DPS") alleging that an
aggregate DPS of about Rs.6.87 crore is payable by
the petitioner No.1 for the period 2010-2013. This
alleged DPS, according to DVC, is in terms of the
agreement between the petitioners and DVC. After
the adjustment of Rs.6.87 crore from the said sum
of Rs.4,90,053,787/-, a sum of Rs.1,96,84,884/-
has allegedly become realisable by DVC from the
petitioner no.1. After adjusting Rs.1,96,84,884/-
from the net principal sum of Rs.5,97,03,006/- a
sum of Rs.4,00,18,122/- is arrived at. In terms of
the order dated 5th March, 2019, the petitioners
made payment of the bills after deducting
Rs.25,00,000/- from the exact bill value of the bills
raised by DVC. On this account, a deficit of Rs.5.5
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crore has been arrived at by DVC. DVC has also
charged on account of arrears of bills for the period
between 2009 to 2013 an aggregate sum of Rs.5.55
crore. DVC has thereafter added the said sum of
Rs.5.50 crore with Rs.5.55 crore and a sum of
Rs.1.03 crore on account of DPS for the period
January 2019 to November 2020 and have deducted
therefrom a sum of Rs.4,00,18,122/- to arrive at a
net due of Rs.8,07,57,922/-. This is the claim for
DVC in the bill dated 1st of January, 2021. There is
no due date for payment of the said sum.
(xii) The petitioners have by an letter dated 12th
January, 2021 disputed the calculation made by
DVC and have further requested DVC to recalculate
the bill dated 1st January, 2021.
(xiii) The petitioner no.1 was served with a
disconnection notice dated 28th January, 2021
which has been protested against by the petitioner
no.1 vide its letter dated 30th January, 2021.
On behalf of the petitioners, it is submitted that
DVC has wrongfully charged DPS though such DPS is
neither realisable by DVC nor payable by the petitioners.
There has been no delay on the part of the petitioner no.1
in making payment as the bill raised by DVC without the
tariff order being fixed cannot be said to be bills payable by
the petitioners. DVC has in an unauthorised manner
reduced the principal sum by deducting the unpaid bill
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value therefrom after a period of at least seven (7) years
from the bill date. These bills are barred by limitation
under the provisions of Section 56(2) of the said Act. There
is, as such, according to the petitioners, no amount
payable if a proper account is taken in the matter. The
petitioners further say that DVC, if claims that bills for the
year 2010 to 2013 having remained unpaid and are
adjustable in 2021, then such bills are barred by
limitation. On the other hand, if DVC claims to have raised
bills in terms of the orders dated 19th March, 2020 and 19th
June, 2020, then DPS is not realisable as there is no delay
on the part of the petitioner no.1 in making payment. DVC,
therefor, cannot claim the said sum of Rs.8,07,57,922/- on
either count. There is no due date for making payment of
the bill dated 1st January, 2021 and, as such, there can be
no default on the part of the petitioner no.1. The
disconnection notice allegedly issued under Section 56(1) of
the said Act is, therefor, bad and issued arbitrarily in
colourable exercise of power. The disconnection notice is
required to be stayed as an interim measure and set aside.
The petitioners have relied upon a judgment
reported in (2020) 4 SCC 650 (Assistant Engineer (DI),
Ajmer Vidyut Vitran Nigam Limited & Anr. v.
Rahamatullah Khan Alias Rahamjulla) to demonstrate
that in case of claims wherein limitation under the
provisions of Section 56(2) of the said Act are attracted like
the case in hand, no coercive mode like disconnection of
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electric supply can be adopted by DVC as against the
petitioners.
On behalf of DVC it is submitted that the bill has
been raised in terms of the various orders passed in the
proceedings inter se between the parties as also in terms of
the order of the Central and the State Electricity Regulatory
Commission. There is, as such, no error in the bill and the
petitioners are liable to pay the said sum of
Rs.8,07,57,922/-. It is further submitted on behalf of DVC
assuming without admitting that the amount of Rs.1.96
crore payable to DVC and Rs.4.01 crore payable to the
petitioners involve certain claims allegedly barred by
limitation, then also DVC is entitled to realise from the
petitioner no.1 a huge sum on account of less payment for
the period January, 2019 to November, 2020 in terms of the
order dated 5th March, 2019 which the petitioners cannot
deny. It is also submitted on behalf of DVC that the
petitioners have disputed the bill raised by DVC. A billing
dispute is required to be adjudicated by the Regional
Grievance Redressal Officer, (in short, RGRO) set up in
terms of Section 42(5) of the said Act and then by the
electricity Ombudsman under Section 42(6) of the said Act.
The petitioners should be asked to approach the concerned
RGRO for redressal of his disputes. Some of the consumers
in similar circumstances have approached the RGRO. DVC
also says that in terms of the agreement between the
petitioners and respondents there is an arbitration
agreement and the disputes raised by the petitioners are 9 squarely covered by the arbitration clause and as such they could have approached the arbitrator. The writ petition is not maintainable in view of the subsistence of the arbitration agreement and availability of a statutory forum.
On behalf of West Bengal Electricity Regulatory Commission (in short, WBERC), it is submitted that on the issue of disconnection, WBERC has nothing to say as it is inter se dispute between the petitioner and DVC. So far as the dispute regarding the bill raised by DVC, WBERC says that RGRO and then electricity Ombudsman are the statutory authorities before which the grievance has to be ventilated by the petitioners. In this regard, WBERC has relied upon a judgment reported in (2007) 8 SCC 381 (Maharashtra Electricity Regulatory Commission vs. Reliance Energy Ltd. & Ors.). Relying upon paragraphs 22, 31 and 33 it is submitted that RGRO is the only forum which can be approached by the petitioners.
After considering the respective submissions and the materials on record, the issue as to the limitation, the right of DVC to realise DPS and the accounting procedure as raised by the petitioners cannot be gone into without calling for affidavits.
So far as the interim protection as to the threat of disconnection is concerned, the Court is required to balance the scales. It is an admitted position that a sum of Rs.9,03,32,353/- is the net principal amount payable by DVC to the petitioners. It is also an admitted position that a 10 sum of Rs.4,90,53,787/- has accrued as interest on the principal sum as per the order of Appellate Tribunal for Electricity. The aggregate sum of such interest and principal is in excess of Rs.13 crore. The bills payable on 10th January, 2010, 3rd February, 2010, 8th March, 2010, 5th April, 2010 and 8th May, 2010 and the DPS realised are issues required to be adjudicated after filing of affidavits.
With regard to the realization of DPS, I also find substance in the contention of the petitioners at this stage. As to whether DVC can realize DPS is dependant on various factors like the interpretation of the clause for the same in the agreement, the limitation as to the bills, the interpretation of various orders. The issues cannot be gone into without complete disclosure in the affidavits to be filed. At this stage, the adjustment of the interest payable to the petitioner against DPS, the arrear for the period 2009 to 2013 and the DPS for the period January, 2019 to November, 2020 cannot be said to be realiasable from the petitioners without there being detailed enquiry in this regard after filing of affidavits. The fact, therefor, remains that as against an admitted sum in excess of Rs.13 crore, a sum of Rs.5.5 crore is due and realiasable for the deficit during the period from January, 2019 to November, 2020 as the petitioners paid lesser amount in terms of the order dated 5th March, 2019. DVC also did not take any steps to disconnect the electricity between 2009 - 2013 when according to them bills remained unpaid. The balance of convenience and inconvenience is therefor tilted in favour of 11 the petitioners. The petitioners have also made out a prima facie case and are, therefor, entitled to an order of injunction restraining DVC from disconnecting the supply of the petitioners for non-payment of the amount claimed in the bill dated 1st January, 2021, till the final disposal of the writ petition. The petitioner no.1, however, shall continue to pay the regular consumption bills that may be raised by DVC from time to time during the pendency of the writ petition.
With regard to the contention raised by DVC and WBERC that the matter should be sent to the RGRO, I am of the view that the dispute in hand is not a classical billing dispute wherein either the meter is defective or erroneous meter reading involving any outstanding energy charge for the consumption made by the petitioners in regular course as considered by the Commission in case of Reliance Energy (supra). The bill is on account of alleged arrears after adjustment of an admitted sum. The adjustment includes the legality to realise DPS and bills for the period 2009 to 2013 after about seven years. These issues also cannot be effectively decided by the RGRO or the arbitrator. This Court is empowered to go into the legality of realisation of DPS and adjustment on account thereof as also for bills unrealised for over seven years.
Since I have admitted the writ petition for being finally heard after the affidavits, I have not dealt with the judgments cited in details.
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Let affidavit-in-opposition be filed within a period of three weeks from date. Reply thereto, if any, be filed within two weeks thereafter.
Liberty to mention for inclusion in the list under the heading "Hearing" after six weeks.
(Arindam Mukherjee, J.)