Abdul Wahid Educational And ... vs Chief Engineer Paschimanchal And ...
2022 Latest Caselaw 5392 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - C No. - 16953 of 2022
 

 
Petitioner :- Abdul Wahid Educational And Charitable Trust ( Reg.)
 
Respondent :- Chief Engineer Paschimanchal And 3 Others
 
Counsel for Petitioner :- Indra Bhan Yadav,Namit Srivastava
 
Counsel for Respondent :- C.S.C.,Narendra Kumar Tiwari
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikram D. Chauhan,J.

Heard Sri Dr. S.P. Singh learned counsel holding brief of Indra Bhan Yadav learned counsel for the petitioner and Sri Amit Saxena learned senior counsel assisted by Sri Narendra Kumar Tiwari for the respondent Nigam.

Challenge in the present petition is to the order dated 19.5.2022 passed by the Executive Engineer namely respondent no.2 to determine the outstanding dues towards the electricity consumption made by the petitioner.

Learned counsel for the petitioner herein seeks to challenge the action of the respondent Nigam in disconnection of electricity since February, 2022 on the premise that the petitioner had defaulted in payment of electricity dues.

Submission of the learned counsel for the petitioner is that for setting up the Medical College the petitioner had applied for 560 KVA load and a tariff HV-2 was sanctioned on 07.10.2015.

Now, the respondent Nigam had changed tariff plan from HV-2 to HV-1 and to the utter surprise of the petitioner, the order dated 23.7.2021 was passed by the Executive Engineer raising demand of Rs.1,33,06,055/-.

It is contended by the learned counsel for the petitioner that tariff plan has been changed after a period of seven years from the date of supply/release of electricity on 07.10.2015, though there had been no default on the part of the petitioner.

It is stated in the writ petition that the notice dated 23.07.2021 had been served upon the petitioner on 10.08.2021 to which he had submitted a reply on 13.08.2021. A notice dated 21.09.2021 had again been issued for recovery of said money as arrears of land revenue by taking recourse to the provision of Section 3 of the U.P Government Electricity Undertaking (Dues Recovery) Act 1958. Again a reply was submitted on 30.09.2021 by the petitioner. Another letter was served on the petitioner in the month of April, 2021 insisting demand of the electricity amount. The petitioner then preferred a writ petition challenging the recovery notice dated 28.10.2021 insisting recovery of the aforesaid amount. By the order dated 08.04.2022 this Court had quashed the notice dated 23.07.2021 and remitted the matter back to the Executive Engineer to take a fresh decision in accordance with law after giving opportunity to the petiitoner to file his objection. The order dated 19.05.2022 has, thereafter, being passed.

Placing reliance on the judgement of the Bombay High Court in Maharashtra State Electricity Distribution Company ltd vs The Electricity Ombudsman and other in Writ petition no.10764 of 2011 and the Supreme Court in Assistant Engineer (D1) Ajmer Vidyut Vitran Nigam Ltd and another vs Rahamatullah Khan alias Rahamjulla in Civil Appeal no.1672 of 2020, it is submitted by the learned counsel for the petitioner that the recovery of the electricity dues is stale and no recovery can be made beyond a period of two years from the date it became due. It is then submitted that at no point of time, the petitioner had committed any default, thus, there was no occasion for the respondent to disconnect the electricity in the month of February, 2022 on the premise that certain dues had not been paid by the petitioner.

Sri Amit Saxena learned counsel, in rebuttal, has placed the contract signed by the petitioner for the connection-in-question which is dated 24.09.2015. A perusal of the terms and conditions of the contract in question shows that the sanction was for 560 KVA in tariff HV-1 and it was not in HV-2 as agitated by the counsel for the petitioner herein. The copy of the contract has not been brought on record of the present petition and when this contract was placed before us, learned counsel for the petitioner did not dispute the same. It is, thus, evident that the petitioner had entered into an agreement with the department for supply of electricity with the load 560 KVA in tariff HV-1 which was sanctioned on 07.10.2015 after he had signed the contract on 24.09.2015.

Looking to the terms and conditions of the contract, it is evident that the petitioner was required to abide by the terms of the contract and cannot raise any grievance with regard to the stand of the department for raising the bill of the electricity charges in accordance with the tariff HV-1. The contention in the writ petition that the respondent department has changed the tariff plan after a period of seven years, to the utter surprise of the petitioner, is, thus, a wrong statement. It is clear that the petitioner has tried to misguide the Court by making a wrong statement on oath.

As regards the judgment of the Apex Court placed before us, it is evident that it was noted therein that Section 56(2) of the Electricity Act 2003 does not preclude the licencee company from raising any additional or supplementary demand after expiry of the limitation period prescribed in Section 56(2) in case of mistake or bona fide error. However, it does not empower the licencee company to resort to the coercive measure of disconnection of electricity supply, for recovery of additional demand. It was also noted by the Apex Court that as per the Section 17(1)(c) of the Limitation Act, 1963, in case of a mistake, the limitation period begins to run from the date when the mistake discovered for the first time.

Learned counsel for the respondent submits that the mistake was discovered in the year 2021 when the notice was issued to the petitioner for the first time in July, 2021. For one or other reason, the petitioner avoided the payment of additional demand and, therefore, the department was constrained to disconnect the electricity.

On a query made by the Court, learned counsel for the petitioner is not aware as the petitioner is making payment of the current bills in tariff plan HV-1 as and when the bill is raised by the department.

Having noticed the fact that the petitioner had entered into a contract, we are of the view that the contract being a bilateral agreement the petitioner was obliged to make payment of electricity charges in accordance with the tariff plan HV-1 and cannot raise any dispute with regard to the demand made by the department.

The submission of the learned counsel for the petitioner that the demand has become stale or the department is prohibited from making any demand under the Act after a period of two years is, thus, liable to be rejected. The crux of the matter is that the petitioner is under obligation to make deposits towards the additional demand raised by the respondent from the date of sanction of load till the date the bills were msitakenly raised in tariff plan HV-2.

At this stage, learned counsel for the petitioner states that as it is a huge amount and liberty be granted to the petitioner to make the deposits in easy instalments. It is further stated by the learned counsel for the petitioner that the petitioner is ready and willing to deposit the entire additional demand in easy instalments.

On the submission of the learned counsel for the petitioner about the willingness of the petitioner to pay the additional demand made by the department, it is provided that the petitioner shall deposit the sum of Rs.25 lacs within a period of 15 days from today and move an application before the Executive Engineer concerned in accordance with the provisions of the Clause 6.14 of the Electricity Supply Code 2005 to consider his request for fixing instalments of the total amount billed by the department. As to the current bills, the petitioner is under obligation to make payment in accordance with the tariff plan HV-1.

In any case, the respondent department should not have disconnected the electricity for the additional demand which was raised in the year 2021, in view of the Section 56(2) of the Electricity Supply Code 2003. We, therefore, direct the department to connect the electricity forthwith, i.e by tomorrow evening.

It goes without saying that in case of any default on the part of the petitioner to the above conditions, it would be open for the department to proceed in accordance with law.

The writ petition is, accordingly, disposed of.

Order Date :- 27.6.2022

Harshita