Calcutta High Court (Appellete Side)
East India Holdings Private ... vs Damodar Valley Corporation & Ors on 12 February, 2021
9
12.02.2021
Ct. No.23
sb.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
(Via Video Conference)
WPA 4405 of 2021
East India Holdings Private Limited & Anr.
Vs.
Damodar Valley Corporation & Ors.
Mr. S. N. Mookherjee, Sr. Advocate,
Mr. Deepan Sarkar,
Ms. Sanchari Chakraborty
... For the petitioners
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 Hetedoba, Durgapur. 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 total sum of Rs.8,97,79,917/-
including Rs.8,71,68,263/- only on account of DPS 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 apart from DPS nothing is payable according to the
demand made and therefor has not paid the amount
claimed or any part thereof. The petitioners apprehend
2
disconnection. 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.
As per records it is an admitted position that a net
principal amount of Rs.6,75,23,846/- was an excess
payment made by the petitioners for the period 2006-09.
As per records, it is also an admitted position that
petitioner no.1 has made an excess payment of
Rs.21,86,925/- for the period 2009 to 2013.
It is the case of the petitioners that from the
principal sums of Rs.6,75,23,846/- and Rs.21,86,925/-
the unpaid dues of the petitioners till April 2010
amounting to Rs.7,23,22,425/- have been deducted
which brings the figure of Rs.26,11,654/- being the net
principal amount payable by the petitioner no.1.
DVC, in addition to the principal payable amount of
Rs.26,11,654/- has imposed an additional DPS against
payment for the period 2010-2013 dues after adjustment
with carrying cost. This amount of DPS only has been
assessed as Rs.8,71,68,263/-. Therefor, a total sum of
Rs.8,97,79,917/- has been claimed in the bill dated 1st
January, 2021. The bill carried a due date of 16.01.2021
in respect of Rs.26,11,654/- but no due for the sum of
DPS being Rs.8,71,68,263/-. The petitioners have
already paid Rs.26,11,654/- on 14.01.2021 within the
3
due date. The remaining DPS amount has been
challenged by the petitioners. The disconnection notice
dated 28th January, 2021 is only in respect of the DPS
amount of Rs.8.71,68,263/-
The petitioners have by a letter dated 6th February,
2021 disputed the calculation made by. 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 6th February, 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 being fixed by WBERC cannot be said to be bills
payable by the petitioners on the dates when such bills
were raised. DVC has in an unauthorised manner reduced
the principal sum by deducting the unpaid bill value
therefrom after a period of at least seven (7) years from the
bill date after WBERC has fixed the tariff respectively in
March and June 2020 to reduce the principal excess
amount paid by the petitioner no.1 and thereby reduce the
interest payable to the petitioner no.1 @ 6 % p.a. 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
4
2021, then such bills are barred by limitation which
attracts the provisions of section 56(2) of the said Act. 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.8,71,68,263/- 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
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
5
petitioners are liable to pay the said sum of
Rs.8,71,68,263/-. 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
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.
DVC has relied upon (2007) 8 SCC 381 (Maharashtra
Electricity Regulatory Commission vs. Reliance Energy
Ltd. & Ors.)
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. If DPS is not realisable then as against an excess
payment of Rs.67,52,384/- and accrued interest of
Rs.48,81,068/- an aggregate sum of Rs.7,23,22,425/-is
payable on account of arrears of bill to DVC. The petitioners
therefor have a positive balance. Even the sum of
Rs.26,11,654/- is the net principal amount payable by the
petitioners to DVC as per the records of DVC for the period
2009-13. The petitioner no.1 has already paid the said sum
of Rs.26,11,654/- under protest within the due date
mentioned in the bill dated 1st January, 2021. The amount
of DPS to be realised is an issue 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. These 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 no. 1 against DPS, for the period 2010 to
2013 should not be allowed. DVC also did not take any
steps to disconnect the electricity between December 2009
to April 2010 when according to them bills remained
unpaid. The balance of convenience and inconvenience is
therefor tilted in favour of 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 only the DPS 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 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 for the period 2010 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.
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.)
