Calcutta High Court (Appellete Side)
Alishan Steels Private Limited & ... vs West Bengal Electricity ... on 12 February, 2021
8
12.02.2021
Ct. No.23
sb.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
(Via Video Conference)
WPA 4174 of 2021
Alishan Steels Private Limited & Anr.
Vs.
West Bengal Electricity Regulatory Commission & Ors.
Mr. Surojit Nath Mitra, Sr. Advocate
Mr. Tanoy Chakraborty
Mr. Siddharth Shroff
... For the petitioners
Mr. Pratik Dhar, Sr. Advocate,
Ms. Neha Chakraborty
... For WBERC
Mr. Jaydip Kar, Sr. Advocate
Mr. Prasun Mukherjee
Mr. Deepak Agarwal
... For DVC.
Affidavit of service filed in Court today is taken on
record.
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 sum of Rs.2,18,43,153/- and the
disconnection notice dated 28th January, 2021 issued by
DVC for a claim of Rs.1,95,94,996/- thereby 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
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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 thereof. The petitioners
apprehend 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.
The petitioner say that after several rounds of
litigation ultimately by an order dated 19th March, 2020,
the West Bengal Electricity Regulatory Commission (in
short, 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.
As per records it is an admitted position that a net
principal amount of Rs.3,96,56,288/- was an excess
payment made by the petitioners for the period 2006-09.
DVC is required to give 6% interest to the petitioners in
terms of the order dated 10th May, 2010 passed by the
Appellate Tribunal for electricity.
It is the case of the petitioners that from the
principal sum of Rs.3,96,56,288/-, the electricity bills
dated 5th August, 2009, 17th September, 2009, 6th
October, 2009, 10th November, 2009, 8th December, 2009,
7th January, 2010, 9th February, 2010, 5th March, 2010,
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31st March, 2010, 10th April, 2010 and 8th May, 2010
aggregating to Rs.2,78,17,031/- have deducted which
brings the figure of Rs.3,96,56,288/- to Rs.1,18,39,257/-
being the net principal amount refundable. 6% interest
has been calculated on reducing balance of the principal
sum to arrive at a net interest of Rs.1,22,46,991/-
Against an aggregate interest of
Rs.1,22,46,991/-, DVC has adjusted the Delayed
Payment Surcharge (in short "DPS") and arrived at a sum
of Rs.1,98,78,012/-. DVC thereafter adjusted the
principal sum of Rs.1,18,39,257/- with Rs.1,98,78,012/-
and added Rs.1,38,04,398/- to be allegedly due on 10th
August, 2020 as arrears of 2009-2013 to arrive at
Rs.2,18,43,153/- said to be payable by the petitioner No.1
to DVC for the period 2010-2013.
This alleged DPS, according to DVC, is in
terms of the agreement between the petitioners and DVC.
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 which
contained arbitrary figures as the same were raised
without the tariff being fixed by the WBERC. The bill
value cannot be said to be payable by the petitioner no.1.
DVC has in an unauthorised manner reduced the interest
accrued on the principal sum and thereafter adjusted the
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DPS against such reduced interest. There is, as such,
according to the petitioners, no amount payable if a
proper account is taken in the matter. When the principal
sum is admitted, DVC cannot claim DPS when bills
became payable in 2020 after the order of WBERC.
Looking from a different angle assuming without
admitting that bills of 2009-2013 became payable on their
respective due dates then the same are barred by
limitation being hit by provisions of section 56(2) of the
Electricity Act, 2003. Disconnection in that event cannot
be made in view of the ratio laid down in 2020 (4) SCC
650 (Assistant Engineer (DI), Ajmer Vidyut Vitran
Nigam Limited & Anr. V. Rahamatullah Khan Alias
Rahamjulla).
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.2,18,43,153/-. 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
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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.
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 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.3,96,56,288/- is the net principal amount payable by
DVC to the petitioners. It is also an admitted position that a
sum of Rs.1,22,46,991/- has accrued as interest even on
the reduced principal sum as per the order of Appellate
Tribunal for Electricity. The aggregate sum of such interest
and principal is in excess of Rs.5,31,02,393/-. The DPS
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 against DPS, and then against the
principal cannot be said to be realisable from the petitioners
without there being detailed enquiry in this regard after
filing of affidavits. 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
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.
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.)
