Purulia Metal Casting Pvt. Ltd. & ... vs Damodar Valley Corporation & Ors
2021 Latest Caselaw 1413 Cal

     6
12.02.2021
 Ct. No.23
     sb.
                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE
                           (Via Video Conference)

                                 WPA 4163 of 2021

                      Purulia Metal Casting Pvt. Ltd. & Anr.
                                       Vs.
                       Damodar Valley Corporation & Ors.


                    Mr.   Debabrata Saha Roy,
                    Mr.   Indranath Mitra,
                    Mr.   Pingal Bhattacharya,
                    Mr.   Subhankar Das,
                    Mr.   Neil Basu
                                  ... 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 Bongabari, Purulia. 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.1,98,56,638/- and the

             disconnection notice dated 30th January, 2021 issued by

             DVC 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 30th

             January, 2021 takes us to 15th 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
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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 petitioners 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.4,69,48,597/- 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 electricity. The interest at the rate of 6% on

 the   principal    sum    of   Rs.4,69,48,597/-         come   to

 Rs.2,29,38,727/-.

         It is the case of the petitioners that from the

 principal sum of Rs.4,69,48,597/-, the electricity bills

 dated 6th January, 2010, 5th February, 2010, 5th March,

 2010, 6th April, 2010 and 10th May, 2010 have deducted

 which     brings   the   figure      of   Rs.4,69,48,597/-     to

 Rs.2,59,55,634/-     being     the    net   principal    amount

 refundable.
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         Against an aggregate interest of Rs.2,29,38,727/-,

 DVC has adjusted the Delayed Payment Surcharge (in

 short "DPS") and arrived at sum of Rs.4,58,12,272/- 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.

 After    the     adjustment        of     Rs.2,59,55,634/-   from

 Rs.4,58,12,272/- a sum of Rs.1,98,56,638/- has allegedly

 become realisable by DVC from the petitioner no.1.

         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 interest accrued on the principal sum by

deducting DPS therefrom. There is, as such, according to

the petitioners, no amount payable if a proper account is

taken in the matter.


         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.1,98,56,638/-. It is also submitted on behalf of DVC that

the petitioners have disputed the bill raised by DVC. A
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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 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.4,69,48,597/- is the net principal amount payable by

DVC to the petitioners. It is also an admitted position that a

sum of Rs.2,29,38,727/- has accrued as interest on the

principal sum. The aggregate sum of such interest and

principal is Rs.6,98,87,324/-. 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 sum 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 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.)