Calcutta High Court (Appellete Side)
Shree Vaishanavi Ispat Limited & ... vs West Bengal Electricity ... on 12 February, 2021
05
12.02.2021
Ct. No.23
pg.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
(Via Video Conference)
WPA 4034 of 2021
Shree Vaishanavi Ispat Limited & Anr.
Vs.
West Bengal Electricity Regulatory Commission & Ors.
Mr. Raja Basu Chowdhury
Mr. Tanoy Chakraborty
Mr. Sourav Bera
Mr. Chhandak Dutta
... 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
The petitioner no.1 is a consumer under Damodar
Valley Corporation (in short "DVC") for its factory situated
at Gopalpur, Kanksa, Purba Bardhaman. 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.10,76,73,568/- and the disconnection notice dated 28th
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 28th January, 2021 takes us to 12th
February, 2021.
2
The petitioners say that there was an excess
payment of Rs.1,35,53,833/- during the period 2006-2009
by the petitioner no.1 to DVC. This sum attracted interest
at the rate of 6% per annum. DVC has adjusted the energy
bill dated 10th February, 2010, 10th March, 2010, 9th April,
2010 and 7th May, 2010 from the said principal sum and
adjusting interest allegedly payable to it on a reducing
balance method has arrived at a figure of Rs.2,03,48,880/-
to be an amount allegedly due to DVC. DVC has thereafter
added Delayed Payment Surcharge (in short "DPS") for the
period 2010-13 for Rs.4,24,52,905/- and alleged unpaid
bills till April 2010 for Rs.4,64,59,807/- and have
ultimately arrived at a figure of Rs.10,76,73,568/- after
deducting Rs.1,35,53,833/- therefrom.
The petitioners have challenged the legality of
realisation of DPS as also the adjustments of bills which
are more than seven years old in the year 2021. The
petitioners say that the bills which are more than two years
due from the date when its payment allegedly fell due
attracts the provisions of Section 56(2) of the Electricity
Act, 2003. The petitioners also refer to pages 391 to 410 to
demonstrate the discrepancy in the accounting process of
DVC.
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
3
the petitioner no.2 will be deprived of their livelihood if the
disconnection takes place.
The petitioner no.1, however, by a letter dated 25th
January, 2021 has offered to DVC to pay a sum of
Rs.3,39,39,965/- by 24 instalments.
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
petitioners are liable to pay the said sum of
Rs.10,76,73,568/-. 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
4
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.
Since the petitioners have offered to pay the said
sum of Rs. Rs.3,39,39,965/-, without going into the
accounting dispute at this stage, the matter is adjourned till
26th February, 2021 to enable the petitioner no.1 to show
its bona fide.
The disconnection will not take into effect till 1st of
March, 2021, subject to the petitioner no.1 paying a sum of
Rs.75 lakh within 22nd February, 2021 as against the bill
dated 1st January, 2021. The payment shall be without
prejudice to the rights of the petitioners and will be
appropriated by DVC also without prejudice to its rights.
The question of legality of realisation of DPS and
adjustments of arrears as also the maintainability point
raised by the respondents are left open to be decided when
the matter is taken up next.
Let this matter appear on 26th February, 2021.
(Arindam Mukherjee, J.)
