Calcutta High Court (Appellete Side)
Regal Ingot Private Limited And ... vs Damodar Valley Corporation on 27 April, 2023
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No.5548 of 2022
Regal Ingot Private Limited and another
Vs.
Damodar Valley Corporation
and others
For the petitioners : Mr. Sagar Bandyopadhyay,
Ms. Soma Kar Ghosh,
Mr. Arabinda Pathak
For the DVC : Mr. Kishore Datta,
Mr. Prasun Mukherjee,
Mr. Deepak Agarwal
Hearing concluded on : 31.03.2023
Judgment on : 27.04.2023
Sabyasachi Bhattacharyya, J:-
1. The writ petition has been filed primarily seeking restoration of
electricity connection of the petitioners. The said connection was
severed on August 1, 2011 for non-payment of electricity charges. It
is relevant to mention that the writ petitioners are consumers of the
Damodar Valley Corporation (DVC)-respondent no.1 in the State of
Jharkhand. By operation of the Jharkhand State Electricity
Regulatory Commission (JERC) Regulations, the power purchase
agreement between the parties automatically expired 180 days after
such disconnection.
2. The DVC filed a money suit bearing Money Suit No.29 of 2014,
claiming Rs.1,01,46,469/- as dues for May, 2010 to July, 2011.
3. Prior to the filing of the suit, the DVC had filed a winding up
proceeding against the petitioner under the Companies Act, 1956
claiming the same outstanding dues. On February 7, 2014, this Court
directed the petitioner to pay the amount in ten (10) installments,
against which the writ petitioners preferred an appeal before the
Division Bench. The Division Bench, vide Order dated July 2, 2014,
allowed the appeal, granting DVC the liberty to file a suit, pursuant to
which the money suit was filed.
4. Meanwhile, on January 13, 2022, the petitioners made an application
for restoration of electricity. On January 31, 2022, the DVC claimed a
sum of Rs.2,72,96,891/- as outstanding dues against the petitioners,
with Delayed Payment Surcharge (DPS) at the rate of 18 per cent per
annum.
5. Learned counsel for the petitioners argues that the claim of the DVC is
barred by Section 56(2) of the Electricity Act, 2003 (in brief, "the 2003
Act"), since the outstanding DPS was not shown regularly in the bills
during two years subsequent to the disconnection. Secondly, it is
argued that after termination of the power purchase agreement by
operation of the Jharkhand Regulations, there cannot subsist any
"outstanding dues".
6. It is also argued by the petitioners that the DVC acted de hors the law
in claiming outstanding dues at their own rates, despite the
Jharkhand Electricity Regulatory Commission (JERC) having fixed
retail tariff in the meantime. It is contended that since the generation
tariff for the relevant period has already been assessed by the Central
Electricity Regulatory Commission (CERC), the retail tariff of
Jharkhand is required to be calculated on such basis. It is submitted
that the claim now made by the DVC did not find place in the winding
up petition or the suit filed by the DVC. Moreover, the claim was
never shown in the bills before disconnection.
7. Learned counsel for the petitioners reiterates that the provisional tariff
previously assessed for Jharkhand has now merged into the final tariff
and, as such, the latter has to be the basis of the claim for
outstanding dues, if any.
8. It is further contended that after the revised CERC rates came into
force on May, 2010, the DVC could not charge the petitioner for
electricity supply at its own rates. In such context, learned counsel
places reliance on Section 43(2), Section 45(1) and Section 79(1)(b) of
the 2003 Act to contend that it was the duty of the DVC/licensee to
restore the electricity connection of the petitioner in terms of the
CERC Regulations. The Central Commission has, as one of its
functions, the regulation of tariff of generating companies.
9. The learned Senior Advocate for the DVC controverts the submissions
made by the petitioners. Placing reliance on Clause 12.7 of the JERC
Regulations of 2015 pertaining to Electricity Supply Code, it is
contended by the DVC that after the lapse of 180 days from
disconnection, there has been no subsisting agreement between the
parties. Hence, any order of restoration of electricity connection, if
passed in the writ petition, would amount to reviving a terminated
contract.
10. Clause 12.13 of the JERC Regulation of 2015 mandates that for
restoration of electricity connection, disconnected for non-payment of
electricity charges, the consumer has to pay charges due from him
along with other ancillary charges. It is argued that the Regulation of
2015 flows from a statute and has statutory enforceability. Hence, the
petitioners are not entitled to get reconnection without paying the
charges as indicated above.
11. The writ petitioners, it is further argued, have not disputed the bills in
the writ petition but seek to challenge the same by way of its list of
dates, which does not assume the character of pleadings.
12. By placing reliance on Bharat Singh and others Vs. State of Haryana
and others, reported at (1988) 4 SCC 534, it is argued that in the
absence of requisite pleading and attendant evidence annexed to the
writ petition, the High Court will not look into any point of fact based
on law.
13. Even if it is assumed that the additional facts and documents annexed
to the list of dates could be looked into, the same pertains to a billing
dispute. Such conversion from a dispute relating to reconnection of
electricity into a billing dispute is not permissible, it is contended.
14. In the event the writ petitioners were to dispute the electricity bills, its
remedy lay before the concerned Grievance Redressal Officer (GRO)
under Clause 2(e) read with Clauses 8 and 12 of the JERC (Guidelines
for Establishment of Forum for Redressal of Grievances of the
Consumers, Electricity Ombudsman and Consumer Advocacy)
Regulations, 2020. Although statutory alternative remedy is not an
absolute bar in entertaining a writ petition, a billing dispute does not
come within the exceptions carved out in various judgments for
entertaining a writ petition.
15. The learned Senior Advocate for the DVC next contends that the DVC
charged for each of the relevant periods in the interregnum as per the
prevailing law, orders of the Appellate Tribunal (APTEL) and/or the
prevalent court orders, which held the field at the respective periods.
16. The details of such applicable rates and the corresponding law/orders
have been specifically argued on the basis of the written notes of
arguments of the DVC. Hence, there was no illegality on the part of
the DVC in charging at the rates as it did.
17. It is next argued that DPS is chargeable as per law for the entire
period of default. The limitation as stipulated in Section 56(2) of the
2003 Act commences from the date when the payment becomes 'first
due' and continues for the purpose of calculating the payables at the
time of restoring electricity connection to the consumer.
18. The Supreme Court order affirming the APTEL decision applying the
DVC tariff rates, passed on December 3, 2018, entailed that the DVC
could not have claimed the due charges before disconnection in 2011.
19. As the respective rates reached finality by virtue of the Supreme Court
order, there was no scope of raising bills at the revised rates prior to
disconnection of electricity supply to the petitioners.
20. It is stressed by the learned Senior Advocate for the DVC that only the
generation and transmission tariff has been finalized by the CERC,
but no final retail tariff has been fixed as yet for distribution of
electricity in Jharkhand by the JERC.
21. To reiterate the principle that no relief can be granted in a writ
petition unless specifically prayed for, in the context of the refund of
money claimed by the writ petitioners, it is submitted that the said
dispute is pending before the JERC at the instance of the consumers
as well as the DVC. Learned counsel cites the judgments reported at
(2010) 11 SCC 557 [Manohar Lal (dead) by LRS. Vs. Ugrasen (dead) by
LRS. and others] and (2010) 1 SCC 234 [Bharat Amratlal Kothari and
another Vs. Dosukhan Samadkhan Sindhi and others], in support of
the said proposition.
22. It is seen from the orders, copies of which have been produced by the
parties, that the DVC has charged outstanding dues during the entire
relevant period as per the rates prevalent at each juncture. Bills up to
the month of April, 2010 were raised as per the DVC tariff, even after
coming into force of the 2003 Act, in terms of the APTEL order dated
September 16, 2009. Since the petitioners are consumers based in
Jharkhand, where the provisional tariff was upheld by the High Court
at Jharkhand (Ranchi), they were bound to pay as per the provisional
tariff prevalent in the State of Jharkhand till retail tariff is determined.
23. Moreover, the writ petitioners have not challenged the outstanding
dues claimed by the DVC in the writ petition itself and, as rightly
contended by the DVC, cannot seek such relief post facto by way of
filling a list of dates, which is not a part of the pleadings. In such
context, the judgments of Bharat Amratlal Kothari (supra) and
Manohar Lal (dead) (supra), cited by the DVC, hold the field.
24. It is further seen that the petitioners have placed reliance on Gagan
Ferrotech Limited and another Vs. West Bengal Electricity Regulatory
Commission and others, an unreported judgment of this Court
rendered on January 24, 2022 in W.P.A. No.15428 of 2021 and other
connected writ petitions. By relying on such judgment, it is argued by
the petitioners that DPS cannot be charged prior to the final fixation of
retail tariff. The petitioners argue that if the DVC is of the view that
no retail tariff has yet been determined for Jharkhand, the proposition
laid down in Gagan Ferrotech (supra) would apply.
25. In the said judgment, it was one of the issues as to whether DPS could
be charged by the DVC from its consumers on the basis of the Central
Electricity Regulatory Commission (CERC) input tariff and/or
otherwise, before the final retail tariff is settled by the WBERC for the
particular periods 2006-09 and 2009-13. However, it has to be kept
in mind that such proposition was negated by holding that the DVC
could not do so, in the specific context of the said periods and in
respect of the state of West Bengal.
26. It is noteworthy that in the said cases, the final retail tariff had
already been fixed by the WBERC when the DPS was charged. As
such, it was held that once the retail tariff is fixed by the State
Commission, there cannot be any instance of charging DPS on the
basis of the previously prevalent rates.
27. In this context, certain paragraphs of the Gagan Ferrotech (supra)
judgment are required to be considered.
28. In paragraph 13 of the Judgment, it was specifically observed that
prior to the final fixation of retail tariff, the DVC had not claimed DPS
at any point of time. As opposed to the said case, in the instant case,
the retail tariff has not been shown to have been determined by the
JERC for Jharkhand till date.
29. Again, in paragraph 76 of the Gagan Ferrotech (supra) judgment, it was
held that DPS could not be charged at the first instance, without there
being any default regarding bills raised on the final tariff at any
previous point of time. In paragraph 77, this Court concluded that
even if any DPS was to be retrospectively claimed on the basis of
previous bills during the period 2009-2013, the same would be barred
by the two-year limitation as stipulated in Section 56(2) of the 2003
Act. In the said case, however, such question was held not to arise
since the DPS was claimed for the first time in 2021.
30. Insofar as the instant case is concerned, however, no retail tariff has
yet been fixed and, as such, the outstanding dues have to be charged
on the prevailing rates for each of the relevant periods, as per the
corresponding orders of the APTEL or the court or by operation of the
statute.
31. In the Gagan Ferrotech (supra) judgment, DPS was charged after final
fixation of retail tariff by the State Commission for the first time,
which was held to be barred under Section 56(2) of the 2003 Act. As
opposed to the said case, here the retail tariff for Jharkhand has not
yet been fixed. Keeping in mind that the commencement of limitation
under Section 56(2) of the 2003 Act is from the first due date, that is,
the date on which the part payment is made for the first time, the
context of Gagan Ferrotech (supra) is not applicable at all. In the said
case, since the DPS was charged after final fixation of retail tariff,
such retail tariff had to be the yardstick of final determination.
32. Hence, the principle laid down in Gagan Ferrotech (supra) judgment
was in the context of the facts as narrated above and do not apply to
the present case. In the present case, the DPS was claimed at the
relevant juncture when part payment was made and the cause of
action for DPS first arose. Hence, before the part payment was
tendered by the petitioners, there could not have arisen any occasion
to levy DPS, let alone the same being reflected continuously in bills
raised in the interregnum.
33. That apart, even after termination of the agreement, the claim of
outstanding dues still subsisted for the purpose of Section 56(1) of the
2003 Act, read with Clause 12.13 of the JERC Regulations of 2015.
The applicant is required to pay outstanding dues whenever a
restoration application is made. If the proposition of the petitioners
on the effect of the termination of the agreement by operation of law,
180 days post-disconnection, was to be accepted, then an absurdity
would arise. In such case, any defaulting consumer, in order to avoid
payment of outstanding dues and DPS, was merely required to wait
for expiry of the statutory 180 days in terms of Clause 12.13 and
apply for reconnection thereafter. As per the logic of the petitioners,
in such cases, merely because the agreement was terminated, DPS
could not be levied and/or outstanding dues charged by the licensee
for disconnection could not be claimed for reconnection. Such handy
device to avoid payment of dues, bypassing Clause 12.13 and Section
56(1), could not have been the intention of the legislature. Hence, to
avoid such absurdity, the only conclusion which can be arrived at is
that the applicant for reconnection is required to pay outstanding
dues whenever a restoration application is made.
34. As per the Regulations, the liability to pay such amount continues, at
least for the purpose of reconnection, although the quantum of
outstanding charges gets frozen on the termination of the agreement
after 180 days of disconnection.
35. Thus, in the present case, the DVC acted well within its jurisdiction in
charging the DPS and outstanding dues from the petitioners in terms
of its claim.
36. For the purpose of reconnection, such claim can be made by the
licensee within the contemplation of Clause 12.13 of the 2015
Regulations of the JERC, read with Section 56(1) of the 2003 Act.
37. However, inasmuch as the objection of the present dispute being
merely a billing dispute, since the writ petition primarily challenges
the underlying principles of such charges being levied, it cannot be
said that the dispute is merely confined to a billing dispute, to be
decided by the GRO. Since no challenge on the quantum of
outstanding dues itself was made at any point of time before the GRO,
the same cannot be reopened at this juncture. However, insofar as
the DPS is concerned, the DVC was justified in levying the sum in the
light of the above observations.
38. Hence, WPA No.5548 of 2022 is dismissed on contest, without any
order as to costs.
39. Urgent certified server copies, if applied for, be issued to the parties
upon compliance of due formalities.
( Sabyasachi Bhattacharyya, J. )
