Calcutta High Court (Appellete Side)
Centom Industries Limited And ... vs West Bengal Electricity ... on 17 March, 2023
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No.4854 of 2023
Centom Industries Limited and another
Vs.
West Bengal Electricity Regulatory Commission and others
For the petitioners : Mr. Surajit N. Mitra,
Mr. Tanoy Chakraborty,
Mr. Shayak Mitra,
Mr. Abhijit Sarkar,
Mr. Abhik Chitta Kundu,
Ms. Abhipiya Sarkar
For the DVC : Mr. Abhratosh Majumder,
Mr. Deepak Agarwal,
Mr. Prasun Mukherjee
Hearing concluded on : 15.03.2023
Judgment on : 17.03.2023
Sabyasachi Bhattacharyya, J:-
1.
The petitioners are consumers of electricity under the Damodar Valley
Corporation (DVC) and are members of the Damodar Valley Power
Consumers' Association. The present writ petition has been preferred
challenging a disconnection notice dated February 20, 2023 issued by
the DVC to the petitioners.
2. Learned senior counsel appearing for the petitioners argues that in
view of the successive orders passed by the Appellate Tribunal for
Electricity (APTEL), at present, the DVC is precluded from claiming
any arrears for the tariff control periods 2017-2018 and 2018-2020.
3. It is contended that the basis of the disconnection notice impugned
herein, however, was non-payment of such arrears.
4. Learned senior counsel for the DVC controverts such submissions and
argues that in the impugned disconnection notice, it was specifically
mentioned that the arrear amount for the control periods 2017-2018
and 2018-2020 were excluded. Hence, the said ground of challenge is
not tenable in the eye of law.
5. It is further argued that previously the petitioners had left huge
amounts of dues as electricity charges, which are being paid by the
petitioners in agreed instalments. Although the present claim has no
nexus with the said instalments, it is contended that the petitioners
are habitual defaulters.
6. It is further argued that the petitioners have resorted to forum
shopping inasmuch as different sets of consumers of the DVC have
approached different forums, including the APTEL and this Court, by
preferring appeals and applications under Article 226 of the
Constitution respectively. Hence, it is argued that the writ petition
ought to be dismissed.
7. Certain orders passed by the APTEL acquire relevance in the context.
In a challenge preferred by one Inox Air Products Private Limited, the
APTEL, vide order dated June 6, 2022 had passed an interim order
staying the payments of arrears by the appellant therein subject to the
condition that the appellant pays full tariff at the rate as determined
by the impugned tariff order (for the control period 2017-2018) dated
May 5, 2022 for the period commencing with the date of the impugned
order and continues to do so month by month against the periodic
bills raised under the contract between the parties.
8. The same tariff order was challenged by the Damodar Valley Power
Consumers' Association, of which the petitioners are members. Vide
order dated June 21, 2022, on an appeal preferred by the Association,
the APTEL adopted the interim dispensation granted in the Inox
matter. The present petitioners, in view of such interim order dated
June 21, 2022 in favour of their Association, is, undoubtedly, entitled
to protection under the same. By a subsequent order dated July 1,
2022, on another appeal preferred by a different consumer of the
DVC, preferred against the same tariff order dated May 5, 2022 for the
control period 2017-18, the APTEL adopted the same interim order in
respect of all affected parties.
9. As a result, on and from July 1, 2022, all the consumers affected by
the impugned tariff order for the control period 2017-18 were entitled
to be protected from arrear charges levied on the basis of the said
tariff order.
10. Again, vide order dated October 7, 2022, in another appeal filed by the
Damodar Valley Power Consumers' Association against the tariff order
dated May 5, 2022 (in respect of control period 2017-18) and the tariff
order dated June 17, 2022 (for control period 2018-20), the APTEL
granted a blanket order of stay of the said two impugned tariff orders.
11. The DVC moved Civil Appeal Nos.8091-8098 of 2022 against the said
bunch of orders dated October 7, 2022 passed by the APTEL. The
Supreme Court, vide order dated November 23, 2022 clarified the
order, thereby restoring the initial order dated June 6, 2022 of the
APTEL, by maintaining the stay of arrears charged on the basis of the
impugned tariff orders, subject to the consumers going on paying
current electricity charges raised on the basis of the impugned tariff
orders.
12. As such, the current legal position is that the DVC is entitled to
charge current electricity charges on the basis of the tariff orders
dated May 5, 2022 (for 2017-2018) and June 17, 2022 (for control
period 2018-2020), whereas the arrears chargeable on the basis of the
said orders have been stayed.
13. In such perspective, the present petitions are justified in arguing that
the DVC could not charge the arrears for the control periods 2017-
2018 and 2018-2020.
14. However, a bare scrutiny of the impugned disconnection notice dated
February 20, 2023 reveals that the said notice was issued on the basis
of the non-payment of electricity charges as per energy bill raised on
February 2, 2023.
15. The said energy bill is annexed at page 293 onwards of the writ
petition. It is seen that the net amount charged in the bill was
Rs.7,15,98,654/-.
16. The arrear installments for the control period 2018-20 was shown
therein to be Rs.11,46,270/-.
17. In the impugned disconnection notice, however, the DVC clearly
specified that instead of Rs.7,15,98,654/-, which was shown as the
net payable amount in the bill dated February 2, 2023, upon
exclusion of the arrear amount for the periods 2017-18 and 2018-20,
the net payable comes down to Rs.7,04,52,384/-.
18. It is relevant to mention here that the arrears for the control period
2017-18 were not reflected in the Bill dated February 2, 2023 at all,
whereas the arrear installment for the control period 2018-20, which
was reflected in the said bill, was specifically excluded in the
impugned disconnection notice.
19. As such, it is crystal-clear that the DVC, in the impugned
disconnection notice, did not claim the arrear amounts for the control
periods 2017-18 and 2018-20 from the petitioners at all.
20. Upon excluding such amount, the net payable amount came to
Rs.7,04,52,384/-, out of which the petitioners had made payment of
Rs.3,66,62,622/-. Hence, the DVC only claimed the balance amount
of Rs.3,37,89,762/- which remained unpaid as on February 18, 2023
for the consumption month of January, 2023.
21. It is relevant to mention here that in the bill dated February 2, 2023,
the due date of payment was shown as February 17, 2023. As such,
the mention of February 18, 2023 as the relevant date when the
arrears remained unpaid was absolutely in consonance with the bill.
22. It may further be noted that the Supreme Court, in its order dated
November 23, 2022, had given protection to the extent that there
would be stay of arrears regarding the control periods 2017-18 and
2018-20, on condition that the consumers go on paying current
electricity bills, to be raised on the basis of the impugned tariff orders
dated May 5, 2022 and June 17, 2022.
23. Thus, the claim made in the disconnection notice by the DVC was
justified by all yardsticks.
24. Moreover, the DVC gave clear fifteen days' period from the date of
issuance of the notice, failing which the power supply line of the
petitioners was to be disconnected under Section 56(1) of the
Electricity Act, 2003, read with Clause 4.1.1 of the WBERC (Electricity
Supply Code) Regulations, 2013.
25. In view of the above discussions, I do not find any irregularity or
illegality in the said disconnection notice issued by the DVC to the
petitioners. The same, being in consonance with all the orders of the
APTEL and the Supreme Court, does not call for any interference by
the Writ Court.
26. Insofar as the argument regarding this Court having turned down the
challenge to the 2017-18 control period tariff order dated May 5, 2022
is concerned, it was categorically mentioned in this Court's order that
the ground of challenge was whether a single year tariff control period
was tenable in the eye of law under the multi-year tariff structure to
followed by the licensees. Such ground was rejected and the writ
petition was dismissed. As such, it cannot be said that there was any
bar on the petitioners from challenging the tariff orders dated May 5,
2022 and June 17, 2022 on merits otherwise than on the point
decided by this Court.
27. Insofar as the allegation of forum shopping is concerned, the same is
also not acceptable, since the appeals preferred before the APTEL
under Section 111 of the Electricity Act, 2003 and the challenge
thrown to the principle on which the tariff order was determined for
the relevant control period under Article 226 of the Constitution were
entirely different in scope. As such, the APTEL appeals operate in a
different field than the challenge thrown before this Court under
Article 226 of the Constitution of India. Hence, it cannot be accepted
that the petitioners have been forum shopping.
28. However, in view of the observations made above, the present
challenge cannot be allowed, since there was no illegality and/or
irregularity in the disconnection notice issued on February 20, 2022
by the DVC, which is impugned herein.
29. Accordingly, WPA No.4854 of 2023 is dismissed on contest without
any order as to costs.
30. However, it is made clear that nothing in this order shall prejudice the
rights and contentions of the parties in the pending challenges before
the APTEL.
31. Urgent certified server copies, if applied for, be issued to the parties
upon compliance of due formalities.
( Sabyasachi Bhattacharyya, J. )
