Tata Yodogawa Limited vs Jharkhand State Electricity ...
2022 Latest Caselaw 3544 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
               (Letters Patent Appellate Jurisdiction)
                          L.P.A No. 217 of 2013
Tata Yodogawa Limited, a Company incorporated under the provisions of
Companies Act, 1956, having its registered office at XLRI Campus, Circuit
House Area (East), Post Box No.103, Jamshedpur-831001, District-
Singhbhum (East) and Works at-PO and PS-Gamharia, District-Saraikela
Kharsawan, through its Company Secretary Sri Prashant Kumar, s/o Sri
Ishwar Lal, r/o -4, Bagmati Road, PO & PS-Bistupur, Jamshedpur-831001,
District-Singhbhum(East)                                  ...... Appellant
                            Versus
1. Jharkhand State Electricity Board through its Chairman having its office
at Engineers Bhawan, H.E.C, Dhurwa, PO & PS-Dhurwa, District-Ranchi-
834004
2. The General Manger-cum-Chief Engineer, Singhbhum Area Electricity
Board, Jharkhand State Electricity Board, Cooperative Bank Building,
Bistupur, Jamshedpur, PO & PS-Bistupur,District-Singhbhum East
3. The Electrical Superintending Engineer, Electric Supply Circle,
Adityapur, Jharkhand State Electricity Board, Jamshedpur, PO & PS-
Bistupur, District-Singhbhum East
4. The State of Jharkhand through its Chief Secretary, having its office at
Project Bhawan, H.E.C, PO & PS-Dhurwa, District-Ranchi
5. Insolvency Resolution Professional of Tata Yodogawa Limited having its
office at XLRI Campus, Circuit House Area (East) Post Box No.103,
Jamshedpur-831001                                         ....Respondents

                                ---------------

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant         : Mr. Sanjay Kumar Singh, Advocate
For the JUVNL             : Mr. Mrinal Kanti Roy, Advocate
For Respondent Nos.2 to 4 : Mr. Manoj Tandon, Advocate

                             ---------------
                                  ORDER

th 7 September 2022 Per, Shree Chandrashekhar, J.

Tata Yodogawa Limited has challenged the order dated 2 nd May 2013 passed in CWJC No.852 of 2000(R).

2. By the time the present Letters Patent Appeal was filed on 27th June 2013, the appellant had already preferred Civil Review No.40 of 2013. The said civil review was dismissed on 17th July 2013 which necessitated filing of I.A No.5989 of 2013 seeking amendment in the present

Appeal to challenge the order dated 17th July 2013 passed in Civil Review No.40 of 2013.

3. By an order dated 10th September 2013, I.A No. 5989 of 2013 has been allowed.

4. Therefore, now the order dated 2nd May 2013 in CWJC No. 852 of 2000(R) and the order dated 17 th July 2013 in Civil Review No. 40 of 2013 passed by the writ Court are under challenge in L.P.A No.217 of 2013.

5. At the outset, we may indicate that an interlocutory application vide I.A No.5347 of 2013 was filed for a direction upon the then Jharkhand State Electricity Board (in short, Board) not to levy Delayed Payment Surcharge on the fresh bills raised by it, and for restraining the Board to issue bills on the basis of the Tariff Schedule of 1999 which was published on 6th April 2000.

6. I.A. No. 5347 of 2013 was dismissed on the ground that a similar interlocutory application vide I.A No. 4096 of 2013 has already been preferred by the appellant.

7. The aforesaid I.A. No.4096 of 2013 was disposed of by the same order observing that since the Letters Patent Appeal has already been fixed for final hearing on 26th September 2013 the aforesaid interlocutory application was not required to be entertained at that stage.

8. This is also relevant to mention here that I.A No.6653 of 2022 seeking stay of the further proceeding in the present Letters Patent Appeal has been dismissed by this Court vide order dated 26 th July 2022 and we have not been informed by Mr. Sanjay Kumar Singh, the learned counsel for the appellant that the said order was challenged before the Hon'ble Supreme Court.

9. Before the writ Court, a challenge was laid to the Board's internal communication dated 24th September 1999 by which the Tariff Schedule was made applicable with a retrospective date.

10. It appears that the appellant gave up challenge to the communication dated 24th September 1999 and an order to this effect was recorded by the writ Court on 14th September 2007.

11. Order dated 14th September 2007 reads as under:

"8/14.9.2007 Mr. V.P. Singh, learned Sr. counsel appearing on behalf of the J.S.E.B., raised a preliminary objection regarding the

maintainability of these writ petitions before this Court. It has been submitted that the petitioners have sought for quashing the tariff which is a subordinate legislation and according to the High Court Rules, the Division Bench has jurisdiction to hear such matter. Dr. Devi Pal, learned Sr. counsel appearing on behalf of the petitioners, submitted that in fact the petitioners intend to challenge the letter dated 16.3.2000 as contained in Annexure-13 and also for declaration that the tariff scheduled for induction furnace as contained in Annexure-5, which is meant exclusively for induction furnace units, is not applicable to the petitioners and as such he abandons the said prayer Relief No.1 whereby the petitioners have sought for quashing the tariff.

In that case, Mr. V.P. Singh has got no objection.

Accordingly, the petitioners are allowed to abandon their prayer as sought for in Relief No.1.

As jointly prayed for, put up both the cases on 21.9.07."

12. Thus, CWJC No.852 of 2000(R) was confined to applicability of the Tariff of 1999 to the consumers having Induction Furnace.

13. In the order dated 2nd May 2013, the writ Court has dealt with every aspect of the matter and by elaborate reasoning the writ petition was dismissed in part.

14. The writ Court held that the Tariff Schedule notified by the Board on 24th September 1999 which was followed by the Gazette Notification dated 15th March 2000 would apply to the unit of Tata Yodogawa Limited and, therefore, the appellant was liable to pay electricity bills raised on the basis of Tariff Schedule of 24th September 1999.

15. Mr. Sanjay Kumar Singh, the learned counsel for the appellant submits that the Tariff Schedule of 24 th September 1999 came into existence pursuant to a demand made by the Bihar Steel Manufacturers' Association which followed discussions and deliberations between the members of Association and competent authority of the Board, whereas the appellant which uses Induction Furnace falls under a different category and while so the Tariff Notification of 24th September 1999 shall not apply to the appellant's unit.

16. To lay support to his submissions, Mr. Sanjay Kumar Singh, the learned counsel for the appellant would submit that the requirements of the appellant's unit, its usage and the requirements under the Tariff Schedule of 1993 are different. It is submitted that all Induction Furnace consumers were dealt with under the Tariff Notification of 1993 and, therefore, the findings recorded by the writ Court that the Tariff Notification of 24 th September 1999 shall apply to the appellant's unit is patently erroneous.

17. We do not see any ground to record our disagreement with the conclusion of the writ Court that the Tariff Schedule of 24 th September 1999 shall apply to the appellant.

18. On a glance at the writ Court's order, we observe that the writ Court has gone deep into the matter and examined merits of the stand put forth by the appellant by referring to the Manufacturers' Manual (Siemens Manual), the method of calculation of capacity of Induction Furnace and data assessed by National Metallurgical Laboratory, Jamshedpur.

19. We further find that the writ Court has referred to the judgments of the Hon'ble Supreme Court in "M/s Ashok Soap Factory and Anr. v. Municipal Corporation of Delhi and Ors." (1993) 2 SCC 37, "M/s Hyderabad Vanaspathi Ltd. v. Andhra Pradesh State Electricity Board and Ors." AIR 1998 SC 1715, "Hyderabad Engineering Industries Ltd. etc. etc. v. A.P. State Electricity Board etc. etc." AIR 1988 SC 985, "Nathi Devi v. Radha Devi Gupta" (2005) 2 SCC 271 and "Nasiruddin and Ors. v. Sita Ram Agarwal" (2003) 2 SCC 577, to arrive at a conclusion that the Tariff Schedule of 24th September 1999 shall apply to the appellant's unit.

20. The writ Court has finally held that the Tariff Schedule applies to all consumers with contract demand of 300 KVA or more even for Induction Furnace. There is no dispute that the contract demand of the appellant is 10,500 KVA and, therefore, it was held liable to pay electricity charges as per Tariff Schedule of 24th September 1999. The writ Court rejected the argument raised on behalf of the appellant that Induction Furnace consumers formed a separate class observing that the Board has justification for laying down uniform tariff for the consumers.

21. In paragraph no. 34 of the order dated 2 nd May 2013 the writ Court has observed as under:

"34. As already observed herein-above, the tariff does not make any distinction between the different categories of induction furnaces nor the individual capacity in terms of the loads and lays down an uniform criteria and yardstick applicable to all consumers having induction furnace with contracted demand of 300 KVA or more. As already observed earlier also, the fairness and reasonableness of the criteria of laying down the minimum load of 01 tonne induction furnace to be 600 KVA under the said tariff is also not in question. Learned Senior Counsel for the petitioner has laid much emphasis on the expression used in the tariff "no supply will be given on loads below this norms". This sentence in isolation cannot be read out of context to mean that if the petitioner's induction furnace has a lesser load, the Board is not required to

give supply to the petitioner Unit on the basis of this tariff and some other tariff would be applicable to it. In considering the aforesaid question, when there is any ambiguity, the court must look at the statute or the instrument as a whole and consider the appropriateness of the meaning in broad context avoiding absurdity and inconsistency or unreasonableness which may render the statute unconstitutional. While reading the tariff as a whole, the aforesaid expression can only be held to mean that no consumer of induction furnace will be entitled to claim supply of loads below the norms of 600 KVA for 01 tonne induction furnace. The petitioner's contention on the meaning of the above quoted expression is unacceptable.

If such an interpretation is advanced, then the whole object of fixation of the tariff would stand defeated as no consumer would subject itself to the uniform criteria of the load of 600 KVA However, since the petitioner had alone raised the question relating to the capacity of its induction furnace as others admittedly had filed affidavit on their own in respect of individual capacity of such consumers, the Board also appears to have undertaken an exercise to carry out such computation by taking physical measurement of the dimension of the petitioner's two induction furnaces."

22. However, the writ Court found error in computation of capacity of Induction Furnace of the appellant by applying two methods in

(a) including Ramming Mass and (b) excluding Ramming Mass. The writ Court observing that capacity of Induction Furnace is computed for its use in melting purpose, held that computation of electricity bills by computing capacity of the appellant including Ramming Mass and Concrete Bottom was not scientific and correct computation of capacity of Induction Furnace. The writ Court further observed that the unique design of the appellant's Induction Furnace also needs to be factored in order to arrive at a correct computation of capacity. The writ Court, therefore, issued a direction to the Board to raise electricity bill after carrying out necessary correction in the computation of capacity of Induction Furnace of the appellant.

23. The plea raised by the appellant that the Tariff Notification dated 24th September 1999 shall not apply to its unit because it was not part of the bargain and, moreover, it falls under a different category has rightly been rejected by the writ Court. The Tariff Schedule was decided by the Board in exercise of the powers under Electricity Supply Regulation, 1948. A reference of the deliberations with Bihar Steel Manufacturers' Association as regards the Tariff Schedule would make no difference to the validity of the Tariff Schedule so framed on

24th September 1999. The aforementioned Tariff Schedule was published in the Gazette on 6th April 2000 and by such publication it has attained the force of law. The Tariff Schedule has been made applicable to a class of consumers more specifically Induction Furnace consumers having contract demand of 300 KVA or more.

24. There is no dispute that the appellant's Induction Furnace falls under the same category having contract demand of 10,500 KVA.

25. In Civil Review No.40 of 2013, the writ Court again dealt with the new issues raised by the appellant. In our opinion, those issues were not required to be dealt with by the writ Court after CWJC No. 852 of 2000(R) was dismissed by a 21-page judgment. Just on account of the discussions made in the writ Court's order any new ground raised by the appellant was barred by constructive res judicata. Still, the writ Court has dealt with each issue and delivered the judgment which requires no interference by this Court. The appellant has failed to demonstrate any illegality in the writ Court's order on account of which the present Letters Patent Appeal can be maintained by it.

26. For the aforesaid reasons, we find no merit in L.P.A No.217 of 2013 which is, accordingly, dismissed.

27. But before parting with this matter, we intend to indicate that the present Letters Patent Appeal has remained on 'Board' for about 10 years and, in the meantime, it was listed on more than 40 occasions - almost all adjournments were taken on behalf of the appellant. We, therefore, would indicate that any benefit availed by the appellant on account of pendency of L.P.A No.217 of 2013 shall not now continue and rights of the parties shall be determined as on 17 th July 2013, when Civil Review No. 40 of 2013 was dismissed by the writ Court.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated : 7th September 2022 sudhir/N.A.F.R.