Jharkhand High Court
M/S Bhagwati Oxygen Limited ... vs Hindustan Copper Ltd. on 5 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.4365 of 2023
M/s Bhagwati Oxygen Limited through its Managing Director Shri Himanshu
Sharma, resident of 67, Park Street, Kolkata-700016, West Bengal.
... ...Petitioner
Versus
1. Hindustan Copper Ltd., a Govt. of India Enterprises, Indian Copper
Complex, Ghatshila, East Singhbhum though its Executive Director
2. Deputy General Manager (Works), Hindustan Copper Ltd., Indian Copper
Complex, Ghatshila, East Singhbhum ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr. M.S. Mittal, Sr. Adv.
For the Respondents : Mr. A.K. Das, Advocate
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05/05.09.2023: Heard the parties.
2. This writ petition has been filed for the following reliefs:-
(i) For issuance of an appropriate writ/order/direction or writ in
the nature of mandamus directing the Respondents to
immediately and forthwith restore the electrical connection of
the Petitioner which was disconnected on 22.07.2023 as the
same is totally illegal in the absence of any notice for
disconnection.
(ii) For issuance of an appropriate writ/order/direction or writ in
the nature of certiorari for quashing the letter dated
05.08.2023 issued by D.G.M. (Works) Respondent No.2,
(Annexure-11) to the extent it has been stated that the
Respondents are unable to restore power supply owing to
major technical fault in the VCB Panel and the Respondents
would however permit the Petitioner to make alternate
arrangement at site to enable the Petitioner to dismantle the
Plant.
3. From the arguments and the pleadings of the parties, it appears that
the respondent- Hindustan Copper Ltd., a public undertaking of the Central
Govt., has entered into an agreement with the petitioner-Company for supply
of Oxygen and for that purpose, the petitioner has established a plant in the
premises of respondent-Company and some residential areas have also been
erected.
4. The fact is not in dispute that the respondent-Company is a public-
sector undertaking and the entire premises in question is within the control of
respondent-Company. Now, the liability of supply electricity has been
disputed by referring contract and on the ground that there has been major
breakdown in the VCB Panel which has caused failure in supply of power and
further plants are non-functional.
-2- W.P.(C) No.4365 of 2023
5. It has also been argued by the counsel for the respondents that after
expiry of the agreement, the petitioner was supposed to vacate the premises
but it is under occupation and the occupation is deemed to be unauthorized.
On the above basis, it has been submitted that the petitioner is not entitled for
electric supply from the respondent Company.
6. On the other hand, learned senior counsel for the petitioner has
submitted that even if electric supply is under the Contract, then also the
respondent-Company being the State, cannot absolve from its liability of
supply electricity to the petitioner company.
The State has to act as a rational company and any irrationality is
negation of Article 14 of the Constitution of India. For this purpose, learned
senior counsel for the petitioner has relied upon paragraph-82.3 of the
judgment of Hon'ble Supreme Court in the case of M.P. Power Management
Company Limited, Jabalpur vs. Sky Power Southeast Solar India Private
Limited & Ors. reported in (2023) 2 SCC 703, which reads as follows:
82.3. The mere fact that relief is sought under a contract which
is not statutory, will not entitle the respondent State in a case by
itself to ward off scrutiny of its action or inaction under the
contract, if the complaining party is able to establish that the
action/inaction is, per se, arbitrary.
7. Learned senior counsel has also referred to proviso of Section 14 of
the Electricity Act, 2003 which reads as follows:-
Provided also that the Government company or the
company referred to in sub-section (2) of Section 131 of this
Act and the company or companies created in pursuance of the
Acts specified in the Schedule, shall be deemed to be a licensee
under this Act.
8. Referring to the above, it has been contended that the Govt.
company is deemed licensee and the respondent-Company is a Govt. company
(not in dispute).
9. Having heard learned senior counsel for the petitioner, counsel for
the respondents and on perusal of the record, it appears that the premises in
question belongs to the Hindustan Copper Ltd. which is a Govt. company.
Further, proviso of Section 14 of the Electricity Act is very much clear in this
regard.
Further, in the present case, being the Govt. company, it is a duty of
the respondent to supply electricity to the consumer of the locality under
control. Once, the Govt. Company travel into arena of the deemed licensee,
then licensee has no other option but to follow the mandate of the Electricity
Act and the respondents-company has to supply the electricity to the entire
-3- W.P.(C) No.4365 of 2023
Consumer of that locality being deemed licensee. The respondents-company
has option not to assume function of the deemed licensee, but once function of
the deemed licensee assumed, then respondent-company is bound to follow the
Electricity Act, 2003. The Electricity Act, 2003, mandates upon every licensee
to supply electricity to the consumer without interruption and electricity
supply cannot be disturbed. There is concept of wheeling also. Electricity Act
is a complete code in itself. The relationship of licensee and consumer has to
be regulated by the Act and not by contract. The Act will override the
agreement if, contrary to the provision of the Act.
In the present case, admittedly, the respondent- govt. company has
assumed the role of deemed licensee and the respondent-company has
supplied the electricity to the petitioner-company till date as a consumer and
bill accordingly has been raised. Now, respondents-company cannot deny it
on the ground that the premises in question, occupied by the petitioner,
company is either authorized or unauthorized, that is the separate issue to be
decided by the different authorities and are left open to be decided in the
appropriate proceeding. In the present case, only issue to be decided is
discontinuation of supply of electricity to the petitioner.
10. As discussed above, the respondents-company being govt. company
and being deemed licensee is under the obligation to continue supply of
electricity as per the mandate of Electricity Act, 2003 and denial can only be
under the provision of Electricity Act, 2003. In the present case, no reason has
been shown/assigned for discontinuing the electricity supply to the petitioner
although the petitioner-company is not a defaulter.
11. Considering the above facts and the discussions, present writ petition
is, hereby disposed of, directing the respondents-authority to restore the
electric connection of the petitioner within two weeks from the date of
receipt/production of a copy of this order. Respondents- authority will take all
steps, in this regard, within a week.
12. Needless to say that the petitioner-company has to pay all the legal
dues and if there is any default in payment of legal dues, the respondents
company is at liberty to disconnect the electric connection of the petitioner.
(Rajesh Kumar, J.)
Ravi/-
