Madhya Pradesh High Court
Madhya Pradesh Paschim Kshetra ... vs G.R. Infraprojects Ltd. Through ... on 20 February, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 20th OF FEBRUARY, 2023
WRIT APPEAL No. 167 of 2023
BETWEEN:-
MADHYA PRADESH PASCHIM KSHETRA VIDYUT VITRAN COMPANY
1. LTD. THROUGH SUPERINTENDING ENGINEER MPPKVV COMPANY
LIMITED DISTRICT JHABUA (MADHYA PRADESH)
MADHYA PRADESH PASCHIM KSHETRA VIDHYUT VITRAN
2. COMPANY LTD. THR MANAGING DIRECTOR MPPKVV R/O MPPKVV
GPH COMPOUND POLO GROUND INDORE (MADHYA PRADESH)
MADHYA PRADESH PASCHIM KSHETRA VIDHYUT VITRAN
3. COMPANY LTD. THROUGH SUPERITENDING ENGINEER HT
BILLING CELL MPPKVV CO. LTD. INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI ANSHUMAN SHRIVASTAVA, LEARNED COUNSEL FOR THE
APPELLANTS)
AND
G.R. INFRAPROJECTS LTD. THROUGH AUTHORIZED PERSON MOTI
BHATNAGAR S/O SHRI MAHENDRA SINGH BHATNAGAR
1.
WHITEWOOD 202ND FLOOR MALIBU TOWNE GURGRAM
(HARYANA)
THE STATE OF M.P. THROUGH PRINCIPAL SECRETARY ENERGY
2.
DEPARTMENT VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
2
This appeal coming on for admission this day, JUSTICE
SUSHRUT ARVIND DHARMADHIKARI passed the following:
ORDER
Heard on the question of admission and interim relief.
This intra-court appeal under Section 2 (1) of the M.P. Uchcha
Nyayalaya (Khand Nyaayapeeth Ko Appeal) Adhiniyam 2005 assails the
final order dated 14.09.2022 passed in W.P. No.9654/2021. In the writ
petition, the petitioner had prayed for the following reliefs:-
"(i) That this petition may kindly be allowed and an
appropriate writ, order of direction be issued to quash the
impugned demand dated 22.03.2021 (Annexure P-1) with
annexed Audit Report Para and Notice dated 13.05.2021
(Annexure P-2) issued by respondent No. 2.
(ii) That, any other relief as deemed fit may kindly be
granted by the Hon'ble Court."
2. The facts giving rise to filing of this appeal are that the appellants
are the partnership firms and own a stone crusher unit. The appellants had
applied for permanent electricity HT connection of 500 KVA. An
agreement was entered into between the parties on 30.06.2020. The
requisite deposit and fees etc. have also been deposited by the appellants
at the time of execution of the agreement. However, on the basis of some
report of the Comptroller and Auditor General of India (CAG) conducted
at different places, demand notice was issued to the appellants, which was
challenged in the writ petitions whereby the appellants were made liable to
pay the amount as per audit recovery and that the connections granted
were treated as temporary connection for billing purposes. The learned
single Judge while deciding the batch of writ petitions held as under:-
"10] On due consideration of submissions and perusal of the
documents filed on record as also the decision rendered by the
Supreme Court in the case of U.P. Power Transmission
Corporation Limited (Supra), this Court finds that so far as
the audit recovery on the basis of the report of Comptroller
and Auditor General of India is concerned, the Supreme Court
in the aforesaid case has held as under:-
"60. As observed above, UPPTCL demanded and partly
realized cess on the supply Contract, solely on the basis
of report of the CAG. In our considered view, in the
absence of any adjudication, it was impermissible for
UPPTCL to issue the impugned communication to
realize cess solely on the basis of the report of the
CAG.
61. In Centre of Public Litigation v. Union of India
reported in (2012) 3 SCC 1, this Court held that when
CAG report was subject to scrutiny of the Public
Accounts Committee and the Joint Parliamentary
Committee, it would not be proper to refer to to
findings and conclusions contained therein. In this
context, reference may also be made to the decision of
this Court in Arun Kumar Agrawal v. Union of India
and Others reported in where this Court held:-
"56. CAG may be right in pointing out that
public monies are to be applied for the
purposes prescribed by Parliament and that
extravagance and waste are minimised and
that sound financial practices are encouraged
in estimating and contracting, and in
administration generally.
67. The question that is germane for
consideration in this case is whether this Court
can grant reliefs by merely placing reliance on
the CAG's Report. The CAG's Report is
always subject to parliamentary debates and it
is possible that PAC can accept the ministry's
objection to the CAG Report or reject the
report of the CAG. The CAG, indisputably is
an independent constitutional functionary,
however, it is for Parliament to decide whether
after receiving the report i.e. PAC to make its
comments on the CAG's Report."
(emphasis supplied)
11] In view of the above, this Court is of the considered opinion
that the aforesaid finding recorded by the Supreme Court applies
mutatis-mutandis to the facts of the present case as well. It is also
found that although the demand has been raised by taking
exception to the agreement executed between the parties itself,
holding that the connection granted to the petitioner ought to have
been temporary in nature instead to permanent but, till date even
the aforesaid agreement has not been repudiated by the
respondents. It is also found that although the petitioner is
involved in the business of stone crushing, but it cannot be said
that the aforesaid unit is for the construction purpose as the
construction purpose would mean, construction of
buildings/power plants etc. and for the purpose of setting up of
industrial units as is prescribed in Rule 4.43 of the M.P.
Electricity Supply Code, 2013 which reads as under:-
"4.43 Any person requiring power supply for purpose
that is temporary in nature, may apply for temporary
power supply for a period of less than two years in the
Form as required by the Licensee. The period of
temporary connection can be extended up to five years
for construction of buildings/power plants and for the
purpose of setting up of industrial units. Requisition for
temporary supply shall normally be given 7 days before
the day when supply is required for loads up to 10 kW
and 30 days before for higher the said loads Under no
circumstances, permanent connection
be allowed for construction purposes."
12] It might be that the need of the petitioner was temporary,
but as the agreement has been executed by the respondent
Licensee who is a State within the ambit of Art.12 of the
Constitution of India, for permanent connection, no retrospective
recovery can be made on the basis that the agreement was wrongly
executed as it was supposed to be for temporary connection. This
is for the reason that as the subsequent denial on the part of the
respondent would be in violation of the doctrine of promissory
estoppel, as the petitioner has altered his position on the basis of
the agreement between the parties. Thus, on this count, as also on
the ground that the impugned demand notice has been issued by
the respondents without complying with the provisions of the
Comptroller and Auditor-General's (Duties, Powers and etc.) Act,
1971 or any violation of the order passed by the Supreme Court in
the case of U.P. Power Transmission Corporation Limited (Supra),
the impugned demand notice cannot be sustained.
13] Resultantly, the petitions stand allowed and the impugned
demand notices are hereby set aside. It is found that the petitioner
has paid certain amount to the respondents as directed by this
Court while granting interim relief vide order dated 13.07.2021
and 18.08.2021, it is directed that the amount paid by the
petitioner shall also be remitted back to the petitioner with the
applicable bank interest rate within a period of one month from
the date of receipt of certified copy of this order."
3. Learned counsel for the appellants contended that the respondent
has straightway issued the demand notice even without there being any
adjudication merely on the basis of Comptroller & Auditor General's
report. He further contended that the respondents have been found to be
involved in the construction business and were carrying on its business for
the purposes of providing raw material to contractors constructing the
roads, therefore, the respondent's business is closely connected with the
construction work as per Clause 4.43 of the M.P. Electricity Supply Code,
2013 and, that permanent connections cannot be given for construction
purposes. The learned single Judge erred in allowing the writ petitions
without considering the nature of work being carried out by the
respondents, hence, the writ appeals deserve to be allowed.
4. Learned counsel for the respondents have vehemently opposed the
prayer and submitted that the respondents have already applied for
electricity disconnection. They have placed reliance upon the judgment of
the Apex Court delivered in the case of U.P. Power Transmission
Corporation Limited and Another Vs. CG Power and Industrial
Solutions Limited and Another reported as (2021) 6 SCC 15 wherein the
Apex Court in no uncertain terms held that "in the absence of any
adjudication, it is impermissible for the power generating company to
issue the communication to realize cess solely on the report of the CAG".
5. Learned single Judge relying on the judgment delivered in the case
of U.P. Power Transmission Corporation Limited and Another (supra)
allowed the writ petitions and directed the appellants herein to refund the
amount to the respondents with applicable bank interest rate within a
period of one month from the date of receipt of certified copy of the order.
6. This Court does not find any error in the order passed by the learned
single Judge particularly in view of the fact that the agreement is still in
existence. Moreover, instead of issuing show-cause notice to the
respondents, the appellants have straightway issued the demand notice
without there being any adjudication or following the principles of natural
justice. Learned single Judge has not committed any error so as to interfere
in the order passed in the batch of writ petitions. However, the learned
single Judge ought to have granted liberty to the appellants to proceed in
accordance with law against the respondents.
7. In view of the aforesaid, the order passed by the learned single
Judge is modified to the extent that the appellants would be at liberty to
take action in accordance with law prospectively, if so advised.
Accordingly, this writ appeal is disposed of.
(S.A.Dharmadhikari) (Prakash Chandra Gupta)
Judge Judge
Patil
Digitally signed by SHAILESH PATIL
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serialNumber=3E01C00D600649CCA413655933
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F, cn=SHAILESH PATIL
Date: 2023.02.21 10:07:00 +05'30'
