Madhya Pradesh High Court

Officer In Charge Indore Sahkari ... vs M.P.Pashchimi Kshetra Vidhyut ... on 13 September, 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 PRANAY VERMA
ON THE 13 th OF SEPTEMBER, 2023
WRIT APPEAL No. 95 of 2011

BETWEEN:-
1. DELIGHT DAIRY LTD. AND ANR. BG-123 SCHEME NO.74 C
VIJAY NAGAR INDORE (MADHYA PRADESH)

2. ANIL KUMAR SHARMA S/O SHRI N.R SHARMA, AGED
ABOUT 41 YEARS, OCCUPATION: SERVICE 23,GAJRA
GEARS COLONY MOTI BUNGALOW (MADHYA PRADESH)

.....APPELLANTS
(SHRI NILESH BHAWSAR, COUNSEL FOR THE APPELLANTS).

AND
1. M.P.PASHCHIM KSHETRA VIDYUT VITRAN CO.LTD. AND
A N R . THR.CHIEF ENGINEER POLOGROUND INDORE
(MADHYA PRADESH)

2. CHAIRMAN M.P ELECTRICITY REGULATORY
COMMISSION URJA BHAWAN SHIVAJI NAGAR (MADHYA
PRADESH)

.....RESPONDENTS
(SHRI ABHISHEK TUGNAWAT, COUNSEL FOR RESPONDENT NO.1).
(SHRI SUMER SINGH CHOUHAN, COUNSEL RESPONDENT NO.2)

WRIT APPEAL No. 69 of 2011

BETWEEN:-
1. ANIK INDUSTRIES LIMITED 2/1, SOUTH TUKOGANJ
INDORE (MADHYA PRADESH)

2. SHAILESH KUMATH S/O RAJENDRA KUMATH, AGED 33
Y E A R S 2/1, SOUTH TUKOGANJ, INDORE (MADHYA
PRADESH)
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 9/14/2023
2:28:19 PM
2
.....APPELLANTS
(SHRI AJAY BAGADIA, LEARNED SENIOR ADVOCATE ASSISTED BY MS.
ANURADHA BAGADIYA, COUNSEL FOR THE APPELLANTS)

AND
1. M.P.PASHCHIM KSHETRA VIDYUT VITRAN CO.LTD.
THROUGH CHIEF ENGINEER, POLOGROUND INDORE
(MADHYA PRADESH)

2. M.P. ELECTRICITY REGULATORY COMMISSION,
THROUGH ITS CHAIRMAN, URJA BHAWAN, SHIVAJI
NAGAR, BHOPAL (MADHYA PRADESH)

.....RESPONDENTS
(SHRI ABHISHEK TUGNAWAT, COUNSEL FOR RESPONDENT NO.1).
(SHRI K.S.CHOUHAN, COUNSEL FOR RESPONDENT NO.2)

WRIT APPEAL No. 94 of 2011

BETWEEN:-
INDORE SAHKARI DUGDHA SANGH MARYADIT, THROUGH
OFFICE IN CHARGE CHANDA TALAWALI, MANGLIA,
DISTT.INDORE (MADHYA PRADESH)

.....APPELLANT
(SHRI ASHUTOSH NIMGAONKAR, COUNSEL FOR THE APPELLANT).

AND
1. M.P.PASHCHIMI KSHETRA VIDHYUT VITRAN CO.LTD.
THROUGH CHIEF ENGINEER, POLOGROUND,INDORE
(MADHYA PRADESH)

2. CHAIRMAN M.P ELECTRICITY REGULATORY
COMMISSION THROUGH ITS CHAIRMAN URJA BHAWAN
SHIVAJI NAGAR (MADHYA PRADESH)

.....RESPONDENTS
(SHRI PRASANNA PRASAD, COUNSEL FOR RESPONDENT NO.1)
(SHRI K.S. CHOUHAN, COUNSEL FOR RESPONDENT NO.2).

WRIT APPEAL No. 97 of 2011

BETWEEN:-
SHUBHAM FOODS PVT. LTD. THROUGH ITS DIRECTOR
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 9/14/2023
2:28:19 PM
3
RAMESHCHAND GOYAL S/O GYANCHAND GOYAL, OFFICE AT
33/2 CHHOTI GWALTOLI, NEAR PATEL BRIDGE INDORE
(MADHYA PRADESH)

.....APPELLANT
(SHRI AJAY BAGADIA, LEARNED SENIOR ADVOCATE ASSISTED BY SHRI ANKIT
KESHARWANI COUNSEL FOR THE APPELLANT).

AND
1. M.P.PASHCHIM KSHETRA VIDYUT VITRAN CO.LTD.
THROUGH CHIEF ENGINEER POLOGROUND INDORE
(MADHYA PRADESH)

2. CHAIRMAN M.P.ELECTRICITY REGULATORY
COMMISSION URJA BHAWAN, SHIVAJI NAGAR (MADHYA
PRADESH)

.....RESPONDENTS
(SHRI PRASANNA PRASAD, COUNSEL FOR RESPONDENT NO.1)
(SHRI K.S.SINGH CHOUHAN, COUNSEL FOR RESPONDENT NO.2)

WRIT APPEAL No. 98 of 2011

BETWEEN:-
1. PREMIER NUTRITION AND ANR. 55/56, INDUSTIAL AREA
NO.1 AB ROAD DEWAS (MADHYA PRADESH)

2. RAJ KUMAR S/O LATE B.M. VIJAYI, AGED ABOUT 54
YEARS, OCCUPATION: SERVICE 107, CHETAK CENTRE, 12/2,
RNT MARG (MADHYA PRADESH)

.....APPELLANTS
(SHRI AJAY BAGADIA, LEARNED SENIOR ADVOCATE ASSISTED BY SHRI ANKIT
KESHARWANI COUNSEL FOR THE APPELLANTS).

AND
1. M.P.PASHCHIM KSHETRA VIDYUT VITRAN CO.LTD. AND
A N R . THR.CHIEF ENGINEER POLOGROUND INDORE
(MADHYA PRADESH)

2. CHAIRMAN M.P.ELECTRICITY REGULATORY
C O M M I S S I O N URJAN BHAWAN, SHIVAJI NAGAR
(MADHYA PRADESH)

.....RESPONDENTS
(SHRI ABHISHEK TUGNAWAT, COUNSEL FOR RESPONDENT NO.1).
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 9/14/2023
2:28:19 PM
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(SHRI K.S.CHOUHAN, COUNSEL FOR RESPONDENT NO.2)

T h i s appeal coming on for hearing this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
JUDGMENT

This judgment shall dispose of five writ appeals filed under Section 2(1) of the Madhya Pradesh Uchha Nyalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, being W.A.No. 69 of 2011, W.A.No. 94 of 2011, W.A.No. 95 of 2011, W.A.No. 97 of 2011 and W.A.No. 98 of 2011 , as the appellants have assailed the common order dated 02.12.2010 passed in W.P.No. 3355 of 2009 (Delight Dairy Ltd. & Anr. vs. M.P.Pashchim Kshetra Vidyut Vitaran Co. Ltd.) which also govern the W.P.No. 3307 of 2009, W.P.No. 3417 of 2009, W.P.No. 5989 of 2009 and W.P.No. 5554 of 2009.

2. For the sake of convenience, the facts being narrated in W.A.No. 95 of 2011 are being taken into consideration.

3. The brief facts of the case are that the appellant company is engaged in the business of processing milk for dairy products. An agreement was executed between appellant/company and respondent No.1 on 13.07.2007 and as per Clause 19 of the aforesaid agreement, the tariff HV 5.2 as notified by Madhya Pradesh Electricity Regulatory Commission (in short 'MPERC'), Bhopal vide order dated 31.03.2007 was applicable in the case of the appellant company. Similar tariff orders were issued from time to time for different financial years i.e. 2007-08, 2008-09 and there was no change in the tariff so far as the dairies were concerned. The appellant company have been depositing the bills as demanded from time to time. A clarification was issued on 08.04.2009 by respondent No.1 wherein it was observed that the units which are producing other dairy products shall be liable to pay electricity bills as per the tariff HV- 3.1 and only those units which are engaged in extraction of milk and its processing (such as chilling, pasteurization, etc.) shall be liable to pay tariff as per HV 5.2. As a Signature Not Verified Signed by: SREEVIDYA Signing time: 9/14/2023 2:28:19 PM

consequence, respondent no.1 issued a supplementary bill of Rs. 18,16,793/- was issued on 06.04.2009 with retrospective effect. Being aggrieved, the writ petition was filed.

4. Learned Single Judge, while disposing of the batch of writ petitions, passed the impugned order observing as under:

''Keeping in view the aforesaid judgment of the Apex Court, it is evidence that the commission is competent body to determine tariff and the tariff approved by the commission is final and binding, not only this the electricity Regulatory Commission is an expert body constituted with technically qualified persons, who could in addition take assistance from consultants, experts and professional persons. In the present case, keeping in view the observations made by the Apex Court in the aforesaid case, an expert body has framed retail supply tariff order 2008-09 and the same expert body, by virtue of powers conferred under Clause 1.27 of the tariff order, has clarified that in the case of the petitioner-company tariff HV 3.1 is applicable and therefore, this Court is of the considered opinion that the clarification issued by the expert body does not deserve to be substituted or warrant any interference in the peculiar facts and circumstances of the case and the respondent No.1 was justified in issuing electricity bills by applying tariff HV 3.1 in case of the petitioner-company.''

5. Learned Senior Counsel appearing for the appellants submitted that various grounds were raised before the learned Single Judge in the writ petitions, but those were not considered at all. Only on the basis that the MPERC is the competent body to determine tariff and the tariff approved by the commission is final and binding, therefore, the opinion i.e. clarification issued by the expert body does not deserved to be substituted or interfered with and dismissed the writ petitions. Learned Senior Counsel further stated that the learned Single Judge ought to have considered the fact that by way of executive instructions, no order can be passed revising the tariff with retrospective effect. Secondly, no opportunity of hearing was granted to the appellants before passing the order, hence, it violates the terms and conditions of the agreement. Such modification in the tariff creates a class within a class, which is not permissible and is completely arbitrary. This aspect was also not dealt by the learned Single Judge. The finding that the MPERC being an expert body, no interference can be made. Therefore, the order passed by the learned Single Judge deserves to be set aside and the matter needs to be remanded back to the learned Single Judge for de novo hearing by Signature Not Verified Signed by: SREEVIDYA Signing time: 9/14/2023 2:28:19 PM

considering all the grounds raised in the writ petitions.

6. Per contra, learned counsel appearing for the respondents vehemently opposed the prayer and submitted that there could not be a judicial review of the order passed by the MPERC. The Electricity Act, 2003 provides for filing of an appeal before the Appellate Tribunal under Section 111 of the Act, thereafter, an appeal before the Apex Court under Section 125 of the Act. Since, no appeal has been filed, the order has become absolute and final. On these grounds, no interference is called for in the order passed by the learned Single Judge and appeal deserves to be dismissed.

7. Heard the learned counsel for the parties.

8. On perusal of the writ petition as well as the order impugned, it is seen that the aforesaid grounds raised by the appellants have been very well taken in the writ petition. However, on perusal of the aforesaid order passed by the learned Single Judge, the petitions have been dismissed only on the ground that the MPERC is the competent body to determine the tariff and being an expert body, the opinion cannot be substituted or cannot be interfered with. On perusal of the order impugned, it further reveals that

there is no finding in respect of the retrospective applicability of the new tariff. Admittedly, tariff cannot be changed by way of executive instructions.

9. Accordingly, this Court finds that the matter deserves to be remanded back to the learned Single Judge for hearing afresh by dealing with each and every ground raised in the writ petitions and thereafter pass a reasoned and speaking order.

10. As a consequence, the order impugned dated 02.12.2010 passed in Writ Petition No. 3355/2009 as well as in W.P.No. 3307 of 2009, W.P.No. 3417 of 2009, W.P.No. 5989 of 2009 and W.P.No. 5554 of 2009 is hereby set aside. The matter is remanded back to the learned Single Judge for deciding afresh on merits.

11. Looking to the fact that the petitions are of the year 2009, learned Single Judge is requested to dwell upon the matter at the earliest. Signature Not Verified Signed by: SREEVIDYA Signing time: 9/14/2023 2:28:19 PM

12. Let a copy of this order be placed in the record of the connected writ appeals.

No order as to cost.

                          (S. A. DHARMADHIKARI)                                       (PRANAY VERMA)
                                   JUDGE                                                  JUDGE
                   vidya




Signature Not Verified
Signed by: SREEVIDYA
Signing time: 9/14/2023
2:28:19 PM