Allowed

M/S Sri Dauji Cold Storage Pvt. Ltd. and Another v. Dakshinanchal Vidyut Vitran Nigam Ltd. and Others

Allahabad HC13 Dec 2018WRIC/19592/2008

Case brief

AI extract

What is this about?

This writ petition challenged an order directing the petitioner to pay electricity arrears at three times the tariff rate following a tampered meter discovery. The High Court, relying on the Electricity Act 2003 and precedents, held the three-times rate inapplicable as the law mandated 1.5 times then, quashing the impugned order.

What did the court decide?

Quashed the order dated 29.3.2008 directing payment of three times tariff; allotted writ petition.

M/S Sri Dauji Cold Storage Pvt. Ltd. and Another Vs Dakshinanchal Vidyut Vitran Nigam Ltd. and Others — Allahabad HC (2018) — LawSathi Research

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Court No. - 39

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Case :- WRIT - C No. - 19592 of 2008

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Petitioner :- M/S Sri Dauji Cold Storage Pvt Ltd And Another Respondent :- Dakshinanchal Vidyut Vitran Nigam Ltd And Others Counsel for Petitioner :- Dinesh Rai,Mayank Agarwal,Seema Agrawal Counsel for Respondent :- H.P. Dube,R.K.Mishra,S.C.

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Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.

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Heard Sri Saroj Giri holding brief of Sri Mayank Agarwal, learned counsel for the petitioners and Sri R.K. Mishra, learned counsel for the respondents.

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The petitioners in the writ petition is seeking quashing of the order dated 29.3.2008 issued by the Executive Engineer, Dakshinanchal Vidyut Vitran Nigam Ltd., Mathura whereby he has directed the petitioners to pay the arrears of electricity dues at three times of the electricity rate amounting to Rs.7,33,245/-.

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The petitioner no. 2 is running a cold storage by the name 'M/S Sri Dauji Cold Storage Pvt Ltd', petitioner no. 1 herein, and has obtained a sanctioned load of 150 KVA from the erstwhile U.P. State Electricity Board. On 01.11.2004 there was a surprise checking done in the premises of the petitioners wherein it was found that the window seal of the meter was tampered. A provisional assessment order was issued to the petitioners on 28.09.2005. Aggrieved, the petitioner no. 2 approached the Civil Court by filing suit no. 1115 of 2005 and an interim injunction was also granted in his favour on 24.12.2005. In the meantime, he also filed his detailed objection to the provisional assessment order but he submits that he was informed by the department that if he withdrew the civil suit the provisional assessment proceedings would be dispensed with. Aggrieved, he filed an application on 04.04.2006 for withdrawing his civil suit which was accordingly dismissed as withdrawn. Thereafter, the petitioner no. 2 was served with a final assessment order date 22.4.2006 for an amount of Rs.7,43,217 which, according to him, has also been deposited with the department. It is stated that after about two years the impugned order has been issued informing him that the provisional assessment has been made at 1.5 times instead of 3 times and that now he was required to deposit final assessment charges at three times of the electricity rate.

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Contention of the learned counsel for the petitioners is that the petitioners have already undergone proceedings once and accepted the final assessment order made by the department on 22.4.2006 and in terms thereof, they have deposited a sum of Rs.7,43,217/- and therefore, they cannot be made to suffer twice for the same cause. His second submission is that in any case the rate of three times is not admissible inasmuch as on the date of surprise checking on 1.11.2004 charging of the electricity dues under Section 126(6) of the Electricity Act, 2003

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was 1.5 times which was subsequently amended vide amendment dated 15.6.2007 and enhanced to twice the normal charges. He, therefore, submits that in this view of the matter the impugned order dated 29.3.2008 is absolutely illegal and arbitrary. Reliance has been placed on a judgement of a learned single Judge of this Court dated 23.9.2005 passed in Civil Misc. Writ Petition No. 58317 of 2005 (Pankaj Kumar vs. Kanpur Electric Supply Company and others) wherein interpreting the provisions of Section 126(6) of the Electricity Act, 2003, learned single Judge has held that assessment ought to have been made on one and half times the tariff and not three times as per the U.P. Electricity Supply Code, 2002. Further reliance has been placed on a Division Bench judgement of this Court in Writ - C No. 60987 of 2005 (Vijay Pal Singh & Another vs. Dakshinanchal Vidyut Vitran Nigam Ltd & others) dated 29.3.2010 wherein the Division Bench referring to the provisions of the U.P. Electricity Supply Code, 2005 has held that the tariff prescribed is 1.5 times and not 3 times. Relevant extract of the judgement of the Division Bench reads as under :

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"From the perusal of the aforesaid provisions of the Act and the Code it is apparent that in the Act under Section 126(6) provided that assessment can only be done at the rate of 1.5 times of the tariff applicable, whereas the Code provided that in case of theft assessment at the rate of three times of the tariff applicable shall be made. Section 174 of the Act provided that Act shall have an overriding effect and the code which has been framed under the provisions of the Act being subordinate legislation can not travel beyond the scope of the provisions of the Act and is ultra-vires to the provisions of the Act. However, realizing their mistake the U.P. Electricity Regulatory Commission which has framed the U.P. Electricity Supply Code, 2005 made 3rd amendment to the Code on 14.9.2006 and clause 8.1(iv) was amended and clause 8.1(b)(iv) was inserted and it was provided that an assessment in cases of theft will be done at the rate of 1.5 times the tariff rate, thus, the provisions of the Code was made in consonance with the provisions of the Act and the illegality in framing the Code stood cured. It is also relevant to point out over here that the Electricity Act, 2003 was amended on 15.6.2007 by which Section 126(6) was amended and it was provided that the assessment will be done at the rate of 2 times of the tariff rate instead of 1.5 times the tariff rate as was being charged earlier. However, U.P. Electricity Regulatory Commission has not yet amended the clause 8.1(b)(iv) of the Code to bring it in consonance with the provisions of the amended Act and the Code still provides for assessment at the rate of 1.5 times the tariff rate. It is not necessary for us to go into the question as the what will be effect of not amendment to the Code in consonance with the provisions of the Act. Since the petitioner's case is covered by the preamended Act and he was liable to pay 1.5 times of the tariff applicable as checking in the case of the petitioner was carried on 4.5.2005 and at that date unamended clause 8.2(iv) of the Code was in existence, which provided for assessment at the rate of three times of the tariff rate. Since three times of the tariff rate provided by the code at that time was contrary to the provisions of Section 126(6) of the Act, therefore, interest of justice would be served if we direct the petitioner to pay 1.5 times of the tariff applicable instead of three times tariff applicable.

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In the result writ petition succeeds and is allowed. The impugned order dated 5.7.2005 Annexure-4 to the writ petition is quashed with the condition that the petitioner shall pay 1.5 times assessment tariff applicable on 4.5.2005 to the respondents and if the amount has already been paid by the petitioner, he shall not be required to pay it again.

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Office is directed to issue a certified copy of this order to the learned counsel for the parties on payment of usual charges within 24 hours. "

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Sri R.K.Mishra, learned counsel for the respondents could not dispute that the Electricity Act, 2003 at the relevant point of time i.e. 01.11.2004 which is the date of surprise inspection and checking, the tariff provided under Section 126(6) of the Electricity Act, 2003 was 1.5 times of the normal tariff and not 3 times. Learned counsel for the respondents also could not dispute the statutory provisions which have already been considered by the Division Bench of this Court in Vijay Pal Singh (Supra) .

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Therefore, considering the facts of the case and the law laid down, we quash the order dated 29.3.2008 issued by the Executive Engineer, Dakshinanchal Vidyut Vitran Nigam Ltd., Mathura.

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The writ petition is allowed.

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There shall be no order as to costs.

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Order Date :- 13.12.2018

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M/S Sri Dauji Cold Storage Pvt. Ltd. and Another v. Dakshinanchal Vidyut Vitran Nigam Ltd. and Others

Case brief

What is this about?

What did the court decide?

M/S Sri Dauji Cold Storage Pvt. Ltd. and Another v. Dakshinanchal Vidyut Vitran Nigam Ltd. and Others

Case brief

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What did the court decide?

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