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2024 Supreme(Bom) 272
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
JITENDRA JAIN, A.S. CHANDURKAR, JJ.
City Center Mall Private Limited and Anr. - Petitioners
Versus
The State of Maharashtra, Through the Principal Secretary and Ors. - Respondents
Writ Petition No. 11888 Of 2023
Decided On : 22-02-2024
For the Petitioners: Shri Sharan Jagtiani a/w Shri Sumeet Nankani a/w Shri Vishal Kanade a/w Shri Ishwar Nankani a/w Shri Huzefa Khokhawala & Shri kunal Naik i/b M/s Nankani & Associates.
For the Respondents: Shri Kiran Gandhi a/w Shri Aakash Kothari i/b Little & Co., Shri N.C. Walimbe, Addl. G.P. a/w Shri A.R. Metkari, AGP.
IMPORTANT POINT
The main legal point established in the judgment is that the availability of an alternative remedy under a statute does not by itself operate as a bar for the court to entertain a writ petition under Article 226 of the Constitution of India, but the court may exercise its extraordinary jurisdiction with circumspection in exceptional cases, particularly where cases involve a pure question of law or if the vires of the Act is challenged.
Headnote:
Electricity - Distribution Franchisee - Indian Electricity Act, 2003, Section 126(2) - Commercial Circular No.219 dated 28/02/2014 - MERC guidelines - The court examined the legality of the provisional and final assessment made under Section 126(2) and (3) of the Indian Electricity Act, 2003, and the applicability of the Commercial Circular No.219 dated 28/02/2014 and MERC guidelines. The court found that the final assessment was made following due procedure and did not find any exceptional case to exercise writ jurisdiction.
Fact of the Case:
The petitioner, a company operating a shopping complex and mall, challenged the final assessment made by the Maharashtra State Electricity Distribution Company Limited (MSEDCL) under Section 126(3) of the Indian Electricity Act, 2003, claiming that the provisional assessment and final assessment were unjustified due to pending application for Distribution Franchisee and excessive charges.
Finding of the Court:
The court found that the final assessment was made following due procedure and did not find any exceptional case to exercise writ jurisdiction. It directed the petitioner to invoke the statutory remedy provided under Section 127(2) of the Act.
Issues: The issues involved the legality of the provisional and final assessment under Section 126(2) and (3) of the Indian Electricity Act, 2003, and the applicability of the Commercial Circular No.219 dated 28/02/2014 and MERC guidelines.
Ratio Decidendi: The court held that the final assessment was made following due procedure and did not find any exceptional case to exercise writ jurisdiction. It directed the petitioner to invoke the statutory remedy provided under Section 127(2) of the Act.
Final Decision: The court disposed of the writ petition as not entertained, granting the petitioner four weeks to invoke the statutory remedy provided under Section 127 of the Act.
JUDGMENT :
(A.S. Chandurkar, J.) :
1. Rule. Rule made returnable forthwith and heard the learned Counsel for the parties.
2. The Petitioner No.1 is a Company incorporated under the Companies Act, 1956 and is operating a Shopping Complex and Mall known as “City Centre Mall”. It is the case of the Company that the Maharashtra State Electricity Distribution Company Limited (“MSEDCL”) supplies electricity to the Mall through single point at the meter that stands in the name of the Company. The Company provides electricity to various licensees of the said Mall and the said licensees pay electricity charges as per their usage. No extra charge or premium is claimed by the Company. By an order dated 24/05/2010 passed by the Maharashtra Electricity Regulatory Commission, the requirements and guidelines as regards the manner in which a Distribution Franchisee can be obtained had been laid down. Pursuant thereto, the Company made an application for Distribution Franchisee through the MOU route. On various documents being sought by MSEDCL, the Company claims to have supplied the same after which its application has been pending. On 20/07/2023, spot inspection of the Mall was undertaken by the officers of MSEDCL. It was noted that the Company had installed 1115 KW Solar Unit and 218 sub-meters at various individual shops. Based on the aforesaid, the Additional Executive Engineer made a query with the Company seeking further documents. The Company submitted its reply on 27/07/2023. Further documents were sought by the Superintending Engineer after which on 07/08/2023, an order of provisional assessment under Section 126(2) of the Indian Electricity Act, 2003 (for short “the Act of 2003”) came to be passed by the Assessing Officer. By applying HT-II tariff in commercial category for the period from 16/10/2020, provisional assessment to the tune of Rs 22,91,08,410/-came to be served on the Company. On 17/08/2023, the Company raised an objection to the same and sought time of fifteen days to submit its objection.
3. The Assessing Officer informed the Company through its concerned representative to remain present for personal hearing on 29/08/2023 at 11.30 hours. On the said date, a detailed objection was raised by the Company. Pursuant thereto, on 06/09/2023, an order of final assessment under Section 126(3) of the Act of 2003 came to be served on the Company. It was stated that since no valid document to indicate grant of any permission as distribution franchisee was submitted there was unauthorized use of electricity within the meaning of Section 126 of the Act of 2003. The provisional demand as made was upheld and the final bill for the same amount came to be issued. Being aggrieved by the order of final assessment, the Company has challenged the same in the present Writ Petition.
4. Shri Sharan Jagtiani, the learned Senior Advocate for the Company submitted that MSEDCL was not justified in making provisional assessment under Section 126(2) of the Act of 2003 followed by a final assessment under Section 126(3) of the Act of 2003. Since the Company’s application for grant of Distribution Franchisee made on 20/02/2013 was pending consideration by MSEDCL, there was no basis whatsoever for seeking to pass an order of assessment. Referring to Commercial Circular No.219 dated 28/02/2014 under which guidelines for converting single point supply consumers to Distribution Franchisee through MOU Route had been issued, it was submitted that it was only in case of those consumers who had not applied for Distribution Franchisee who were liable for action under Section 126 of the Act of 2003. Since the Company’s application in that regard was pending, there was no occasion to invoke the Circular dated 28/02/2014 and undertake such assessment. Reference was made to the communications dated 26/09/2017 and 29/12/2017 addressed by the Company through its authorized signatory to the MSEDCL. Having failed to consider the Company’s request, it was not permissible
