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2018 Supreme(Jhk) 228
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SHREE CHANDRASHEKHAR, J.
M/s Gautam Ferro Alloys, a unit of M/s Bihar Foundry & Casting Ltd. through its Managing Director Dr. Hari Krishan Budhia, son of late R.K. Budhia - Petitioner
Versus
Damodar Valley Corporation, having its office at DVC Towers through its Chairman - Respondents
W.P.(C) No. 5664 of 2017
Decided On : 12-03-2018
For the Petitioner:Mr. Nitin Kumar Pasari, Advocate Mr. Sudhir Kumar Singh, Advocate Mrs. Ranjana Mukherjee, Advocate
For the Respondent:Mr. Srijit Choudhury, Advocate Miss Srija Choudhury, Advocate Miss Neha, Advocate
The central legal point established in the judgment is the interpretation and application of Clause4 of the bilateral agreement in the context of Force Majeure, statutory authority's actions, and the petitioner's entitlement to remission and interest on excess payment.
Headnote:
Force Majeure - Electricity Agreement - Clause4 - [Air (Prevention and Control of Pollution) Act, 1981, Electricity Act, 2003, Electricity Supply Code Regulations, 2005] - The court discussed the applicability of Clause4 of the bilateral agreement in the context of the closure of the petitioner's factory premises due to an order from the statutory authority. It highlighted the key legal provisions of Clause4, its interpretation, and its influence on the court's decision to quash the impugned order and hold the petitioner not liable for the Demand Charge and the Guaranteed Energy Charge for the specified period.
Fact of the Case:
The petitioner, engaged in manufacturing, challenged the respondent's order denying remission of charges under the bilateral agreement due to the closure of its factory premises by a statutory authority. The court found that the closure period became a bone of contention, leading to a series of litigations. The petitioner's claim for remission was rejected, leading to further legal proceedings.
Finding of the Court:
The court analyzed the applicability of Clause4 of the bilateral agreement in light of the closure of the petitioner's factory premises and the statutory provisions. It found that the petitioner was not liable for the Demand Charge and the Guaranteed Energy Charge for the specified period, and the impugned order was quashed. The court also held that the petitioner was entitled to interest on the excess payment made for the charges.
Issues: The issues revolved around the applicability of Clause4 of the bilateral agreement, the closure of the factory premises, the statutory authority's actions, and the petitioner's entitlement to remission and interest on excess payment.
Ratio Decidendi: The court's decision was based on the interpretation of Clause4 of the bilateral agreement, the statutory provisions, and the events leading to the closure of the petitioner's factory premises. It emphasized that the petitioner was prevented from using the electrical supply at its unit due to the closure, and the delay in communication did not render Clause4 inapplicable.
Final Decision: The court quashed the impugned order and held the petitioner not liable for the Demand Charge and the Guaranteed Energy Charge for the specified period. It also ruled that the petitioner was entitled to interest on the excess payment made for the charges.
1. Challenge by the petitioner is to the order dated 27.12.2016 by which the respondent authority has held that the petitioner-company is not entitled to remission of the Demand Charge and the Guaranteed Energy Charge under Clause4 of the bilateral agreement, for the period between 03.09.2005 to 27.10.2005.
2. This case has a chequered history of litigation. The petitioner M/s Gautam Ferro Alloys, a unit of M/s Bihar Foundry and Casting Ltd., is engaged in manufacture of Silico Manganese and Ferro Alloys. It was granted electric connection for a contract demand of 3000 KVA for which a bilateral agreement was entered between the parties on 25.02.2003. On the allegation of violation of certain statutory provisions, the Jharkhand State Pollution Control Board (JSPCB) vide its order dated 20.12.2004 directed closure of the petitioner's unit, and on 03.09.2005 its factory premises was sealed by JSPCB. The petitioner came to this Court in W.P.(C) No.5033 of 2005 challenging the impugned action of the respondent-JSPCB and by an interim order dated 25.10.2005 the Pollution Control Board was directed to remove its seal from the factory premises of the petitioner-company within three days, and in compliance of the said order JSPCB removed its seal on 27.10.2005. Now, this period between 03.09.2005 to 27.10.2005 became a bone of contention, igniting series of litigation between the parties.
3. Raising a grievance against the Energy Bill issued in the month of October, 2005, the petitioner came to this Court in W.P.(C) No.5870 of 2009. Specific plea raised by the petitioner was that on account of circumstances beyond its control which would attract the Force Majeure clause as incorporated under Clause4 to the bilateral agreement dated 25.02.2003 it is not liable to pay the Demand Charge and the Guaranteed Energy Charge to the respondent-DVC. The petitioner by that time had succeeded before the revisional authority. The Member, Board of Revenue, Jharkhand by an order dated 05.12.2006 quashed the order passed by the Chairman, Jharkhand State Pollution Control Board holding that the Pollution Control Board had issued the impugned order in breach of the 2nd proviso to Section 21(4) of the Air (Prevention and Control of Pollution) Act, 1981. This order by the Board of Revenue was one of the defences raised by the petitioner before this Court in W.P.(C) No.5870 of 2009. This Court accepting the contention raised on behalf of the petitioner, that the issue of Force Majeure has been decided by the order of Board of Revenue, Jharkhand, by an order dated 29.03.2011 remanded the matter to the respondent-Damodar Valley Corporation to decide the claim of the petitioner regarding adjustment of the Energy Bill for the period between 03.09.2005 to 27.10.2005 visavis Clause4 of the bilateral agreement. This order of the writ Court was taken in appeal by the Damodar Valley Corporation in LPA No.283 of 2011. The Letters Patent Appeal was confined only to the finding recorded by the writ Court in its order dated 29.03.2011 by which the learned Single Judge has held that the question of closure of petitioner's unit on account of Force Majeure has already been decided by the Member, Board of Revenue. This part of the writ Court's order was interfered by the Letters Patent Court and LPA No.283 of 2011 stood disposed of by an order dated 12.03.2012, in the above term. Thereafter, claim of the petitioner, on remand, was rejected by the Deputy Chief Engineer (Commercial) by a cryptic order dated 18.03.2013. By simply observing that the petitioner-M/s Gautam Ferro Alloys has not been able to establish its claim as per the law, its claim was rejected. Aggrieved, the petitioner came to this Court in W.P(C) No.2408 of 2013. The writ petition stood allowed by an order dated 10.09.2015 by which the impugned order dated 18.03.2003 was quashed by the writ Court and the matter was remanded back to the Deputy Chief Engineer (Commercial) to pass a fresh order. Impugn
