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IN THE HIGH COURT OF ALLAHABAD
Vineet Saran, Sudhir Agarwal, JJ.
Maa Vind Vasini Industries - Appellant
Versus
Purvanchal Vidut Vitran Nigam Ltd. - Respondent
Decided On : 12-12-2007
ELECTRICITY ACT, 2003 - TARIFF - SUBSIDY - POWER LOOM CONSUMERS - HV-2 CATEGORY - U.P. ELECTRICITY REFORMS ACT, 1999 - U.P.P.C.L. - DISCOMS - U.P.E.R.C. - STATE GOVERNMENT - POLICY DECISION - DIRECTIONS - JURISDICTION - WRIT PETITION - QUASHING OF ORDERS - COST. - The U.P. Electricity Reforms Act, 1999 and the Electricity Act, 2003 are operative in the State of U.P. - The power to determine tariff has been provided u/s 62 of Act, 2003 and the provision for subsidy by the State Government has been made u/s 65 of Act, 2003. - The State Government has power to issue directions in policy matters u/s 108 of Act, 2003. - In the matter of framing of tariff and realisation of charges from the consumers, the final authority lay with UPERC and neither any supplier nor the State Government nor anyone else has any jurisdiction or authority to make any alteration, modification etc. in the aforesaid matter. - The State Government's order dated 14.06.2006 by itself, cannot be said to be a direction u/s 108 of Act, 2003 inasmuch as the aforesaid order is not addressed to the UPERC and on the contrary it is addressed to UPPCL. - The direction was issued by the State Government straightway to UPPCL to charge particular category of consumers which can not be said to be a direction u/s 108 of Act, 2003 issued to UPERC. - The orders dated 24.02.2007 and 05.05.2007 issued by the Chief Engineer (Commercial) U.P. Power Corporation Ltd., Lucknow and the Executive Engineer, Electricity Distribution Division-11, Purvanchal Vidyut Vitran Nigam Ltd. Mohaddipur. Gorakhpur respectively are hereby quashed. - The respondents are directed to charge petitioners in accordance with order dated 11.07.2006 issued by UPERC after issuing a revised demand, if necessary. - The petitioners shall be entitled for cost which is quantified to Rs. 20,000/- payable by the respondent No. 3.
Fact of the Case:
The petitioners, M/s Maa Vind Vasini Industries and another have filed this writ petition under Article 226 of the Constitution of India, aggrieved by the demand notice issued for the month of May, 2007 and also the letters dated 24.02.2007 and 05.05.2007 issued by the Chief Engineer (Commercial) U.P. Power Corporation Ltd., Lucknow and the Executive Engineer, Electricity Distribution Division-II. Purvanchal Vidyut Vitran Nigarh Ltd. Mohaddipur, Gorakhpur respectively and have sought a writ of certiorari for quashing the same. They have also sought a writ of mandamus commanding respondents to extend benefit of Government Order dated 14.06.2006 to the petitioners and not to disconnect electricity supply of the petitioners pursuant to the impugned demand notice.
Finding of the Court:
The State Government's order dated 14.06.2006 by itself, cannot be said to be a direction u/s 108 of Act, 2003 inasmuch as the aforesaid order is not addressed to the UPERC and on the contrary it is addressed to UPPCL. - The direction was issued by the State Government straightway to UPPCL to charge particular category of consumers which can not be said to be a direction u/s 108 of Act, 2003 issued to UPERC.
Issues: 1. Whether in the matter of framing of tariff and realisation of charges from the consumers the order of UPERC is final and binding or it can be altered, modified or changed by the Suppliers or the State Government. 2. Whether a decision of the State Government in respect to policy is ipso facto binding and enforceable by an electricity supplier in the State of U.P. or it can be enforced only in such manner as considered and applied by UPERC. 3. Whether the UPPCL or respondent No. 1 or any other electricity supply company working in the State of U.P. is justified in acting and implementing the order of the State Government directly as if it is suo moto binding and enforceable by them. 4. Whether the Chief Engineer (Commercial) UPPCL can issue an order directly to respondent No. 1 to act and function in a particular manner. 5. Whether the orders dated 24.02.2007 and 05.05.2007 having been issued pursuant to the letters of the State Government, are valid.
Ratio Decidendi: In the matter of framing of tariff and realisation of charges from the consumers, the final authority lay with UPERC and neither any supplier nor the State Government nor anyone else has any jurisdiction or authority to make any alteration, modification etc. in the aforesaid matter.
Final Decision: The orders dated 24.02.2007 and 05.05.2007 issued by the Chief Engineer (Commercial) U.P. Power Corporation Ltd., Lucknow and the Executive Engineer, Electricity Distribution Division-11, Purvanchal Vidyut Vitran Nigam Ltd. Mohaddipur. Gorakhpur respectively are hereby quashed. - The respondents are directed to charge petitioners in accordance with order dated 11.07.2006 issued by UPERC after issuing a revised demand, if necessary. - The petitioners shall be entitled for cost which is quantified to Rs. 20,000/- payable by the respondent No. 3.
Sudhir Agarwal, J.
Heard Sri U.N. Sharma, Senior Advocate assisted by Sri May auk Agrawal and Sri Krishna Agrawal, Advocates for the petitioners, Sri H.P. Dube, Advocate for respondents No. 1 to 3 and learned Standing Counsel for respondent No. 4.
2. Since the counter and rejoinder affidavits have already been exchanged, as requested by learned Counsel for the parties, this writ petition has been heard and is being decided finally at the admission stage under the Rides of the Court.
3. The petitioners, M/s Maa Vind Vasini Industries and another have filed this writ petition under Article 226 of the Constitution of India, aggrieved by the demand notice issued for the month of May, 2007 and also the letters dated 24.02.2007 and 05.05.2007 issued by the Chief Engineer (Commercial) U.P. Power Corporation Ltd., Lucknow and the Executive Engineer, Electricity Distribution Division-II. Purvanchal Vidyut Vitran Nigarh Ltd. Mohaddipur, Gorakhpur respectively and have sought a writ of certiorari for quashing the same. They have also sought a writ of mandamus commanding respondents to extend benefit of Government Order dated 14.06.2006 to the petitioners and not to disconnect electricity supply of the petitioners pursuant to the impugned demand notice.
4. The facts in brief, giving rise to the present dispute are that the petitioner is an industry, having installed a number of power looms, situated in urban area i.e. Industrial Area, Gorakhpur. For running its industrial unit, it applied for electric connection with the contracted load of 102 Horse Power (in short "HP"). The electric connection was released on 03.08.2004. The rates of electricity are payable by the consumers in the State of U.P. in accordance with the rate schedule/tariff of the supplier of electricity in the area concerned approved by U.P. Electricity Regulatory Commission (hereinafter referred to as the "UPERC"). The UPERC approved a tariff applicable to U.P. Power Corporation Limited (hereinafter after referred to as the "UPPCL"), Paschimanchal Vidyut Vitran Nigam Limited (Meerut Discom)(in short "PWNL"), Madhyanchal Vidyut Vitran Nigam Limited (Lucknow Discom)(in short MVVNL), Dakshinanchal Vidyut Vitran Nigam Limited (Agra Discom)(in short "DVVNL") and Purvanchal Vidyut Vitran Nigam Limited (Varanasi Discom)(in short the "Supplier") by its order dated 10.11.2004. It classified various consumers of electricity in the following categories:
1. LMV-1 -- Domestic light, fan and power
2. LMV-2 -- Non-domestic light, fan and power
3. LMV-3 -- Public lamps
4. LMV-4 -- Light, fan and power for public institutions and private institutions
5. LMV-5 -- Small power for private tube-wells/pumping sets for irrigation purposes
6. LMV-6 -- Small and medium power having connected load up to 100 HP for industrial/processing or agro-industrial purposes, power loom, etc
7. LMV-7 -- Public Water Works
8. LMV-8 -- State Tube-Wells/Panchayati tube-wells and pump canals
9. LMV-9 -- Temporary supply
10. LMV-10 -- Departmental employees and pensioners
11. HV-2 -- Large and Heavy Power for industrial and other purposes having contracted load of above 100 HP
12. HV-3 -- Railway traction
13. HV-4 -- Lift irrigation works having load of more than 100 HP
5. Amongst the aforementioned categories, in the present case we are concerned only with three categories namely, LMV-2, LMV-6 and HV- 2.
6. The petitioners having contracted load of more than 100 HP are covered by tariff HV-2. The State Government, sought to provide some concessional rates for power loom consumers and sent a letter dated 14.06.2006 (Annexure-1 to the writ petition) to UPPCL directing it to apply flat rate tariff to power loom consumers during financial year 2006-07 giving effect from 01.04.2006. Copy of the said letter was endorsed to UPERC and various Discoms mentioned above. Since the aforesaid letter of the government has the effect of altering rate schedule approved by UPERG, as soon as it came to know of the aforesaid letter, it issu
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