IMPORTANT POINT
The MoU for special tariff, approved by the MSERC, required mutual consent and MSERC approval for any amendment or modification. The unilateral revocation of the MoU by the respondent was held to be illegal.

JUDGMENT

1. This batch of writ petitions being similar and on the same cause of action are being disposed of by this common judgment and order.

2. That all the writ petitioners in these matters are members of the Byrnihat Industries Association (BIA) engaged in the manufacture of goods and are consumers of electricity under the respondents.

3. These said industries under the banner of the Byrnihat Industries Association (BIA), entered into a Memorandum of Understanding on 07.10.2020, with the respondent Corporation for levy of special tariff for the industries and upon execution of the said MoU, the respondent No. 2 filed an application before the Meghalaya State Electricity Regulatory Commission (MSERC) for Special Interim Tariff proposal/offer for HT/EHT industrial consumers. This application was registered as MSERC Case No. 10 of 2020, and the MSERC vide order dated 19.10.2020, approved the special tariff for an initial period of 3 years as per the MoU between the BIA and the respondents. Agreements thereafter were entered into individually by the writ petitioners herein, with the respondents in terms of the order dated 19.10.2020, passed by the MSERC as per the special tariff on 01.11.2020.

4. It appears that thereafter, vide letter dated 26.10.2021, the respondent No. 3, issued a notice for termination of the MoU dated 07.10.2020, by invoking Clause 17 of the MoU, on the allegation that the petitioners had failed to maintain the minimum average load factor of 68%. It was further stated in the notice that the said MoU would stand void and invalid after a lapse of 90 days from the date of issuance of the notice. To this notice the BIA had made a reply and prayed for recall for withdrawal of the notice dated 26.10.2021. However, by the impugned letter dated 17.01.2022, the respondents were informed that pursuant to the termination notice dated 26.10.2021, the agreement for supply of power under the special tariff would come to an end on 25.01.2022. It was also indicated in the impugned letter/notice that if the petitioners desired to avail power from the respondents, the same would be as per the regular/normal tariff applicable to such consumers as determined by the MSERC vide order dated 25.03.2021. It was also further given therein that non-compliance to the impugned notice, would lead to disconnection of electricity supply w.e.f. 26.01.2022. The writ petitioners being aggrieved are therefore before this Court by way of these writ petitions assailing the impugned notice dated 17.01.2022.

5. The main contentions of the petitioners are, first that the impugned notice dated 17.01.2022, had been issued by the respondents inspite of the fact that individual agreements with the writ petitioners are still subsisting and had not been determined by the respondents till date, or any action taken upon them, and that the determination of the MoU would not automatically annul these agreements. Secondly, that the respondents after signing the MoU had themselves approached the MSERC for approval of the special tariff, which was allowed vide order dated 19.10.2020 and as such, therefore, the MoU between the parties stood merged with the judicial order passed by MSERC, and for withdrawal from the said MoU, the same cannot be executed unilaterally without reference to the MSERC. Thirdly, it was contended that under the Electricity Act 2003, it is only the concerned Electricity Regulatory Commission which can fix tariff for supply of electricity by a Distribution Licensee, and as the revised special tariff as per the MoU, for a period of 3 years, having been allowed by the MSERC, unilateral determination of the tariff by the respondents is not permissible in law.

6. Mr. K. Paul, learned senior counsel for the petitioners submits that the unilateral revocation of the MoU is unsustainable, inasmuch as, the MoU is not the sole basis for determination of the tariff. He refers to the order dated 19.10.2020, more specifically Para-21 thereof, which he s