Corp.Ltd.& Ors. Vs. M/S Amausi Textile Mills Ltd.& Ors.  INSC 378
(7 May 2010)
APPELLATE JURISDICTION CIVIL APPEAL NOS.4342-4343 OF 2010 (Arising out of
S.L.P. (C) Nos.8079-8080 of 2009) U.P. Power Corporation Limited and others
.......Appellants Versus M/s Amausi Textile Mills Limited and another
appeals are directed against orders dated 5.12.2008 passed by the Division
Bench of Allahabad High Court in Writ Petition No.6744 (M/B) of 2008 whereby it
accepted report dated 17.10.2008 submitted by Justice K.S. Rakhra (Retired),
quashed orders dated 1.3.2008 and 26.3.2008 passed by the Consumer Grievance
Redressal Forum, Lucknow Electricity Administration, Madhyanchal Vidyut Vitaran
Nigam Limited (for short, "the Consumer Forum") and the Electricity
Ombudsman respectively and 2 directed appellant No.1 - U.P. Power Corporation
Limited to pay Rs.1,69,261/- to the writ petitioner (respondent No.1 herein).
Respondent No.1 is running a spinning mill and is a consumer of electricity
supplied by appellant No.1. In 1994, a notice was issued to respondent No.1 to
pay the dues of electricity amounting to Rs.19,15,929.20.
paying a sum of Rs.3,02,668/-, respondent No.1 filed Writ Petition No.3503
(M/B) of 1994 with the grievance that the demand was highly inflated and the
representation made against the same has not been decided.
order dated 9.9.1994, the Division Bench of the High Court directed the
Secretary of the Cooperative Electric Society Limited, Lucknow to decide the
representation of respondent No.1. The concerned authority passed order dated
2.2.1995 and held that as on 31.12.1994, a sum of Rs.22,35,515.19 was payable
by respondent No.1 towards the dues of electricity. However, instead of
complying with order dated 2.2.1995 and with a view to avoid payment of the
outstanding dues, respondent No.1 filed successive writ petitions and
instituted other proceedings, the details of which are as under:
Respondent No.1 filed Writ Petition No.2619 (M/B) of 2002 with the complaint
that even though the appeal filed by it against the demand created by appellant
No.1 was pending, the concerned authorities were taking coercive action for
recovery of the so-called 3 dues. The same was disposed of by the High Court on
15.5.2002 by taking cognizance of the statement made by the counsel appearing
on behalf of appellant No.1 that General Manager, Lucknow Electricity Supply
Authority (for short, "LESA") will decide the appeal of respondent
No.1 within one month. Simultaneously, the High Court directed that further
action in respect of the property, which had already been attached shall be
taken only after decision of the appeal.
General Manager, LESA dismissed the appeal filed by respondent No.1 and held
that the demand created by appellant No.1 was neither arbitrary nor excessive.
The appellate order was challenged by respondent No.1 in Writ Petition No.2907
(M/B) of 2002 on the ground that the appeal has been decided without complying
with the rule of audi alteram partem. By an order dated 24.5.2002, the High
Court directed the competent authority to decide the appeal afresh after giving
opportunity of personal hearing to respondent No.1 and restrained the
appellants from taking coercive action for recovery of the outstanding dues.
Soon after disposal of the second writ petition, respondent No.1 filed another
writ petition bearing No.3735 (M/B) of 2002 alleging therein that its
representative had not been heard by the concerned 4 authority. That petition
was disposed of by the High Court vide order dated 5.7.2002, the relevant
portions of which are extracted below:
entering into the factual position as alleged in the writ petition with all
fairness, we fix 10th July, 2002 to enable the petitioner to appear before
opposite party No.4 i.e. Chief General Manager, LESA, Lucknow who shall after
hearing the petitioner shall decide the matter in accordance with law on that
date. It is clarified that no further adjournment will be granted in the matter
by the respondents.
final decision is taken, no coercive method will be used against the
compliance of the court's directive, General Manager, LESA heard the
representative of respondent No.1 and passed detailed order dated 10.7.2002,
paragraphs 2 to 6 whereof are reproduced below:
The applicant M/s. Amausi Textile Mills Ltd., in his letter dt. 16.11.80
(Annexure 4) has applied for supply of electricity billing for his Industry in
continuous process. Accordingly billing from time to time is being sent to the
applicant for the electricity consumption on continuous process as per existing
tariff regarding which payment was also made by the applicant.
regard to concession demanded by the applicant in respect of block closer it is
submitted that in respect of Industry under Power cut two following types of to
alternatives were available under continuous process:- (a) If the average
demand of the Electricity by way of operating under power cut from the month of
July, 71 to June, 72 to the tune of 50%.
the condition of block closer is adhered to.
applicant instead of choosing the option of block closer (b), had chosen the
option of curtailing the demand under the restricted under option (a) according
to which he was getting concession admissible from time to time. Thus, the
contention of the applicant that it is entitled to get concession under block
closer and same should be given to him, is not proper because the applicant has
not chosen said option. Therefore, the concession admissible under this option
is not admissible to the applicant.
real description or detail has been provided by the defendant to the applicant
amounting to Rs.53,72,006.87 during the course of hearing regarding which the
receipt was also admitted by the applicant.
5. It has
become evident that for realizing the dismantling charges of the established
line and equipment, a charge of Rs.1,36,915.00 towards labour, loading and
supervision charges has been levied in accordance with the provisions for
dismantling the electricity lines. So far as question of removing the
electricity line and equipments physically, the said amount will remain
unaffected because in the aforesaid amount the costs of electricity lines and
equipments are not included.
6. By the
applicant it has been prayed that the charge of surcharge mention in notice of
electricity dues should be waived. In this regard this is mentioned that the
defendant no.2 - Executive Engineer, Electricity Distribution Division - (CESS)
Zone, LESA, Lucknow and notice for realizing the amount of Rs.53,72,006.87
which includes the amount of surcharge but it is evident that no surcharge has
been levied further on the amount of surcharge. This factum is also fully
evident from perusal of chart submitted by the defendant no.2 with respect to
6 (v) As
a sequel to dismissal of the appeal preferred by respondent No.1, the
prescribed authority i.e. the Executive Engineer issued recovery certificate
dated 4.10.2002 and requested the Collector (District Magistrate) to recover
Rs.53,71,988.87 as arrears of land revenue.
Respondent No.1 questioned the legality of recovery certificate in Writ
Petition No.6121 (M/B) of 2002, which was disposed of by the High Court on
7.10.2002. The Division Bench of the High Court noted that respondent No.1 had
already filed an application under Section 11 of the Arbitration and
Conciliation Act, 1996 (for short, "the 1996 Act") for appointment of
an arbitrator and another application under Section 9 of that Act and stayed
the recovery subject to the condition of deposit of half of the amount
specified in the recovery certificate.
Respondent No.1 did not comply the direction given by the High Court and filed
an application before U.P. Electricity Regulatory Commission, Lucknow (for
short, "the Commission") for appointment of an arbitrator in terms of
Clause 18 of the Agreement of Supply.
Commission dismissed the application by observing that matter 7 relating to
appointment of an arbitrator is pending before District Judge, Lucknow.
When the application filed by respondent No.1 under Section 9 of the 1996 Act
was taken up for hearing, no one appeared on its behalf. Therefore, by an order
dated 26.3.2004, District Judge, Lucknow dismissed the same for
non-prosecution. The restoration application filed by respondent No.1 was also
dismissed for non- prosecution.
the interregnum, appellant No.1 floated One Time Settlement scheme (OTS), which
envisaged waiver of late payment surcharge to the extent of 100 per cent
subject to the condition of deposit of the amount due. Respondent No.1 opted
for OTS but did not pay the outstanding dues except one installment of Rs.9
lacs and on that account, it could not get the benefit of clause relating to
waiver of late payment surcharge.
deducting the amount of Rs.9 lacs deposited by respondent No.1, the prescribed
authority issued revised recovery certificate dated 6.9.2007 and forwarded the
same to the Collector (District Magistrate).
Respondent No.1 challenged the revised recovery certificate in Writ Petition
No.78 (M/B) of 2008 and tried to hoodwink the High Court by withholding the
material facts and documents including order dated 10.7.2002 passed by General
Manager, LESA. When counsel appearing for respondent No.1 found that the High
Court is likely to dismiss the writ petition on the ground that his client had
not come with clean hands, he made a prayer that the writ petition may be
dismissed as not pressed. The High Court accepted his request and dismissed the
writ petition as not pressed but after recording detailed order dated
17.1.2008, the relevant portions of which are reproduced below:
petitioner who had a spinning mill fell in electricity dues amounting to
Rs.19,15,929.29. In 1994 when the notice was issued for electricity dues he
preferred a writ petition No.3503 (M/B) of 1994 before this Court and the writ
petition was disposed of on 9.9.1994 directing the respondents to decide the
representation of the petitioner expeditiously and preferably within a period
of six months, a copy of which has been annexed as Annexure-1 to the short
counter affidavit. In pursuance of the judgment and order dated 9.9.1994 the
competent authority decided the controversy and communicated that
Rs.15,19,515.19 in due against the petitioner, vide letter dated 02.02.1985.
petitioner failed to pay the amount to satisfy the dues, the recovery
proceedings were initiated. Feeling aggrieved by the recovery proceedings, the
petitioner filed a second Writ Petition No.2619 (MB) of 2002. The said writ
petition was decided by the judgment and order dated 15.5.2002 directing the
respondents to take further action on the property attached only after the
decision in the appeal by the competent authority, a copy of the order dated 15.5.2002
has been annexed as Annexure 2 to the 9 short counter affidavit. When the
controversy was decided again by the competent authority in appeal, the
petitioner filed the third writ petition No.2907 (MB) of 2002 on the ground
that no opportunity of hearing was afforded to the petitioner in appeal. Hence
this court interfering in the writ petition passed the judgment and order dated
24.05.2002 directing the respondent to provide opportunity of hearing to the
petitioner, a copy of which has been annexed as Annexure 3 to the writ
petition. In pursuance of the judgment and order dated 24.5.2002 passed by this
court the controversy was adjudicated afresh by the competent authority vide
order dated 05.07.2002 calling the petitioner before the General Manager, LESA
and providing opportunity of hearing to the petitioner. The General Manager,
LESA decided the controversy in pursuance of the judgment and order dated
24.05.2002 (supra) of this Court afresh after giving full opportunity of
hearing to the petitioner by order dated 10.07.2002 a copy of which has been
annexed as Annexure No.5 to the writ petition. The order dated 10.07.2002 was
never challenged by the petitioner and the same attained finality. However, the
petitioner's counsel submits that the consequential citation of recovery of
dues in pursuance of the order dated 10.07.2002 was challenged in this Court
and the writ petition was dismissed.
of making payment of dues in pursuance of the order dated 10.07.2002 even after
dismissal of the writ petition, the petitioner filed another Writ Petition
No.6121 (MB) of 2002 against the recovery which comes to Rs.53,72,006.87. The
writ petition was disposed of vide order dated 07.10.2002 directing the
petitioner to pay half of the amount to respondent No.2 within three weeks and
rest of the amount in installments, a copy of the judgment and order dated
07.10.2002 has been annexed as Annexure No.6 to the writ petition. Thereafter
again the controversy relating to One Time Settlement was adjudicated by the competent
authority vide order dated 31.10.2003. While approaching this Court, the
petitioner did not disclose any of these facts.
this stage, learned counsel for the petitioner submitted that the petition may
be dismissed as not pressed. It is accordingly dismissed being not
supplied) (xii) Having successfully avoided the consequence of filing a writ
petition by suppressing the material facts and withholding the relevant
documents, respondent No.1 filed a complaint before the Consumer Forum, which
was registered as Consumer Case No.2 of 2008 and prayed for setting aside the
demand of Rs.53,71,988.87 by asserting that it had already deposited the
outstanding dues vide receipt dated 5.12.1997 and that appellant No.1 was not
entitled to recover late payment surcharge. The Consumer Forum referred to
order dated 17.1.2008 passed in Writ Petition No.78 (M/B) of 2008 and held that
appellant No.1 is entitled to recover the outstanding dues. The last four
paragraphs of order dated 1.3.2008 passed by the Consumer Forum read thus:
the parties at length. The complainant has argued that his grievances has never
been adjudicated on merit and he was not given opportunity at any stage.
perusal of the Hon. High Court judgment and order dated 17.01.2008 passed in
writ petition No.78 (M/B) 2008 specifically states that in pursuance of order
dated 24.05.2002 passed in writ petition No.2907 (M/B) 2002, the controversy
was adjudicated afresh by competent authority calling upon the complainant vide
order dated 05.07.2002 and after giving full opportunity of hearing the final
order was passed by competent authority on 11 10.07.2002 which was never
challenged and got finality and the writ petition challenging the recovery
proceeding in pursuance of the order dated 10.07.2002 was also rejected by the
Hon. High Court. The Hon. High Court order also reveals that against the
recovery demand Rs.5372006.87 the writ petition was finally disposed of on
07.10.2002 with direction to complainant to pay half of the amount to
respondent No.2 within 3 weeks and rest in installment thereafter again the
controversy relating to one time settlement was adjudicated by the competent
authority but the complainant failed in the all the time and these facts were
also not disclosed before Hon. High Court in Writ Petition No.78 (M/B) 2008 and
also have not been disclosed before this Forum.
complainant has adjudicated the present matter before the Hon. High Court as
well as before the competent authority and the same has been adjudicated at
that level by giving full opportunity to the complainant but instead of making
compliance of the orders passed by the Hon. High Court the complainant
preferred the present compliant to avoid from payment of the recovery of electricity
dues which is not maintainable in view of principle of res-judicata and as such
is liable to be dismissed.
view of the discussion made above the Forum is of the view that the present
complaint has already adjudicated upon after giving full opportunity by the
competent authority and the same is dismissed as not maintainable.
the U.P.P.C.L. has full right to recover outstanding dues."
The appeal preferred by respondent No.1 was dismissed by the Electricity
Ombudsman vide his order dated 26.3.2008.
After losing battle in the High Court and other adjudicatory forums, respondent
No.1 deposited Rs.15 lacs in two installments of Rs.10 lacs and Rs.5 lacs and
then approached the Minister of Energy, Government of Uttar Pradesh, who
directed the Managing Director of Mandhyanchal Power Corporation to attend the
grievance of respondent No.1. However, the concerned office did not yield to
the pressure tactics adopted by respondent No.1 through political channel and
issued revised certificate dated 28.6.2008 for recovery of Rs.28,62,029/- as
arrears of land revenue. As a follow up, Naib Tehsildar, Bijnor issued
proclamation dated 8.7.2008 for sale of the property of the respondents.
issuance of the revised certificate enthused the respondents to again try their
luck and they filed Writ Petition No.6744 (M/B) of 2008 with the prayer that
the recovery proceedings initiated by appellant No.1 and its functionaries,
orders dated 1.3.2008 and 26.3.2008 passed by the Consumer Forum and the
Electricity Ombudsman respectively and the sale proclamation may be quashed.
further prayed for issue of a direction to the prescribed authority to issue
revised bill as per OTS scheme dated 31.10.2003 after adjusting the amount
already deposited and by waiving the late payment surcharge.
At the hearing of the writ petition, which was sixth in series, learned counsel
representing respondent Nos.1 to 3 (including the appellants herein) apprised
the Division Bench of the High Court about the successful/unsuccessful
litigious and non-litigious adventures undertaken by the writ petitioners and
submitted that their challenge to the revised recovery certificate should not
Division Bench of the High Court did not deal with the objection to the
maintainability of the writ petition, which was implicit in the submissions of
the learned counsel and passed order dated 1.8.2008 by which a retired Judge of
the High Court, namely, Justice K.S. Rakhra was appointed to settle the dispute
between the parties, albeit by recording that this was being done with the
consent of the counsel for the parties. The relevant portions of that order are
Manoj Kumar Dwivedi, the learned counsel for the respondent nos.1 to 3, on the
basis of instructions, submits that at present Rs.28,62,029/- is outstanding
against the petitioners. He further submits that the petitioners have filed
several writ petitions before this Hon'ble Court and he also approached the
Electricity Ombudsman and Consumer Grievance Redressal Forum, Lucknow i.e.
respondent nos.6 and 7. He further submits that the cheques issued by the
petitioners during the period April 1997 to January 1998 were dishonoured.
considered the submissions made by the learned counsel for the parties.
14 It is
admitted case of the parties that the electricity of the petitioners was
disconnected permanently on 12.01.1998.
to the petitioners, they have deposited Rs.54,73,208/- with the respondent no.1
to 3 on different dates between 1997 to 2008. On the basis of instructions
issued by the respondent Nos.1 to 3, Sri Dwivedi, the learned counsel for the
respondent nos.1 to 3 has informed this Court that at present the outstanding
against the petitioners is about Rs.28,62,029/- although in the proclamation of
sale dated 08.07.2008 the outstanding is mentioned as Rs.43,63,029/-. The
petitioners have alleged that they are entitled for refund of Rs.11,11,179/-.
The petitioners have filed several writ petitions in this Court in the past
which were finally disposed of after hearing the learned counsel for the
disputed question of facts are involved in this case, we, with the consent of
learned counsel for the parties, appoint Mr. Justice K.S. Rakhra (Retired)
Judge of this Court to settle the dispute between the parties.
petitioners and the respondent nos.1 to 3 shall file their claims at the
residence of Justice K.S. Rakhra (Retired) on 12.08.2008, who after affording
opportunity to both the parties will decide the dispute and submit the report
preferably within two months before this Court."
supplied) (xvii) The parties filed their respective claims before Justice K.S. Rakhra
(Retd.). In the statement filed on behalf of the appellants, it was pleaded
that the respondents are not entitled to any relief because order dated
10.7.2002 passed by General Manager, LESA had become final and Writ Petition
No.78 (M/B) of 2008 filed against revised recovery certificate dated 6.9.2007
was dismissed as not pressed. It 15 was also pleaded that the respondents
cannot take benefit of the OTS because they failed to comply with the
conditions enshrined therein.
Justice K.S. Rakhra (Retd.) did not pay due attention to the statement filed on
behalf of the appellants and submitted report dated 17.10.2008 with the
the basis of the discussions made above, it is concluded that the UPPCL had not
correctly calculated the late payment surcharge which in fact could be
calculated as Rs.28,37,609/-. They committed an error in fixing the said amount
of late payment surcharge at 35% of the total bill amount and giving waiver of
only sum of Rs.18,73,474/-. IN the split up figures of LPS in the Bill amount
of Rs.53,72,006/- they have also made a futile attempt to show as if the waiver
was 100% of the late payment surcharge amount because, this total LPS too, has
been shown to be Rs.18,73,474/-.
further concluded that the bill raised by UPPCL after first OTS, was clearly
incorrect bill for Rs.34,98,532.26 P. Instead, it should have been for
Rs.23,41,739/-. The petitioners paid first instalment of Rs.9,00,000.00 under
protest. Their application for OTS was entertained even second time. They were,
therefore, not at fault in withholding further payment till the correct bill
dismantling charges of Rs.1,36,915/- have been wrongly claimed instead of
Rs.400/- which were standard charges."
his report, the learned retired Judge relied upon the statement made by Shri
Akhilesh Srivastava, Executive Engineer of appellant 16 No.1 that respondent
No.1 was allowed to pay the amount in nine installments out of which six had
already been paid and concluded that only Rs.5,07,677.03 was payable against
the demand of Rs.14,14,037.03 which remained to be paid after adjustment of the
amount paid towards the bills of May to October, 1997. The learned retired
Judge held that respondent No.1 was entitled to 100% waiver of late payment
surcharge. He further held that appellant No.1 is not entitled to levy
dismantling charges and interest and concluded that as against the outstanding
dues of Rs.23,41,739/-, respondent No.1 had already paid Rs.25,11,000/-.
appellants filed detailed objections against the report of Justice K.S. Rakhra
(Retd.). They pointed out that the cheques given by respondent No.1 towards
five out of nine installments had been dishonoured and despite being asked, it
did not produce the bank statement. The appellants also alleged that the
respondents had manipulated bill dated 1.12.1997. As regards the OTS, the
appellants pointed out that benefit thereof could be availed only if the amount
was paid by 31.10.2003, which the respondents failed to do. It was also pointed
out that cheque of Rs.9 lacs given by respondent No.1 on 30.11.2003 was
dishonoured by the bank on 9.12.2003 and later on, payment was made through
fresh cheque. According to the 17 appellants, the respondents did not pay the
remaining installments and, therefore, they were not entitled to waiver of the
late payment surcharge in terms of the OTS. On the issue of levy of dismantling
charges, the appellants pointed out that the demand was made strictly as per
the order of the Board and Rs.400 were payable only by those consumers who were
getting supply from the sub station.
High Court summarily brushed aside the objections filed by the appellants and
allowed the writ petition by relying upon the report of Justice K.S. Rakhra (Retd.)
as if the determination made by him was final.
T.N. Singh, learned counsel for the appellants submitted that the impugned
orders are liable to be set aside because the Division Bench of the High Court
failed to appreciate that the respondents had not challenged the determination
made by General Manager, LESA vide order dated 10.7.2002 and the fact that Writ
Petition No.78 (M/B) of 2008 filed by respondent No.1 was dismissed as not
pressed. Learned counsel argued that the Division Bench of the High Court was
not at all justified in undertaking an exercise for re-determination of the
liability of the respondents to pay the dues of electricity ignoring that their
challenge to the recovery certificates issued earlier had failed and they did
not pay a single farthing in compliance 18 of order dated 7.10.2002 passed in
Writ Petition No.6121 (M/B) of 2002 and also failed to honour the commitment
made to pay the dues in terms of the OTS. Learned counsel also assailed the
report of Shri Justice K.S. Rakhra (Retd.) and argued that the learned Judge
totally exceeded his brief when he held that the respondents are entitled to
refund of Rs.1,69,261/-.
Learned counsel for the respondents did not dispute that order dated 10.7.2002
passed by General Manager, LESA was not challenged by his clients and that Writ
Petition No.78 (M/B) of 2008 filed by them was dismissed as not pressed but
argued that after having agreed to the appointment of a retired Judge to settle
the dispute between the parties, the appellants are estopped from questioning
the findings contained in the report of Justice K.S. Rakhra (Retd.). In the
written submissions filed on behalf of the respondents, it has been claimed
that the petitioners are not entitled to challenge the report of Justice K.S.
Rakhra (Retd.) because he was appointed with the consent of the counsel for the
parties. It has been further claimed that demand of late payment surcharge was
totally unjustified and in any case, the appellants are not entitled to realize
the amount specified in order dated 10.7.2002 passed by General Manager, LESA
because details of the outstanding dues were never furnished to the
respondents. The respondents have also justified the findings recorded in the
report of Justice K.S. Rakhra (Retd.) by contending that the appellants cannot
claim dismantling charges 19 and interest on late payment surcharge because the
respondents were allowed to pay the due amount in installments and all the dues
had been cleared.
have thoughtfully considered the submissions of the learned counsel. In our
view, the writ petition filed by the respondents for setting aside orders dated
1.3.2008 and 26.3.2008 passed by the Consumer Forum and the Electricity
Ombudsman as also the sale proclamation was nothing but was an abuse of the
process of the court and the High Court committed serious error by entertaining
and allowing the same. It is not in dispute that in none of the writ petitions
filed by them, respondent No.1/respondents challenged order dated 10.7.2002 passed
by General Manager, LESA, who held that respondent No.1 was liable to pay the
dues amounting to Rs.53,72,006.87. Therefore, the consequential action taken by
the prescribed authority to issue recovery certificate/revised recovery
certificate was not open to be challenged by the respondents and in any case,
order dated 10.7.2002 could not have been indirectly nullified by the High
Court by allowing the writ petition filed for quashing orders dated 1.3.2008
and 26.3.2008 passed by the Consumer Forum and the Electricity Ombudsman.
the Division Bench of the High Court not only failed to notice this designed
omission on the respondents' part to challenge order dated 10.7.2002 passed by
General Manager, LESA but also ignored the 20 starking facts that respondent
No.1 failed to comply with order dated 7.10.2002 passed in Writ Petition
No.6121 (M/B) of 2002 and that Writ Petition No.78 (M/B) of 2008 filed by it
for quashing the revised recovery certificate dated 6.9.2007 was dismissed as
not pressed. It is extremely difficult, if not impossible to fathom any reasons
why the High Court appointed Justice K.S. Rakhra (Retd.) for settlement of
dispute between the parties, the determination of which, in its own opinion
involved investigation into disputed questions of fact. It seems to us that the
Division Bench was very much conscious of the limitations of High Court's
jurisdiction under Article 226 of the Constitution and, therefore, it evolved a
novel method for granting relief to the respondents. We disapprove the
mechanism adopted by the High Court for disposing of the writ petition filed by
the respondents by relying upon the report of the retired Judge, who recorded
findings in derogation of order dated 10.7.2002 passed by General Manager, LESA
and completely overlooked the factum of dismissal of Writ Petition No.78 (M/B)
of 2008 filed by respondent No.1 against the revised recovery certificate dated
Although, the sixth writ petition filed by the respondents cannot be treated as
barred by res judicata because in the previous writ petitions, they did not
have the occasion to challenge orders dated 1.3.2008 and 26.3.2008 passed by
the Consumer Forum and the Electricity Ombudsman and the sale 21 proclamation,
while passing the impugned orders, the High Court was duty bound to take note
of conduct of respondent No.1 which had instituted five writ petitions and
other proceedings with the sole object of avoiding its liability to pay the
dues of electricity. The High Court should also have taken note of the fact
that respondent No.1 did not abide by the terms of the OTS and declined to
entertain the prayer made by the respondents.
what has been observed in the preceding paragraphs, we are convinced that the
impugned orders are liable to be set aside because the High Court has not
assigned any reason for quashing orders dated 1.3.2008 and 26.3.2008 and the
sale proclamation. The Division Bench of the High Court did not find any legal
infirmity in the decisions taken by the Consumer Forum and the Electricity
Ombudsman not to entertain the respondents' prayer for nullifying the demand
raised by appellant No.1 and yet it quashed the two orders by simply
reproducing and relying upon the report of Justice K.S. Rakhra (Retd.), which
was prepared by distorting the facts and with the sole purpose of espousing the
cause of the respondents.
9. In the
result, the appeals are allowed. The impugned orders are set aside and the writ
petition filed by the respondents before the High Court is dismissed. Within
one month from today, the appellants shall supply to the respondents a
statement containing the details of the outstanding dues. The statement shall
also 22 incorporate the amounts already paid by and on behalf of respondent
six months of the receipt of the statement, the respondents shall pay the
outstanding dues in six equated monthly installments. The first installment
shall be paid by the end of June, 2010 and the remaining installments shall be
paid on or before 31st July, 31st August, 30th September, 31st October and 30th
November of 2010. If the respondents omit to pay either of the installments,
the appellants shall become entitled to recover the entire balance amount along
with interest at the rate of 12% per annum.
.................................J. [G.S. Singhvi]
.................................J. [Asok Kumar Ganguly]
May 07, 2010.