WP/26192/2008 of M/s. Shiva Sagar Paper AND Chemical Ltd., Vs Chief General Manager / O.E.C.S. on 26 December 2008

ORAL ORDER:

This writ petition is filed seeking a Mandamus declaring the actionof the respondents in not restoring power supply to the petitioner’s unit inpursuance of the orders passed by the A.P. State Consumer DisputeRedressal Forum in R.P.No.211 of 2008 as arbitrary, illegal and ultravires the provisions of Consumer Protection Act, 1982 and violative ofrights guaranteed under Articles 14 and 19(1)(g) of the Constitution ofIndia.

It appears, petitioner company is engaged in the business ofmanufacturing of Craft and Duplex paper since 1999. The serviceconnection of the petitioner company was disconnected on 28.6.2002.According to the petitioner, the company and the respondents entered intoa memorandum of understanding dated 18.12.2006, wherein as thepetitioner fulfilled all the agreed terms, the respondents agreed to receivethe dues payable by the petitioner company. As there was change in theofficers dealing with the issue, the subsequent incumbent refused tohonour the memorandum of understanding dated 1 8.12.2006 and thepetitioner’s service connection was once again disconnected. Aggrievedby the same, petitioner filed W.P.No.23223 of 2007, wherein this Courtpassed the following interim order:

“Since there is a dispute with regard to payment of arrears,a petition was filed before the State Consumer Forum, which hasdirected for restoration of power supply on payment ofRs.5,00,000/-. When the same was questioned before this Courtin W.P.No.9213 of 2004, this Court by order dated 31.1.2005modified the order of the State Consumer Forum and directed thepetitioner to deposit a sum of Rs.40,00,000/-.

It is stated that out of the said Rs.40 lakhs, Rs.10,00,000/-was paid immediately and thereafter another Rs.20,00,000/- waspaid for payment of balance of Rs.10,00,000/- the Chief GeneralManager, Commercial, APEPDCL, Visakhapatnam passedorders dated 20.4.2007 in letterNo.CGM/Comml/EPDCL/VSP/ADE/ C/F.GC-37/D.No.804/07granting four instalments starting from 9.6.2007. However, it isstated that though such order is passed, subsequently for thedelay in payment of the bill for the month of June, the powersupply was disconnected and in spite of payment of the said billsubsequently power supply is not restored.

As much as even according to the petitioner, he has notpaid any instalment ordered in the order dated 20.4.2007, I directthe respondents to restore the power supply on payment ofRs.10,00,000/- within a period of two (2) weeks from today. However, the payment of such arrears shall be in addition to thepayment of regular consumption charges and demand charges”.

It appears, power supply was restored on 10.5.2005 and therespondents inspected the premises within 15 days i.e. on 25.5.2005 andconcluded that the petitioner had committed malpractice during the periodfrom 28.6.2002 to 10.5.2005, and the petitioner’s service connection wasdisconnected. Pursuant thereto a demand for Rs.15,79,000/- has beenraised even for the period while the petitioner’s service connection wasdisconnected. For the very same period, an amount of Rs.41.00 lakhshas been demanded as minimum monthly consumption charges onaccount of petitioner not availing electricity supply. The petitioner hadalso agitated the issue of levying minimum charges and aggrieved by thedemand, petitioner approached the second respondent by pointing out theabove anomaly. However the second respondent passed orders of final

assessment without giving any opportunity of hearing. Aggrieved thereby,petitioner filed appeal before the first respondent and first respondent byhis order dated 22.3.2007 rejected the said appeal. Pursuant thereto,second respondent directed the petitioner vide letter dated 25.8.2008 topay an amount of Rs.15,79,000/- within 15 days and the order was servedon 30.8.2008. According to the petitioner, the said order passed by therespondent is arbitrary and illegal. In the meanwhile, on 10.9.2008 therespondent disconnected power supply to the petitioner’s serviceconnection No.HT SKL-132 for non-payment of the above amountsthough the petitioner was entitled to pay the same on or before14.9.2008. According to the petitioner, the period for which the companyalleged to have committed malpractice is the same period during whichpetitioner’s power supply was disconnected. Under the relevantprovisions, power has been conferred on the authorities to levymalpractice charges only for a period of 10 months from the date ofdetection. In spite of the above, the appellate authority who is the officerof the respondent Corporation mechanically confirmed the levy of penalcharges to the tune of Rs.15,79,000/-. Therefore, petitioner raisedconsumer dispute in C.D.O.P.No.115 of 2008 on the file of DistrictConsumer Forum, Srikakulam along with I.A.No.154 of 2008 for restoringpower supply to the petitioner’s unit. The District Forum vide order dated29.9.2008 directed restoration of power supply on condition of petitionerpaying Rs.10.00 lakhs. While passing the above order, the District Forumdid not even advert to or consider the fact that there cannot be twodemands i.e. minimum monthly consumption charges as alsoconsumption charges for the same period. Aggrieved by the said order,petitioner preferred revision under Section 17(1)(b) of the ConsumerProtection Act, 1986 in R.P.No.211 of 2008 along with R.P.I.A.No.2393 of2008 before the State Commission and also sought for restoring powersupply to the unit. The State Commission vide its order dated 10.10.2008

passed interim direction directing restoration of power supply on conditionof petitioner depositing Rs.5.00 lakhs within four weeks. Subsequentlythe said order has been modified permitting the petitioner to pay the saidamount in two instalments. The State Forum while passing the saidorders, has not even considered the fact that the petitioner has paidminimum monthly consumption charges for the very same period and thatthe petitioner’s unit was being inspected every month by the respondentsand there was no complaint whatsoever of pilferage during the saidperiod and further the respondents have no power to levy malpracticecharges for a period beyond 10 months. However, in obedience to theinterim orders, petitioner has already deposited amounts as directed bythe State Commission. Though the respondents filed vacate stay petitionin R.P.I.A.No.2436 of 2008 in R.P.I.A.No.2393 of 2008 in R.P.No.211 of2008, the same is not being taken up for hearing for want of quorum. Therespondents are taking advantage of the same and are not implementingthe orders of the State Forum, which is causing huge loss and hardship tothe petitioner company. Hence this writ petition.

This Court, while admitting the writ petition on 1.12.2008, directedfor restoration of power supply subject to the condition petitioner depositsa sum of Rs.3.00 lakhs. It is brought to the notice of the Court that thepetitioner has already complied with the said order and there is no disputeas to this fact. However, the respondents have filed vacate stay petitionseeking to vacate the said order.

The learned counsel appearing for petitioner Sri C.Kodandaramcontended that in all petitioner has complied with the orders passed bythe State Commission and deposited an amount of Rs.5.5 lakhs, i.e.Rs.50,000/ more than the required amount. The respondents, in the guiseof filing vacate stay petition before the State Commission, cannot takeadvantage of its pendency and hearing for want of quorum and denypower supply. This Court can always under Article 226 or 227 can direct the respondents to comply with the orders passed by the StateCommission in the peculiar facts and circumstances of the case. Thepower of this Court cannot be limited to say that since the matter ispending before the Commission and whether the Commission is able totake up the matter or not, petitioner cannot approach this Court for seekingimplementation of the orders passed by the Commission. Therefore, thewrit petition of this nature is maintainable.

The learned counsel appearing for respondent Corporationreiterated the same stand taken in the counter and contended that firstlythe writ petition itself is not maintainable and secondly, any orders passedin this writ petition would amount to circumventing the orders passed bythe State Forum and further amounts to allowing the application beforethe State Commission. Apart from this, the learned counsel arguedvarious other aspects including the previous conduct of the petitionercompany in filing writ petitions before this Court and appeals before theauthorities as to disconnection of electricity and the writ petition is devoidof merits and liable to be dismissed.

I have given my earnest consideration to the respectivesubmissions made by the learned counsel on either side and perused theimpugned order and other material made available on record.

The only aspect needs to be considered is as to whether this Courtcan issue a direction for implementation of the order passed by the StateCommission. The fact remains that in view of non-availability of quorum,the vacate stay petition filed by the petitioner is not being taken by theCommission and as such, the respondents are taking advantage of thesame and not restoring the power supply as directed by the Commission. This Court is only concerned with the fact that relates to implementation ofthe orders passed by the District Forum, which had initially directed todeposit a sum of Rs.10.00 lakhs for the purpose of seeking restoration ofpower supply. Aggrieved by the same, petitioner carried the matter in

Conclusion

revision before the State Commission and the State Commission initiallydirected to restore the power supply on payment of Rs.5.00 lakhs in twoinstalments. Since the said order was not implemented, the presentpetition has been filed. This Court, while admitting the writ petition,directed the petitioner to deposit another sum of Rs.3.00 lakhs. Thus, thepetitioner, in all, deposited a sum of Rs.5.5 lakhs. Under thosecircumstances, the respondents are bound to implement the orderspassed by the State Forum i.e. restoration of power supply to thepetitioner’s unit forthwith, which is always subject to further orders thatmay be passed by the State Commission in the vacate stay petitionpending before it. Therefore, it cannot be said that the writ petition of thisnature is not maintainable in law. A writ can be issued for the purpose ofimplementation of the orders passed by the Tribunals and other quasijudicial authorities, particularly in a case of this nature where quorum isnot available before the State Commission and it is not able to dispose ofthe matters pending before it. Therefore, it cannot be said that this Courtcannot interfere under Article 226 of the Constitution and direct therespondents to implement the orders passed by the State Commission. Since the petitioner company is an industry and unless power supply isthere, it cannot survive on its own. Under those circumstances, I am notinclined to accept the contention of the learned counsel appearing forrespondent Corporation Sri O.Manohar Reddy that the very writ petition isnot maintainable.

Since the petitioner has complied with the orders passed by theState Commission by depositing a sum of Rs.5.5 lakhs, the respondentsare directed to restore the power supply to the petitioner’s unit forthwith. However, the restoration of power supply shall be subject to further ordersthat may be passed in R.P.I.A.No.2436 of 2008 in R.P.I.A.No.2393 of2008 in R.P.No.211 of 2008 pending before the State Commission.

The writ petition is accordingly disposed of. No order as to costs.

Date: 26.12.2008DA

_____________ C.V.RAMULU, J

THE HON’BLE SRI JUSTICE C.V.RAMULU

W.P.No.26192 of 2008

26.12.2008