# M/S Kamla Cold Storage v. Madhyanchal Vidhut Vittran Nigam Ltd. & Anr

- **Citation:** (2020) 7 ILRA 378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-18
- **Case number:** Writ C No. 70447 of 2009
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kamla-cold-storage-v-madhyanchal-vidhut-vittran-nigam-ltd-anr-45898
- **Pages:** 6

## Headnote

Civil Law-Electricity Act, 2003-Section 62
(6)-Petitioner claims interest over excess
amount towards the electricity charges-he
himself
demanded
supply
from
rural
feeder while he was being supplied from
the urban feeder-sudden change delayed
the
rebate
process-no
malice-rebate
cannot be equated to excessive tarrif
charged-therefore this case do not falls
u/s 62 (6) of the Electricity Act,2003.

Held, the rebate itself is a part of the tariff
order, of which percentage has been changed
from time to time and once the petitioner has
been given the due rebate, we do not think that
the petitioner is entitled for any further interest,
over and above, the amount adjusted against
the electricity dues. (Para 20)

Writ Petition dismissed. (E-9)

## Text

378 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The office the directed to remit
the copy of this order to the court concern
within a week by a fastest mode of
services. The above 482 applicants falls flat
and accordingly dismissed
----------
(2020)07ILR A378
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 70447 of 2009

M/S Kamla Cold Storage ...Petitioner
Versus
Madhyanchal Vidhut Vittran Nigam Ltd. &
Anr. ...Respondents

Counsel for the Petitioner:
Sri B.C. Rai, Sri Deepak Kumar Pandey

Counsel for the Respondents:
Sri H.P. Dube, Sri Shivam Yadav, Sri M.K.
Yadav.

Civil Law-Electricity Act, 2003-Section 62
(6)-Petitioner claims interest over excess
amount towards the electricity charges-he
himself
demanded
supply
from
rural
feeder while he was being supplied from
the urban feeder-sudden change delayed
the
rebate
process-no
malice-rebate
cannot be equated to excessive tarrif
charged-therefore this case do not falls
u/s 62 (6) of the Electricity Act,2003.

Held, the rebate itself is a part of the tariff
order, of which percentage has been changed
from time to time and once the petitioner has
been given the due rebate, we do not think that
the petitioner is entitled for any further interest,
over and above, the amount adjusted against
the electricity dues. (Para 20)

Writ Petition dismissed. (E-9)
(Delivered by Hon'ble Ramesh Sinha, J. &
Hon'ble Ajit Kumar, J.)

1. Heard Sri B.C. Rai, learned counsel
for the petitioners and Sri Shivam Yadav,
learned
counsel
for
the
respondents.
Perused the record.

2. By means of this petition under
Article 226 of the Constitution of India, the
petitioner has made three prayers claiming
substantial relief in the matter, reproduced
hereunder:

"i. issue a writ order or direction
in the nature of certiorari quashing the
impugned order dated 05.09.2009 and
order dated 05.08.2009 in so far it refused
to allow electricity connection from town
feeder (Annexure Nos.6 and 5 to the writ
petition),
passed
by
the
Executive
Engineer;

ii. issue a writ order or direction
in the nature of mandamus restraining the
respondents from disconnecting electric
supply till the final adjustment of amount
found refundable to the petitioner;

iii. issue a writ order or direction
in the nature of mandamus directing the
Executive Engineer to allow interest on the
amount found refundable to the petitioner
along with rebates provided in the tariffs'
order and further to allow revision of
electricity
bill
under
Non-Continuous
Process Industry;"

3. Initially when the writ petition was
entertained this Court has been pleased to
pass the following order on 22.12.2009:

"Heard Sri B.C. Rai for the
petitioner
and
Sri
S.K.
Dubey
for
respondents.
7 All. M/S Kamla Cold Storage Vs. Madhyanchal Vidhut Vittran Nigam Ltd. & Anr.
379

From the perusal of the letter
dated 5.8.2009 along with statement of
account, it appears that a huge amount has
already been deposited by the petitioner in
excess yet without adjusting the same, a
sum of Rs. 1,16,470/- has been demanded
by means of the letter dated 5.9.2009 and
the Executive Engineer has not adjusted the
amount already paid by the petitioner in
excess. Learned counsel for the petitioner
submitted that earlier the petitioner was
getting the supply from urban feeder but by
means of the letter dated 5.9.2009, the
Executive Engineer has not directed for
supply to the petitioner from rural feeder.

Learned
counsel
for
the
respondents prays for and is allowed one
month time to file counter affidavit.
Petitioner will have three weeks thereafter
to file rejoinder affidavit.

Until further orders, the demand
pursuant to the letter dated 5.9.2009
(Annexure 6 to the writ petition) as well
operation of the order dated 5.9.2009
(Annexure 7 to the writ petition) shall
remain stayed."

4. Today now when after the exchange
of pleadings the matter has come up at
admission stage, learned counsel for the
parties agreed that the case can be decided
finally at this stage.

5. At the very outset, learned counsel
for the petitioner submits that he is not
pressing prayer no.1 and 2 of the writ petition
and to that extent, therefore, the writ petition
may be dismissed as withdrawn.

6. Hence, the petition is dismissed as
withdrawn without any further liberty, in
respect of prayer no.1 and 2 of the writ
petition.

7. In so far as the prayer no.3 is
concerned,
learned
counsel
for
the
petitioner has argued that in view of the
statutory provision as contained under SubSection 6 of Section 62 of the Electricity
Act, 2003, the petitioner has become
entitled for an interest over and above an
amount of Rs.3,98,033.4/-, in the face of
the fact that the Executive Engineer,
Electricity
Distribution
Division-3rd,
Madhyanchal
Vidyut
Vitran
Nigam
Limited,
Bisauli,
Budaun,
namely,
respondent no.2 has admitted to have
charged
excess
amount
towards
the
electricity charges from the petitioner and
which was liable to be adjusted from the
future running electricity bills against
consumption. It has been argued by learned
counsel for the petitioner that since the
Electricity Regulatory Commission has
been notifying tariff from time to time, the
respondents
are
entitled
to
charge
electricity charges on the basis of the tariff
order. He submits that in the year 2002,
there was difference between the tariff
order relating to the electricity supply from
rural feeder than from the town feeder and
there was 10 % rebate prescribed for on the
demand of charge and energy charge. He
argues that the tariff is nothing but a charge
against the electricity per unit consumption
which is issued under the tariff order. He
submits that the tariff orders are issued by
the Regulatory Commission from time to
time and until year 2006 there was a
difference between the urban schedule and
rural schedule. However, later on, it came
to be crystallized in the form of rebate only.
He submits that once the respondents have
supplied electricity to the petitioner's cold
storage from the rural feeder instead of a
town feeder despite the petitioner's cold
storage
being
a
continuous
process
industry, the charges levied by the
respondents on the electricity consumption
380 INDIAN LAW REPORTS ALLAHABAD SERIES
would amount to be a charge in derogation
to the tariff order notified by the Electricity
Regulatory Commission from time to time
and, therefore, such an action would come
within the ambit and scope of Sub-Section
6 of Section 62 of the Electricity Act, 2003.

8. Per contra, it has been argued by
learned
counsel
for
the
contesting
respondents that the petitioner has only been
granted rebate in terms of the tariff orders
issued from time to time as the supply was
being made from the rural feeder, the grant of
rebate would not amount to an act of
admission that the petitioner was being
charged higher tariff than the one provided
under the tariff order. He submits that the
electricity charges are made on the basis of
the consumption and except in cases of
continuous process industry the petitioner
was entitled to the exemption under Clause
10 of the notification issued under Section
22B of the Indian Electricity Act, 1910. It has
been further argued that the petitioner's cold
storage as of now is not in operation,
inasmuch as the petitioner was provided with
the supply from the rural feeder on his own
request and, therefore, the petitioner now
cannot be permitted to take a 'U'-turn that the
petitioner be given rebate as the supply was
made from rural feeder instead of urban
feeder.

9.. Specific averment to the above
effect has been made in paragraph nos.3, 4, 7,
8 & 9 of the counter affidavit and reply to
which made in the rejoinder affidavit, it is
alleged is quite evasive. The petitioner does
not dispute in the rejoinder affidavit the two
basic facts: firstly, that the petitioner's
industry is not a continuous process industry;
and secondly that supply of electricity to the
petitioner's cold storage was from rural feeder
on the request being made by the petitioner
himself.

10. It has been urged by learned
counsel for the respondents that the
petitioner since has been offered rebate as
per tariff order itself, the petitioner is not
entitled for any interest. He further submits
that there is no charge of higher tariff being
charged in the matter. The rebate is an ex
gracia policy of the commission in framing
the tariff order and there is nothing in law
which entitles the petitioner to have interest
over and above such rebate. He submits
that if it is a charge for the electricity, it has
to be charged accordingly. The benefit of
rebate is offered as in the present facts and
circumstances, is covered under the tariff
order and it is that benefit that has been
given to the petitioner.

11. Having heard learned counsel for
the parties and having perused the record
and the provisions specifically dealing with
interest under Sub-Section 6 of Section 62
of the Electricity Act, 2003 (for short Act,
2003), we find that the undisputed position
is that if the charge exceeding the tariff
determined, then under the Section, excess
amount is recoverable by a person who has
paid such charge alongwith interest to the
bank rate. The question, therefore, is now
as to what is the situation or a contingency
where the department can be saddled with
the statutory liability to pay interest.

12. The word 'tariff' has not been
defined under the Act, 2003, however, U.P.
Electricity Supply Code, 2005 (Code,
2005) vide clause 2.2 (yy) defines 'tarrif
order' as under:

'Tariff Order' in respect of a
Licensee means order issued by the
Commission for that Licensee indicating
the rates to be charged by the Licensee
from various categories of consumers for
the supply of electrical energy and services.
7 All. M/S Kamla Cold Storage Vs. Madhyanchal Vidhut Vittran Nigam Ltd. & Anr.
381

13. Code, 2005 vide clause 2.2 (zz)
also defines 'tarrif schedule' as under:

'Tarrif Schedule' is the most
recent schedule of charges for supply of
electricity and services issued by the
Licensee as per the provisions of the Tariff
order for that Licensee.

14. The above definitions are clearly
indicative of tarrif means rates of electricity
supplied, to be charged by the licensee and
schedule prescribed of such charges to be
levied by the licensee. Clause 2.2 of
Chapter 2 (Definitions) of Code, 2005
defines the word 'energy charge' and 'fixed
charges'. Clause 2.2 (z) (dd) defines energy
charge as well as fixed charges. While the
"energy charge" is defined as "a charge
levied on the consumer for each unit of the
electricity supplied as per the tariff order of
the Commission", the "fixed charges" shall
be as per provisions of the tariff order.
Clause 2.2 (u) defines demand charge as 'a
charge levied on the consumer based on
maximum demand or as per the tariff
order'. Clause 2.2 (z) defines energy
charges as 'a charge levied on the
consumer for each unit of electricity
supplied as per tarrif order of the
Commission'. The maximum demand has
been defined under Clause 2.2 (ll) as 'the
average amount of KW or KVA, as the
case may be, delivered at the point of
supply of the consumer and recorded
during a 30 minute period of maximum use
in the billing period'.

15. So from the above we find that the
demand charge is a kind of charge for the
electricity supply to be either as per the
tariff order or as per the billing status of the
average amount at the time of maximum
use in that period of billing. The energy
charge is the charge for the consumption
per unit and this is also to be provided
under the tariff order and the fixed charges
are also as per the tariff order.

16. Section 62 of the Act, 2003
provides for the determination of tariff
which runs as under:

"Section 62. (Determination of
tariff): --- (1) The Appropriate Commission
shall determine the tariff in accordance
with the provisions of this Act for -

(a) supply of electricity by a
generating company to a distribution
licensee:

Provided that the Appropriate
Commission may, in case of shortage of
supply of electricity, fix the minimum and
maximum ceiling of tariff for sale or
purchase of electricity in pursuance of an
agreement,
entered
into
between
a
generating company and a licensee or
between licensees, for a period not
exceeding one year to ensure reasonable
prices of electricity;

(b) transmission of electricity ;

(c) wheeling of electricity;

(d) retail sale of electricity:

Provided
that
in
case
of
distribution of electricity in the same area
by two or more distribution licensees, the
Appropriate
Commission
may,
for
promoting competition among distribution
licensees, fix only maximum ceiling of tariff
for retail sale of electricity.

(2) The Appropriate Commission
may require a licensee or a generating
company to furnish separate details, as
382 INDIAN LAW REPORTS ALLAHABAD SERIES
may be specified in respect of generation,
transmission
and
distribution
for
determination of tariff.

(3) The Appropriate Commission
shall not, while determining the tariff under
this Act, show undue preference to any
consumer
of
electricity
but
may
differentiate according to the consumer's
load factor, power factor, voltage, total
consumption of electricity during any
specified period or the time at which the
supply is required or the geographical
position of any area, the nature of supply
and the purpose for which the supply is
required.

(4) No tariff or part of any tariff
may
ordinarily
be
amended,
more
frequently than once in any financial year,
except in respect of any changes expressly
permitted under the terms of any fuel
surcharge formula as may be specified.

(5) The Commission may require
a licensee or a generating company to
comply with such procedures as may be
specified for calculating the expected
revenues from the tariff and charges which
he or it is permitted to recover.

(6) If any licensee or a generating
company recovers a price or charge
exceeding the tariff determined under this
section, the excess amount shall be
recoverable by the person who has paid
such price or charge along with interest
equivalent to the bank rate without
prejudice to any other liability incurred by
the licensee."

17. Section 62 says that the tariff shall
be determined in accordance with the
provisions of this Act for the supply of
electricity,
transmission
of
electricity,
billing
of
electricity,
retail
sale
of
electricity.

18. In the present case, we are
concerned with the retail sale of the
electricity. Since the tariff itself has not
been defined, it would be taken to be a
charge for the supply in different heads like
fixed charges, electricity charges etc. As
different tariff orders have been placed
before us it is very much clear and explicit
from a bare reading of the same that
different kind of charges have been
provided and have been amended from
time to time. But the question is as to
whether the petitioner has been charged
with more tariff than the prescribed one.
From close scrutiny of the order impugned
and the billing chart that has been provided
to the petitioner alongwith the order, it is
clearly revealed that the fixed charges have
remained as per the supply to the cold
storage, prescribed under the Rules and
since the tariff order provided for rebate,
the rebate has been granted to the
petitioner. It, therefore, can be safely
concluded that the petitioner has not been
levied with any excessive tariff than the
prescribed one. However, the rebate that
has been offered to the petitioner finally, it
can be said to have been offered by the
respondents on the basis of calculation qua
regular entitlement for supply of electricity
in the past. It is this much of inaction for
quite
sometime
or
delayed
action
consequently is claimed to be an act of
admission on the part of respondents to
bind them to pay interest in the matter.

19. The distinction between the
demand raised as per tarrif order and rebate
is that licensee shall calculate the energy
charges, fixed charges etc. as per the tarrif
order whereas the tarrif order also provides
for rebate over and above such charges in
7 All. Triveni Engineering & Industries Ltd. Vs. State of U.P. & Ors.
383
the form of certain percentage to deduct the
amount from the demand raised. So both in
case of computation as per tarrif order and
rebate on the basis of tarrif order to make
the demand an actual demand have inbuilt
mechanism for calculation on the basis of
same tarrif order, to wit:fixed rate of
electricity supplied and rate of electricity
per unit consumed. Rebate thus is a
concession not on the tarrif chargeable but
on the bill generated to make it finally a
demand to be raised and to be paid by the
consumer. It, therefore, cannot be equated
to a case where higher tarrif is charged than
the prescribed one in a bill to make a
consumer entitled to refund with interest as
per Sub Section (6) of Section 62 of the
Act, 2003.

20. In the facts and circumstances of
this case where there is a clear admission on
the part of the petitioner, we find merit in the
submission of learned counsel for the
respondent that the petitioner has not denied
fact averred in relevant paragraphs of counter
affidavit that petitioner himself demanded
supply from the rural feeder while he was
being supplied from the urban feeder. This
sudden change would have delayed the rebate
process and therefore, no malice in law
detected in the matter at the end of the
respondent authorities. The claim of interest
is a kind of penalty in law for unjust
enrichment either by denying a person the
money to which he was entitled or,
something more has been extracted beyond
the lawful authority. The rebate, therefore,
cannot be equated to excessive tariff charged
so as to bring it within the ambit of SubSection 6 of Section 62 of the Electricity Act,
2003. The rebate itself is a part of the tariff
order, of which percentage has been changed
from time to time and once the petitioner has
been given the due rebate, we do not think
that the petitioner is entitled for any further
interest, over and above, the amount adjusted
against the electricity dues.

21. The writ petition lacks merit and is,
accordingly, dismissed.

22. Interim order, if any, stands
discharged.
----------
(2020)07ILR A383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2020

BEFORE

THE HON'BLE SIDDHARTH VARMA, J.

Writ C No. 2229 of 2020

Triveni Engineering & Industries Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Diptiman Singh

Counsel for the Respondents:
C.S.C., Sri Bhupendra Nath Singh, Sri
Parmendra Nath Singh

Civil Law-Service of Respondent no.3
terminated-industrial dispute arose-High
Court directed labour Court-to decide
whether appellant is workman or notbefore deciding case on merit-several
dates
fixed-Petitioners
were
given
impression -that arguments would take
place only w.r.t. the direction of the High
Court-no issues framed-therefore no leave
was sought to lead evidence-The labour
court answered the reference and framed
the
issues
simultaneoulsy-no
proper
opportunity given to the parties to lead
evidence.

Held, a perusal of the award of the Labour
Court definitely shows that after hearing was
concluded on 17.9.2019, the Labour Court had