- (1.) U. K. Dhaon, J. AND Hon'ble Dr. Satish Chandra, J. Heard Sri Virendra Kumar Misra the learned counsel for the petitioner and Sri Manoj Kumar Dwivedi the learned counsel for the opposite party nos. 1 to 3. The petitioners being aggrieved by the orders dated 26. 03. 2008 and 03. 03. 2008 passed by respondents no. 6 and 7 and the sale proclamation dated 08. 07. 2002 has filed the instant writ petition. The brief facts of the case as alleged by the petitioners are as under : The petitioner no. 1 is a Public Limited Company duly incorporated under the provisions of Companies Act and the petitioner no. 2 is its Managing Director. Initially a load of 800 KVA for running Spinning Mills in the name of M/s. Amausi Textile Mills, Amausi, Lucknow was sanctioned by respondents no. 1 to 3. An agreement between the parties was executed on 05. 12. 1973. On the request of petitioners the sanctioned load was reduced from 800 KVA to 500 KVA w. e. f. 01. 12. 1988. The petitioners have alleged that on account of severe labour problem the petitioners were compelled to close the Mill in November, 1997 and applied for permanent disconnection with the respondents no. 1 to 3 which was accorded on 12. 01. 1998. The petitioners have also alleged that the last bill for Rs. 5,37,180. 83 was paid by the petitioners on 05. 12. 1997. The petitioners have further alleged that against the illegal and arbitrary demand the petitioners preferred an appeal before the General Manager, LESA, and as the respondents were pressing for recovery, a Writ Petition No. 2619 (M/b) of 2002 was filed in this Court and the appellate authority by the judgment and order dated 15. 05. 2002 was directed to decide the appeal within one month. The said appeal was dismissed by the General Manager without affording any opportunity to the petitioners and thereafter the petitioners filed another writ petition which was registered as Writ Petition No. 2907 of 2002 and by the judgment and order dated 24. 05. 2002 the petition was disposed of directing the appellate authority to decide the appeal afresh after giving an opportunity to the petitioners and as the said order was not complied with by the authorities, the petitioners filed another Writ Petition No. 3735 (M/b) of 2002 which was decided on 05. 07. 2002 and it was provided that till the final decision is taken, no coercive method will be used against the petitioner. The appeal of the petitioners was dismissed by the appellate authority by the order dated 10. 07. 2002. The petitioners moved an application under Section 11 of Arbitration and Conciliation Act and also moved an application under Section 9 before the District Judge and also filed a writ petition against the recovery which was registered as Writ Petition No. 6121 (M/b) of 2002 and the said petition was finally disposed of by the judgment and order dated 07. 10. 2002. Thereafter a One Time Settlement Scheme was initiated by the respondents no. 1 to 3. The petitioners to avoid multiplicity of the proceedings opted for One Time Settlement and the petitioners were required to deposit Rs. 34,98,532. 26. On 30. 11. 2003, the petitioners deposited Rs. 9,00,000/- and made a representation to the respondent no. 3 praying inter alia for withdrawal of the amount of late payment surcharge amounting to Rs. 24,32,036. 52. It was also stated that an amount of Rs. 1,36,915/- towards dismantling charges has wrongly been included and a sum of Rs. 1,00,000/- which was deposited by the petitioners on 22. 01. 2002 before the Tehsil Authority has also not been adjusted. The petitioners have alleged that revised bill after giving concession was not issued by the respondent no. 3 in spite of the repeated requests of the petitioners and as such the petitioners could not deposit the remaining amount and in the meantime the One Time Settlement Scheme came to an end. The petitioners have further alleged that a fresh One Time Settlement Scheme was again initiated by the respondents and the petitioners again opted for settlement of their dues through One Time Settlement Scheme after depositing Rs. 1,000/- towards fee and accordingly submitted an application on 15. 03. 2004. The petitioners have further alleged that respondent no. 3 just to harass the petitioners again issued recovery certificate of Rs. 43,62,006/- against the petitioners. The petitioners thereafter made a representation to the respondent no. 2 stating inter alia that the revised bill after making necessary adjustments under the One Time Settlement Scheme may be issued but in spite of the direction issued by the respondent no. 2 the correct bill under the One Time Settlement Scheme dated 31. 10. 2003 was not issued to the petitioners. The petitioners thereafter filed another Writ Petition No. 78 (M/b) of 2008 which was dismissed as not pressed. The petitioners have also alleged that a complaint was filed before the Consumer Grievance Redressal Forum, which was rejected by the order dated 01. 03. 2008. The petitioner thereafter preferred an appeal under Section 8 (1) of the Electricity Ombudsman Regulation before the respondent no. 3 which too was dismissed on 26. 03. 2008. The petitioners have further alleged that as the authorities were pressing hard to recover the alleged dues, the petitioners were compelled to approach the Hon'ble Minister for Energy on 26. 04. 2008 and the Hon'ble Minister directed the respondent no. 1 to accept some amount from the petitioners and constitute a High Level Committee for disposal of the disputed bill. The petitioners have further alleged that thereafter they deposited Rs. 15,00,000/- on 28. 04. 2008 and 05. 05. 2008, which shows that they bonafide want settlement of the disputes. In the short counter affidavit the opposite parties have alleged that the petitioner was not regularly depositing the electricity bills and in spite of the One Time Settlement Scheme accepted by the department the total amount was not deposited by the petitioner. The opposite parties have further alleged that to delay the realization of the dues the petitioner has filed successive writ petitions in this Hon'ble Court and the impugned recovery proceedings and sale of proclamation dated 08. 07. 2008 have been issued, in accordance with law. It has also been stated that the petitioner has also availed the remedy before the Consumer Grievance Redressal Forum under the Electricity Ombudsman Regulation 2003 where no relief was granted to the petitioner. By the order dated 01. 08. 2008 with the consent of the learned counsel for the parties Mr. Justice K. S. Rakhra (Retired) was appointed to settle the dispute between the parties as disputed questions of facts were involved. In compliance of the order dated 01. 08. 2008 both the parties filed their claims along with evidence before Mr. Justice K. S. Rakhra (Retired ). After considering the material on record and after hearing the learned counsel for the parties a report dated 17. 10. 2008 was submitted by Mr. Justice K. S. Rakhra (Retired ). An objection on behalf of opposite parties no. 1 to 3 against the report dated 17. 10. 2008 submitted by Mr. Justice K. S. Rakhra (Retired) has been filed by the executive engineer. By a separate order passed today the objection filed by opposite parties no. 1 to 3 to the report of Mr. Justice K. S. Rakhra (Retired) has been rejected and the report dated 17. 10. 2008 has been accepted. The report dated 17. 10. 2008 of Mr. Justice K. S. Rakhra (Retired) is as under : "report of Justice K. S. Rakhra Former Judge of the Allahabad High Court 1. This report is being submitted in compliance of the order dated 1. 8. 2008 passed by this Court in the aforesaid writ petition. The Hon'ble Court had passed the order to the following effect: "since, the disputed questions 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. The petitioner and the respondents nos. 1 to 3 shall file their claims at the residence of Justice K. S. Rakhra (Retired) Judge on 12. 08. 2008 who after affording opportunity to both the parties will decide the dispute and submit report preferably within two months before this Court. "
(2.) IN compliance of this order, parties filed their claim statement, written statements and replications before me. Their counsels including the Executive Engineer and the Accountant of the U. P. Power Corporation Limited (hereinafter referred to as the UPPCL) were heard and the records produced by them, were examined and compared with regard to disputed entries. Facts:-- 3. 1 The undisputed facts are that M/s. Amausi Textile Mills Limited Nadarganj, Lucknow had obtained an electric service connection of 550 KVA from the erstwhile Cooperative Electricity Supply Society Limited (hereinafter referred to as the (CESS ). This load was enhanced in course of time to 800 KVA but later on, was again reduced to 500 KVA in the year 1973. The CESS was taken over by the erstwhile U. P. State Electricity Board (hereinafter referred to as the (UPSEB) in April, 1997. The total amount due to the CESS from the petitioners was as follows: 1. Rs. 7,69,753. 10 P. as disputed amount; 2. Rs. 19,23,754. 47 P. as late payment surcharge (LPS); 3. Rs. 14,14,037. 03 P. as arrears of the bills from November, 1995 to April, 1997. The total amount was worth to Rs. 41,07,544. 60 P. 3. 2 First bill for the month of May, 1997 after the UPSEB had taken over the CESS, was issued to the petitioners on 9. 6. 1907 (bill No. 160) showing the aforesaid dues of CESS period in which a sum of Rs. 7,69,753. 10 P. was shown at (A) as disputed amount and Rs. 14,14037. 03 P. was shown at (B) as to be paid in instalments and Rs. 19,23,754. 47 P. was shown towards surcharge on item No. A calculated upto 31. 5. 1997 and a sum of Rs. 1,37,410. 67 P. was shown as surcharge on item No. B. Dues of UPSEB were separately shown as Rs. 2,73,503. 02 P. (please refer to Annexure-2 to the claim statement of the petitioners ). The petitioners claimed that they were allowed the facility of clearing the amount of bills of the CESS period (Rs. 14,14,037. 03 P.) in instalments under the orders of Member (D) vide UPSEB letter No. 1705 dated 4. 6. 1997. The UPPCL, however, pleaded ignorance about this letter and no copy of the letter has been brought on record. The fact that the facility to make payment in instalment was allowed to the petitioners is evident from the fact that in the bills issued to them by UPSEB from June onward, the amount of arrears of electric bills has been shown payable in instalments and as and when the instalments were paid, the arrears of the bills were gradually reduced in subsequent bills. In the bill No. 1303 dated 3. 11. 1997, the amount of arrears of bills which was originally Rs. 14,14,037. 03 P. , was shown as reduced as Rs. 9,65,631/ -. Copies of these bills can be seen in Annexure-2 with the claim statement of the petitioners. Not only this, in meeting dated 30. 6. 2008, before Udyog Bandhu, the Executive Engineer LESSA (CESS) (I) Lucknow admitted that the arrears of bills from January, 1995 till April, 1997 were allowed to be paid in 9 instalments and that the petitioners had paid only Rs. 9,69,360/- in six instalments. Thus, this fact is beyond any doubt that the facility to clear the bills of such period in instalments was allowed to the petitioners and they paid six instalments therein. 3. 3 Before me. the learned counsel and the Accountant of UPPCL disputed the payment of last instalment of Rs. 1,61,272/- which has been shown in the claim statement of the petitioners to have been paid on 29. 12. 1997 vide receipt No. 01/288425. This payment has been made through Bank Draft. The UPPCL in Annexure-24 to their claim statement has submitted an extract of ledger showing payments made by the petitioners and the said payment is duly recorded thereon. The Accountant of UPPCL, however, tried to prove his stand by pointing out to an entry dated 31. 12. 1997 which relates to receipt No. 29 and refers to bouncing of a cheque for Rs. 1,61,272/ -. But even if some cheque issued by the petitioners for Rs. 1,61,272/- for which receipt No. 29 was issued on 31. 12. 1997, had bounced, it would not make any difference on the claim of the petitioners because, the petitioners are not claiming any credit of the said cheque. The Accountant of UPPCL could not show any credit entries in the ledger corresponding to receipt No. 29 dated 31. 12. 1997. That being the position, it is a fact established that six instalments, one for Rs. 1,00,000. 00 and rest for Rs. 1,61,272/- were paid by the petitioners against the dues of Rs. 14,14,037. 03 P. of the CESS period. This leads to balance of Rs. 5,07677/- which has been incorrectly shown in the claim statement of the petitioners at page No. 10 as Rs. 4,81,815. 17 P. 3. 4 From the pleading of the parties and also after examining the order dated 2. 2. 1995 of the Secretary CESS (Annexure-2 to the claim statement of the UPPCL), it is evident that there was some dispute between the petitioners and the CESS with regard to the dues amounting to Rs. 7,69,653 which has been shown in the bill No. 160 dated 09. 06. 1997 issued by the UPSEB as disputed amount. While the petitioners were claiming that they were entitled to adjustment of Rs. 2,70117. 24 P. (as per details given at page No. 11 of the claim statement of the petitioners) towards power-cut enforced from the year 1972 onward, the stand of the CESS was that the petitioners were not entitled to any adjustment as claimed by them because, the Unit of the petitioners was a continuous process industry. The CESS authorities had, however, charged different amounts as low power factor for the month of July, 1992, October,1992, January, 1993, February, 1993 and also showed a balance of dues as Rs. 1,29,304/- from September, 1993 upto October, 1993. Further electric bills of November, 1994 and December, 1994 were shown as outstanding and after adjusting a payment of Rs. 32,421/- the total balance of Rs. 7,69,753/- was shown in this order dated 2. 2. 1995 of Secretary, CESS. 3. 5 This was shown as disputed amount in bill No. 160 dated 9. 6. 1997 issued by the UPSEB. 3. 6 A sum of Rs. 19,23,754. 47 P. was shown in the aforesaid bill No. 160 as arrears of surcharge upto 31. 5. 1997 on the aforesaid amount of Rs. 7,69,753. 10 P. 3. 7 The petitioners contention has been that the CESS had calculated the late payment surcharge (LPS) in a compounding manner whereas, it was to be calculated simply on the amount of outstanding electric consumption bills. 3. 8 Looking to this controversy, the UPSEB while permitting payment in instalments of the undisputed amount of Rs. 14,14,037. 03 P. put the realisation of the remaining amount in abeyance till the decision by the liquidator/competent authority. The bill No. 1593 dated 1. 12. 1997 (page No. 31 in Annexure-2 to the claim statement of the petitioners), bears an endorsement that a sum of Rs. 27,64,587. 09 P. is the amount to be under inoperation and showed it as the amount pending since CESS period. Bill No. 1303 dated 3. 11. 1997 a copy of which has been filed by the petitioners, showed a sum of Rs. 7,69,753. 10 P. as amount of arrears, Rs. 19,78,179. 33 P. and Rs. 16,704. 66 P. as amount due to late payment surcharge. Sum of these three items amounts to Rs. 27,64,637. 09 P. The petitioners have pointed out that there was a clerical error of Rs. 50/- in calculating this amount and, therefore, a sum of Rs. 27,64,587. 09 P. has been shown in bill dated 1. 12. 1997 as disputed amount put in abeyance. 3. 9 Admittedly, the petitioners have not paid to the UPSEB bills for the month of November, 1997, December, 1997 and January, 1998. The total amount of these bills excluding a sum of Rs. 1,87,178. 54 P. charged as late payment surcharge thereon, comes to Rs. 7,90,584. 66p. (as shown on page No. 10 of the claim statement of the petitioners ). 3. 10 The petitioners claimed that they had cleared the bills for May, 1997 to October, 1997 (both inclusive ). The bill for September, 1997 which was issued on 1. 10. 1997 was for Rs. 4,29,553. 24 P. i. e. , Rs. 3,29,450/- of electric bill plus Rs. 73,546. 86 P. as arrears of LPS and Rs. 26,565. 55 P. of current LPS. The learned counsel for the UPPCL on the information given by the Accountant, claimed that this amount was not paid by the petitioners. The bank draft submitted by them was got cancelled and the amount was credited back to the petitioners' account. Learned counsel for the petitioner conceded to this. 3. 11 Making the above adjustment in the outstanding dues of the period of UPSEB till January, 2008, the total amount as per admission of the petitioners, of the outstanding against them would come to Rs. 9,77,762. 86p plus Rs. 4,29,553. 24 P. equal to Rs. 14, 07,316. 10p. i. e. , 11,20,034/- of bill+ 2,87,282 as surcharge. 3. 12 Admittedly, the electricity supply to the petitioner was permanently disconnected on 12. 1. 1998. 3. 13. The petitioners' contention is that the amount, recovery of which was put in abeyance i. e. , Rs. 27,64,637. 09 P. was not realisable till the dispute between the parties was resolved by the liquidator or the competent authority. History of the present controversy:- 4. 1 As per the facts disclosed by the UPPCL in their claim statement, a bill for Rs. 19,15,929. 29 P. was raised by the CESS against the petitioners as dues upto 1994. Since there was a controversy as to the claim of the petitioners with regard to power-cut enforced by the CESS and low power factor charge, claimed by the CESS, the petitioner filed Writ Petition No. 3503 (M/b) of 1994 wherein direction was given to the Secretary CESS to decide the representation of the petitioners. The Secretary decided the representation on 2. 2. 1995 in which a sum of Rs. 7,69,753/- has been shown as due towards the low power factors for the different months plus electricity bills for November and December, 1994. The total liability of the petitioner including other dues was calculated to be above Rs. 22,00,000. 00. Since the petitioners failed to make payment, a recovery certificate was issued by the department and the petitioners filed Writ Petition No. 2619 (M/b) of 2002 before this Hon'ble Court. A direction was given to the General Manager Lucknow Electricity Supply Undertaking to decide the controversy and the said authority on 10. 7. 2002 determined that a total of sum of Rs. 53,72,006. 87 P. was recoverable from the petitioners. This included a sum of Rs. 1,36,915/- charged towards dismantling of the electric line. Since the petitioners were demanding that details of the amounts shown outstanding against them be supplied to them, they were supplied the same under the orders of the General Manager on 10. 7. 2002 (a copy of which has been filed as Annexure-1 to the claim statement of the petitioners ). The details shown in this statement, show a sum of Rs. 24,32,036. 52 P. as payment due towards late payment surcharge. The total amount shown against the petitioners in July, 2002 was thus, Rs. 53,71,988. 87 P. Adding Rs. 18/- in this amount as notice charges, the total amount found by the General Manager due against the petitioners was Rs. 53,72,006. 87 P. 4. 2 While the General Manager LESU had given his decision on 10. 7. 2002, the petitioners were not satisfied because the General Manager had accepted the figures given by the Executive Engineer concerned without examining their merit. The petitioners, therefore, filed other writ petition in the High Court, made an attempt to settle the dispute under the Arbitration and Conciliation Act and also approached other authorities including Udyog Bandhu. 4. 3 While all this was going on, the UPPCL came out with a One Time Settlement (OTS) offer for consumers having dispute with regard to correctness of bills. Annexure-4 to the claim statement of the petitioners is the copy of the order dated 30. 5. 2003 offering one time settlement after correction of disputed electric bills and waiver of late payment surcharge. It provided that late payment surcharge due against the bills upto 31. 3. 2003 shall be waived. The petitioner got themselves registered under the said scheme and applied for the said waiver. The UPPCL, after considering the case of the petitioners found that the petitioners were entitled to waiver of late payment surcharge of Rs. 18,73,474. 61p. Only, which was equal to 35% of the outstanding amount of Rs. 53,72,006. 87 P. mentioned above. A bill for Rs. 34,98,532. 26 P. was thus, raised against the petitioners. The petitioners were given opportunity to make payment in instalments. They paid the first instalment of Rs. 9,00,000. 00 but simultaneously, disputed the correctness of the bill raised as a consequence of OTS. Paper No. 63 and 64 with the claim statement of the UPPCL, is the copy of the letter sent by the petitioners to UPPCL on 29. 11. 2003 claiming that a sum of Rs. 1,36,915/- has been wrongly charged as dismantling charges and the late payment surcharge calculated by UPPCL at Rs. 18,73,476. 61 P. was far less than the actual amount of late payment surcharge which was calculated in the bill and for which the petitioners were entitled to 100% waiver. While this controversy was still pending, the UPPCL came up on 15. 4. 2004 with an extended offer of OTS in light of earlier offer dated 30. 5. 2003. The petitioners finding that their grievance has not been redressed, got themselves registered afresh for OTS. The UPPCL after adjusting a sum of Rs. 9,00,000. 00 paid as first instalment and Rs. 1,00,000. 00 more paid by the petitioners, raised a bill for Rs. 43,71,986/ -. Since the contention of the petitioners about cent per cent waiver of late payment surcharge and unjustified charges towards dismantling of the electric line were not accepted, the petitioners did not make the payment. Ultimately, a recovery certificate was again issued to the Collector on 5. 5. 2007 for a sum of Rs. 4362,029/- for which the present writ petition has been filed before the Hon'ble High Court after having gone to other authorities for relief. 4. 3 It is admitted by the UPPCL that the petitioners have already deposited a sum of Rs. 25,00,000. 00 against claimed dues of Rs. 53,72,006/ -. The balance amount due from the petitioners as per the UPPCL version, is Rs. 28,62,006/- The petitioners, however, claimed that they have paid much more amount than the actual due from them and the amount of Rs. 25,00,000. 00 shown to have been paid by them is in fact Rs. 25,,11,000/- as a sum of Rs. 10,000/- and a sum of Rs. 1,000/- were deposited by them in the year 2003 and 2004 respectively for availing OTS offer. 4. 4 The UPPCL has further claimed that a sum of Rs. 66,49,746. 62 P. has further become due against the petitioners on account of delayed payment/interest etc. They thus, claimed Rs. 95,11,775/- from the petitioners.
(3.) THE Points for Consideration:-- 5. . 1 Following are the points for determination as suggested by the parties in the proceedings dated 27. 9. 2008: 1. Whether the amount of Rs. 7,69,753. 10 P. shown due since period of CESS is the amount of late payment surcharge or it is the amount relating to low power factor and unpaid bills for November, 1994 and December, 1994. In any case, its effect on the claim of the parties. 2. Whether the amount of Rs. 14,14,037. 03 P. which was due towards electric bills of CESS period was allowed to be paid in instalments. If so what is the amount petitioners have paid and what is amount remaining unpaid. 3. Whether the petitioners have in fact paid a sum of Rs. 4,14,453. 99 P due towards electric bills for the month of April, 1997 as claimed by them. 4. Whether a sum of Rs. 4,29,553/- claimed by the petitioners to have been paid by Bank Draft after dishonouring of cheque was in fact not paid and the Draft No. 005464 of the Oriental Bank of Commerce, Sitapur Branch payable at Lucknow was got cancelled by the petitioners and the amount was credited in their own Account No. 1271. 0 5. Whether the respondents are claiming any amount as surcharge on surcharge. Whether the petitioners were entitled to waiver of 100% "late payment surcharge" amount or was it subject to maximum ceiling of 35% of the total bill including surcharge and its effect on OTS offer.;