Ashok Bhushan, J. - (1.) HEARD Sri M. L. Lahoty advocate assisted by Sri B. C. Roy, learned counsel for the petitioner, Sri K. R. Sirohi, learned senior advocate assisted by Smt. Mridul Tripathi appearing for respondents No. 2, 3 and 4 as well as learned standing counsel representing the respondent No. 1.
(2.) COUNTER - affidavit and rejoinder - affidavit have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being finally decided. Brief facts of the case as emerged from the pleadings of the parties are that the petitioner is a public limited company engaged in manufacture and sale of two wheelers, scooters and motorcycles having its registered office at Panaki Industrial area Kanpur. The company obtained power load from the Kanpur Electric Supply Administration (K.E.S.A.) which was extended from time to time and in the year 2006, the sanctioned load of the company was 8 M.V.A. from 132 K.V. line. Due to shift in preference of consumers for 4 strokes motorcycles over 2 stroke scooters, the production of scooters of L.M.L. fell down. The company started restructuring its business and took initiative to manufacture 4 stroke motorcycles, but due to the market conditions it incurred substantial loss. Apprehending that its work force of 6000 directly would be adversely affected, the company represented to the State Government for declaring L.M.L. as 'relief undertaking' under Section 3 (1) of the U. P. Industrial Undertaking (Special Provisions for Prevention of Unemployment) Act, 1966. Notification was issued by the State Government on 24.6.2004 suspending for a period of one year all contracts, agreements, other instruments etc. in force under any law, which was subsequently extended for two successive years up to 23.6.2007. An illegal strike was called on 27.2.2006 disrupting the operations of the company ultimately leading to the declaration of lockout on 7.3.2006. Due to strike and lockout, all the manufacturing activities came to a halt. The petitioner realizing that load of 8 M.V.A. is not at all required moved a formal application dated 31.3.2006 requesting the K.E.S.C.O. for reduction of contracted load from 8 M.V.A. to 1.25 M.V.A. In the application, it was prayed that load reduction be made effective from 1.4.2006. There being urgency in the matter, the company also wrote to the Principal Secretary, Energy, Government of U. P. informing that load reduction from 8 M.V.A. to 1.25 M.V.A. is extremely necessary. On 19.4.2006 a meeting took place between the K.E.S.C.O. and the petitioner company in which decision for reduction of load was taken with certain conditions. On 19.4.2006, the K.E.S.C.O. conveyed to the U. P. Electricity Regulatory Commission regarding its agreement for reduction of load and sought the formal approval of U.P.E.R.C. The U. P. Regulatory Commission considered the matter on 26.4.2006 and conveyed its order dated 8.5.2006. The Commission did not raise any objection regarding decision of load reduction. However, it observed that agreement which has been reached between the parties are internal to the parties and the same has to be strictly in accordance with the Electricity Supply Code, 2005. After the aforesaid order of the U.P.E.R.C., the petitioner on 17.5.2006 wrote to the K.E.S.C.O. to reduce the load w.e.f. 1.4.2006 as per the application dated 31.3.2006. The letter dated 21.6.2006 was also written to the Principal Secretary, Energy that the load reduction had not been given effect to although it was expressly agreed upon.
(3.) THE electricity bill for the month of May, 2006 based on 8 M.V.A. load was given to the petitioner on 7.6.2006. THE petitioner immediately sent a letter on 7.6.2006 protesting that bill amount has been inadvertently raised on 8 M.V.A. load, whereas there is already agreement for load being 1.25 M.V.A. THE petitioner paid the bill on the basis of 1.25 M.V.A. load. THE company also invoked the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to 1985 Act). THE reference was registered as Case No. 80 of 2006 on 15.9.2006 and thereafter on 8.5.2007, L.M.L. was declared as sick industrial company under Section 6 (3) (o) of the 1985 Act. THE I.D.B.I. Bank was appointed as operating agency. On 4.10.2006, K.E.S.C.O. has written a letter to the petitioner for submitting the bank guarantee for the arrears of the amount as per the Clause 4.49 of U. P. Supply Code, 2005 so that action may be taken to reduce the load from 8 M.V.A. to 1.25 M.V.A. THE petitioner wrote to the K.E.S.C.O. on 11.10.2006 that as per agreement, the petitioner is paying the energy bill on the unit consumed without any default. THE company also informed that payment of arrears of electricity dues will be finalised after restoration of normal work of the factory taking into consideration the order dated 13.7.2005 of U.P.E.R.C. read with the order dated 8/9.5.2006. THE company decided to recommence in a small way its manufacturing activities and, accordingly it requested K.E.S.C.O. on 11.3.2007 to increase the contracted load from 1.25 M.V.A. to 2.25 M.V.A. On 20.3.2007 K.E.S.C.O. conveyed to the petitioner that its load reduction application could not be considered due to non-submission of the bank guarantee by the petitioner. An application dated 19.4.2006 was moved by the petitioner being Application No. R-919/2007 to U.P.E.R.C. praying for suitable order directing K.E.S.C.O. to comply with the agreement dated 19.4.2006 and the order dated 8.5.2006 passed by the U.P.E.R.C. On 3.8.2007, a settlement with regard to payment of arrears was arrived noticing the proposal of the petitioner that in first step three cheques of Rs. 25 lacs each were to be given by the petitioner against the arrears and w.e.f. August, 2007 apart from monthly bill of Rs. five lacs be deposited towards arrears. U. P. Power Corporation Ltd. accepted the settlement as proposed on 3.8.2008 by letter dated 8.8.2007. THE B.I.F.R. (Board for Industrial and Financial Reconstruction) where the petitioner unit was registered as sick unit held various proceedings dated 22.10.2007, 19.8.2008, 6.2.2009, 21.4.2009, 19.6.2009 and 30.7.2009. On 22.10.2007, the B.I.F.R. directed that K.E.S.C.O. would continue to accept Rs. 5 lacs per month against their arrears besides payment of current electricity bill on actual consumption basis and not to adopt to coercive measures to disconnect electricity supply. On 6.4.2009, a disconnection notice was issued by the K.E.S.C.O., against which Writ Petition No. 20499 of 2009 was filed by the petitioner, in which writ petition an interim order was granted by this Court on 22.4.2009 directing that in case, the petitioner continues to pay the amount as directed by the B.I.F.R. its electricity supply will not be disconnected. THE said writ petition is still pending. The petitioner's claim for reduction of load from 8 M.V.A. to 1.25 M.V.A. w.e.f. 1.4.2006 not being decided or implemented, the petitioner has filed this writ petition for following reliefs : "(I) pass appropriate writ, order or direction directing that the load of L.M.L. stood reduced from 8 M.V.A. to 1.25 M.V.A. pursuant to the then prevalent provisions of Clause 4.41 (b) of the Code, 2005 w.e.f. 1.4.2006, 2.25 M.V.A. w.e.f. April, 2007 and 2.50 M.V.A. w.e.f. August, 2007. (II) Pass appropriate direction to U.P.E.R.C./respondent No. 4 to decide the pending Application No. R-919 of 2007 dated 20.3.2007 pertaining to compliance of its own order dated 8.5.2007; (III) Pass other or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case." ;