ASHOK BHUSHAN,J. - (1.) HEARD Sri B.C. Rai, learned counsel for the petitioners and Sri Ravi Kant, Senior Advocate, assisted by Sri Pankaj Kumar Shukla for the Paschimanchal Vidyut Vitran Nigam Limited (hereinafter referred to as the Corporation).
(2.) BOTH the writ petitions raise similar issues and have been heard together. Pleadings in Writ Petition No.30363 of 2009 (hereinafter referred to as the first writ petition) are complete and counsel for the parties agree that both the writ petitions be finally decided. Brief facts giving rise to this writ petition are; the petitioner was sanctioned, in the year 1997, load of 97 KVA by U.P. State Electricity Board. An assessment dated 12th April, 1999 was made against the petitioner alleging theft of electricity for an amount of Rs.8,38,998/-. The appeal filed by the petitioner against the said assessment was dismissed by the Regional Appellate Committee on 29th April, 2000 against which petitioner filed a writ petition being Writ Petition No.29916 of 2000. An interim order was passed by this Court on 14th July, 2000 directing for restoration of supply subject to petitioner depositing Rs.4,00,000/- with stipulation that petitioner would continue to deposit the current bills. The petitioner deposited an amount of Rs.4,00,000/- within the stipulated time and thereafter continued to deposit the current bills issued from time to time. Writ Petition No.29916 of 2009 is said to be pending. An application was made by the petitioner on 18thFebruary, 2009 for enhancement of contracted load from 97 KVA to 150 KVA. The enhancement of load was sanctioned vide order dated 15th April, 2009. The terms and conditions were issued vide order dated 16th April, 2009 demanding an amount of Rs.2,97,800/- as line charges and security etc. The petitioner deposited the said amount and an agreement for supply was also submitted by the petitioner. The petitioner filed a writ petition being Writ Petition No.30363 (the first writ petition) praying for quashing Condition No.5 in the order dated 15th April, 2009, which required that the provisions of the U.P. Electricity Supply Code 2005 be strictly complied with. A direction was also sought for releasing the additional load. The writ petition was filed on 17th June, 2009. A letter dated 23rd June, 2009 was issued to the petitioner asking him to provide bank guarantee of an amount of Rs.23,17,038/- as required by Clause 4.49 of the U.P. Electricity Supply Code 2005. Writ Petition No.32562 of 2009 has been filed by the petitioner praying for following relief:- "(I) issue a writ, order or direction in the nature of writ of certiorari calling for the records and to quash the impugned order dated 23rd June, 2009 (Annexure-1 to the writ petition) passed by the Respondent No.2; (II) pass appropriate writ, order or direction declaring Clause 4.49 of Code, 2005 to the extent it provides to furnish Bank Guarantee as ultra-vires being unconstitutional; (III) issue writ order or direction in the nature of mandamus commanding the Respondent No.2 to release the additional load of Petitioner Company without asking the petitioner Company to furnish Bank Guarantee of astronomically inflated figure of Rs.23,17,038/-."
(3.) A counter affidavit has been filed by the Corporation in Writ Petition No.30363 of 2009 (first writ petition) referring to provisions of Clause 4.43 and 4.40 of the U.P. Electricity Supply Code 2005 justifying the demand of bank guarantee for releasing the enhanced load. It is stated in the counter affidavit that since the amount assessed against the petitioner is stayed by interim order of this Court dated 14th July, 2000, the additional load can be released only on submission of the bank guarantee for the amount along with surcharge. It has been stated that petitioner having not fulfilled the condition of Clause 4.43(a)(iv) of U.P. Electricity Supply Code 2005, the load has not been released. Sri B.C. Rai, learned counsel for the petitioner raised following submissions in support of the writ petitions:- 1. Clause 4.49 of U.P. Electricity Supply Code 2005 is ultra vires, it being beyond the matters provided under Section 50 of the Electricity Act, 2003. It is submitted that Section 50 of the Electricity Act, 2003 empowers the State Electricity Regulatory Commission to provide for recovery of the electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non payment thereof, restoration of supply of electricity, measures for preventing tampering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meters and it does not include any power to demand a bank guarantee for an amount, which has been stayed by this Court, hence Clause 4.49 is beyond the ambit of Section 50 and is ultra vires to the Act. 2. Section 181(2) of the Electricity Act, 2003 empowers the State Electricity Regulatory Commission for framing regulations determining fiscal liabilities under Section 45, 46 and 47 of the Act, therefore, items covered under the different heads under Section 181(2) of the Electricity Act, 2003 clearly exclude exercise of such power under Section 50 of the Electricity Act, 2003. The regulation making power under Section 181(2) stands on a high pedestal in respect of subject matter engrafted under Clauses (p), (q), (r), (s), (t), (u), (v) and (w). The State Electricity Regulatory Commission could not have bring the above items within the net of U.P. Electricity Supply Code. 3. The assessment amount having been stayed by this Court by order dated 14th July, 2000, which interim order is still continuing, an order asking for submission of bank guarantee to cover the said amount is interference with the High Court's power of judicial review and the provisions of Clause 4.49, which abridges the Court's order deserves to be struck down. 4. Clause 4.49 of U.P. Electricity Supply Code 2005 is ultra vires to the provisions of Sections 127(2) and 127(6) of the Electricity Act, 2003 read with Clause 6.8(d)(iv) of U.P. Electricity Supply Code 2005. The Clause 4.49 is also ultra vires to Section 56(2) of the Electricity Act, 2003. ;