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Judgment
Poonam Srivastav, J.—In the instant writ petition, the Petitioner has challenged the energy bill issued by the Respondents for certain period for the months of September, 2005 and October, 2005. The grievance of the Petitioner regarding the disputed demand is on account of the reason that the Petitioner - M/s. Gautam Ferro Alloys, have not utilised energy during the said period as the Petitioner Company was shut down and sealed, at the instance of the Jharkhand State Pollution Control Board, Ranchi. The closure was a force majeure and therefore, Petitioner can not be held liable.
Facts giving rise to the dispute is that the Petitioner is a consumer of the Respondents and a contract was entered into for supply of energy 5100 KVA, Company is involved in manufacturing Silicon Manganese and Ferro Alloys. The contesting parties executed a Power Supply Agreement on 25.02.2003 which is on record. The agreement executed between them was relating to supply of energy to the Petitioners subject to the terms and conditions incorporated in the contract (agreement).
Some disputes between the parties ensued and the Jharkhand State Pollution Control Board directed the Petitioner to shut down all its Unit vide order dated 20.12.2004 in terms of Section 31A of the Air (Prevention and Control) Act, 1981. The said order was challenged in the Writ Petition being W.P. (C) No. 5033 of 2005, during the pendency of the said writ petition, the Petitioner''s factory was sealed on 3rd September, 2005. The closure of the factory was duly informed to the concerned authority of the Respondent No. 1.
The Petitioner was served with an energy bill for the complete month of September, 2005 on the basis of monthly guarantee energy charges. The Petitioner made payment after calculating the amount on the basis of actual consumption of fuel charges as per the recording of the meter and also the demand charges on prorata basis for the period from 1st September to 3rd September, 2005.
The aforesaid writ petition [W.P. (C) No. 5033 of 2005] was heard on 25.10.2005 on the question of interim relief. The authorities of Pollution Control Board were directed to remove the seal within three days from the date of the order. Consequent thereto, the seal was removed on 27.10.2005.
The Respondents were already communicated regarding the seal on the factory and also the subsequent order of reopening the seal. Consequently, the Petitioner resumed its normal manufacturing activities on 27.10.2005.
The Respondents issued power supply bill for the month of October, 2005, also based on monthly minimum guarantee charges though the factory was closed from 3rd September, 2005 till 26th October, 2005. It is brought to my notice that the Petitioner made the payment after calculating the charges for the actual consumption of energy, fuel surcharge etc. The payment was duly made for the month of October, 2005 on the basis of recorded consumption. Thereafter, the Petitioner preferred its claim under Clause 4 of the Power Supply Agreement on 27.12.2005 [Annexure-10 to the writ petition]. The challenge was in respect of the demand made by Respondents for the period when the Company was not functional on account of the seal put by the Jharkhand Pollution Control Board.
After seven months, the claim of the Petitioner was rejected for the reason that the Petitioner had violated the pollution control norms and, therefore, their grievance is not covered under Clause 4 of the bilateral agreement entered into between the parties.
Representation was made against the said order rejecting the Petitioner''s claim that the closure was a case of force majeure. The representation was examined and once again, it met the same fate and the information was given about its rejection on 1st November, 2006.
An appeal was preferred before the Chairman, Damodar Valley Corporation, Kolkata on 17.11.2006. The Member, Board of Revenue along with its other members gave its conclusion that the sealing of the factory premises as well as the order of the Chairman, Jharkhand State Pollution Control Board, Ranchi was illegal and the said order was set at naught on 05.12.2006 holding the act of the Respondents as well as the rejection of the claim under Clause 4 of the bilateral agreement was against law.
Once again a representation was made before the Respondents - Corporation vide letter dated 18.12.2006 reiterating its claim along with the copy of the order of the Chairman, Board of Revenue, Kolkata.
A query was made by the Respondents from the Petitioner vide letter dated 06.09.2007 whether any appeal has been preferred by the Jharkhand State Pollution Control Board against the order of the Board of Revenue dated 05.12.2006. The Petitioner was also required to produce a certificate to the said effect from the Pollution Control Board regarding the fact whether any appeal was preferred or not. An application was moved before the Jharkhand State Pollution Control Board on 16.08.2006 at the instance of the Petitioner making a query that whether an appeal has been preferred or not. It was confirmed on 23rd August, 2008 that the order dated 05.12.2006 has not been challenged anywhere and it has attained finality.
Once again a letter was written by the Petitioner on 29.08.2008 informing the Respondent - Corporation about the fact that the order of Board of Revenue has not been challenged anywhere.
In spite of the claim pending since such a long time and the fact that the order of the Board of Revenue has become final, no action was taken by the contesting Respondents despite several representations at the behest of the Petitioner. The Respondents have declined to recognise any claim of the Petitioner.
Heard Mr. Nitin Pasari on behalf of the Petitioner and Mr. Srijit Choudhury on behalf of the Damodar Valley Corporation.
Counter and rejoinder affidavits have been exchanged and as agreed between the respective counsels, the writ petition is being decided finally.
Counsel appearing on behalf of the Respondents has disputed the arguments of the Petitioner primarily on the question of maintainability of the writ petition in view of the existence of an arbitration clause in the agreement. The agreement has been annexed with the writ petition as Annexure-1.
Mr. Srijit Choudhury has placed Clause 24 of the said agreement which speaks that whenever any dispute or any difference arises, it shall be referred to three Arbitrators and the dispute will be resolved in accordance with Arbitration and Conciliation Act, 1996.
The next objection is that the question of force majeure cannot be decided in exercise of jurisdiction under Article 226 and therefore, the submission is that the writ petition is liable to be dismissed on the ground of preliminary objection itself.
After hearing both respective counsels at length and going through the records, apparently the dispute relates to payment of energy bill for the period 3rd September, 2005 to 27th October, 2005.
Evidently, the Petitioner - Company has started functioning on the strength of the interim order and it has been admitted before the Court that the Company is being run without any interference by the Respondents. The current bill is regularly paid and there is no dispute so far present stage is concerned. However, the dispute regarding payment of bill from 3rd September, 2005 to 27th October, 2005 is still undecided and the Petitioner - Company apprehends that action may be taken any time and this would cause heavy loss to the Petitioner Company, besides the national loss that will likely to accrue. Pendency of the aforesaid dispute raises a number of misapprehensions to the Petitioner.
So far the objection regarding existence of arbitration clause is concerned, reliance has been placed on a decision of the ABL International Ltd. and Another Vs. Export Credit Guarantee Corporation of India Ltd. and Others, . Apex Court has taken into consideration the question of maintainability of a Writ Petition under Article 226 of the Constitution of India in matters relating to contractual application by an aggrieved party and existence of Arbitration Clause in an agreement.
The Supreme Court was of the view that in a given set of facts, if a State acts in an arbitrary manner even in a matter of contract, an aggrieved party can very well approach the Court by way of a writ under Article 226 of the Constitution of India. Even in a case where an arbitration clause is in existence and forms a part of the agreement, it is a question to be decided on the fact of each case and it is well within the right of the High Court to consider and decide the effect of existence of such a clause as a complete bar.
In the instant case, in my view, the question that arises is only payment of energy bill for a limited period of September and October, 2005. The question that is to be seen that whether it is a case of closure by of force majeure as already been decided by the Board of Revenue, Ranchi in favour of the Petitioner, the said order has not been challenged and is final. Thereafter, a number of representations/requests/reminders have been made to the Respondents but for reasons best known to them, the matter has not been decided so far. The question of force majeure is not an event at the instance of Respondent but a third person, Pollution Control Board. In the instant case the Pollution Control Board is not a part to the agreement between Petitioner and Respondents. Another competent authority has decided the question which is unchallenged and therefore, existence of Arbitration Clause is immaterial.
Learned Counsel for the Petitioner has indicated from the Paper Book that Annexure-18 is a letter dated 28.08.2007, issued by the Deputy Chief Engineer (Commercial), Damodar Valley Corporation to the Managing Director of the Petitioner - Company asking for certain documents showing the acceptance of the order dated 05.12.2006 by the Jharkhand State Pollution Control Board without filing any appeal against the order of the Member, Board of Revenue.
This was duly replied on 06.09.2007 bringing the fact to the notice of the Deputy Chief Engineer (Commercial), Damodar Valley Corporation, Commercial Department that the judgment dated 05.12.2006 by the Member, Board of Revenue has attained finality.
Despite this, a certificate was asked from Jharkhand State Pollution Control Board declaring that the said order has not been challenged and the order of the Board has been accepted. Such certificate was not made available to the Petitioner despite running from pillar to post and finally, he applied for an information u/s 5 of the Right to Information Act, 2005 on 16.08.2008 seeking information by means of a letter as contained in Annexure-21 to the writ petition and the information given by the Jharkhand State Pollution Control Board dated 23.08.2008 (Annexure-22). It is a definite information that no appeal has been preferred by the Pollution Control Board and this information was conveyed to the Chief Engineer, Damodar Valley Corporation vide letter dated 29.08.2008 [Annexure-23 to the writ petition] fully substantiates that the Petitioner has taken every step and requested the Respondents to decide the claim of the Petitioner under Clause 4 of the agreement.
So far the bar of existence of Arbitration clause in the agreement is concerned, Clause 24 of the agreement deals with the Arbitration Clause.
Clause 24
If at any time question, dispute pr difference between the Corporation and the Board in regard to any matter relating to or in connection with this Agreement, barring any such which may arise in the Corporation''s exercising power or doing acts under the provision of Damodar Valley Corporation Act, 1948 (Act XIV of 1948) or under any other Act for the time being in force or under the terms of this Agreement, either party may forthwith give to the other in writing to the existence of such question, dispute or differences and the same shall be referred to the three Arbitrators, one to be appointed by each party hereto and the third Arbitrator to be appointed by the Arbitrators appointed by each party as, presiding Arbitrator for adjudication of dispute in accordance with the Arbitration and Conciliation Act, 1996 or any statutory modification thereof the time being in force. The cost of Arbitration so agreed to by and between the parties, shall equally be borne by both the parties.
Provided that in case of any such reference it will be obligatory on the consumer to make full payment of all arrear dues along with surcharge, if any, and current dues and any other dues to the Corporation beforehand and continue paying such dues which may accrue from time to time within the period as mentioned in the foregoing clauses so long the Arbitration is pending, Should the consumer be held entitled to any return it will be credited by the Corporation afterwards on receiving the Award of the Arbitration and after having accepted by the Corporation such award and will be through subsequent bills in the form of adjudication in a manner to be decided by the Corporation.
Thus, once again at the cost of repetition, I hold that since the dispute does not relate to the conditions of agreement, the Corporation was liable to decide Petitioner''s representation without further query and irrespective of aforesaid Arbitration Clause.
The Petitioner is ready to make over the payment whatever remains otherwise, according to its own calculation, the money has been deposited, however the Petitioner has stated that he is ready to deposit all the dues after a just decision by the Respondent.
Counsel for the Respondents has cited decisions of the Apex Court in support of the contention that in a contractual matter, the High Court should not interfere in exercise of writ jurisdiction under Article 226 of the Constitution of India.
I have perused the decisions and citations and also carefully gone through the principles laid down by the Supreme Court. But my considered view is that none of the decisions impose a complete bar on the writ Petitioner to seek its remedy under Article 226 of the Constitution of India.
In the facts and circumstances, the writ petition is disposed of with a direction to the Respondents - Damodar Valley Corporation to decide the claim of the Petitioner made by them regarding adjustment of the energy bill for the periods from 3rd September, 2005 to 27th October, 2005 vis-a-vis Clause 4 of the agreement, within a period of four weeks from the date a certified copy of this order is produced before him failing which, the Respondents would not be entitled to take any coercive measures against the Petitioner. The claim shall be decided within the stipulated period as provided hereinabove in presence of the Petitioner and after giving them a proper opportunity of hearing.
It is made clear that this Court cannot enter into realm of making calculations vis-a-vis the period for which the energy has been utilised. The factual aspects cannot be decided by this Court and therefore, the Respondents are to proceed and decide the matter in accordance with the decision of Member, Board of Revenue, Ranchi dated 05.12.2006. In the event Petitioner is required to pay any arrears, he shall do so within a reasonable period fixed by Respondent Corporation.
With the aforesaid observations and directions, this writ petition stands finally disposed of.