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Judgment
Z.A. Haq, J.—Heard Shri T.D. Mandlekar, learned Advocate for the petitioner and Shri R.E. Moharir, learned Advocate for the respondent Nos. 1 and 2.
After the matter was almost heard, the petitioner has submitted an additional affidavit. It cannot be permitted at this stage as the respondents will have to be granted opportunity to file counter and it cannot be granted after hearing is over.
The petitioner-company has filed this petition challenging the order passed by the Consumer Grievance Redressal Forum, Maharashtra State Electricity Distribution Company Limited, Nagpur Zone (Rural), Nagpur, rejecting the claim of the petitioner-company for bulk discount. The petitioner-company has also challenged the order passed by the Electricity Ombudsman, confirming the order passed by the Redressal Forum.
The petitioner-company is a manufacturing unit at Bhugaon, District Wardha and consumer of the respondent No. 1. The petitioner-company claims the bulk discount as per the tariff order issued by the Maharashtra Electricity Regulatory Commission (hereinafter referred to as "MERC"). The MERC, in exercise of the powers vested in it by Section 29 of the Electricity Regulatory Commission Act, 1998, vide order passed in Case No. 1/99 on 05-05-2000, determined the tariff for supply of electricity after considering the proposal of the Maharashtra Electricity Board (hereinafter referred to as the "Electricity Board"). Clause 1.46.2 of this order dealt with conditions for giving bulk discount to the consumers of a particular category. It laid down that the consumption of any industrial consumer (availing TOD tariff and having no disputed arrears with the Electricity Board) exceeded one million unit per month, the consumer would get rebate of one percent on its energy bill (excluding fuel adjustment charge, demand charge, electricity duty, etc.) for every one million unit consumption above one million unit subject to maximum of five percent. The entitlement of the bulk consumer for this rebate was allowed only if the bill was paid within seven days from the date of the bill.
The MERC modified the order dated 05-05-2000 on 23-10-2000 and laid down that the rebate (bulk discount) would be allowed to the industrial consumer whose consumption exceeded one million unit per month, only if the bill was paid within seven days from the date of the bill or within five days from the date of receipt of the bill by the consumer, whichever was latter.
The petitioner-company had filed an application under Regulation No. 83 of the Maharashtra Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 before the MERC (Case No. 7/2001) claiming bulk discount incentives due under the tariff order dated 05-05-2000. The petitioner-company claimed that it was entitled for the bulk discount incentives for the period from 01-05-2000 till June 2001. The claim of the petitioner-company was opposed by the respondent No. 1 on the ground that the petitioner was not paying the bills within seven days and therefore, it was not entitled for the bulk discount incentives. The petitioner-company relied on the case of Sunflag Iron and Steel Company, Nagpur which was given the benefit of bulk discount though it was in arrears of the amount of bills. It was brought on the record that Sunflag Iron and Steel Company, Nagpur and the respondent No. 1 entered into an agreement in respect of schedule of payment of the arrears and that company was paying its current bills alongwith arrears as per the agreement regularly. After considering the submissions made by the petitioner and the respondent No. 1, the MERC passed an order dated 04-09-2001 directing the respondent No. 1 to grant bulk discount incentives to the petitioner on the following conditions :
"(i) The MSEB should allow Bulk Discount Incentives to the petitioner (M/s. Lloyds Steel Industries Limited, Wardha) with effect from 1st May, 2000 subject to fulfillment of payment terms as agreed with them (MSEB).
(ii) The applicant shall submit the required agreement on Rs. 50 stamp paper for settlement of arrears as envisaged by the MSEB on or before 15th September, 2001.
(iii) The Bulk Discount Incentives availed of will be adjusted towards settlement of existing arrears so as to facilitate the normalization of the petitioner with respect to their liability towards the MSEB within one year (i.e. by September 2002).
(iv) After attaining the normal status, the petitioner shall be granted Bulk Discount Incentives subject to fulfilling the general terms and conditions of availing such incentives, as prescribed by the Commission in its Tariff Order dated 5th May, 2000 and subsequent Clarificatory Order dated 23rd October, 2000, which are presently in force. In the event of any change in tariff order in future, the relevant provision for availing such Bulk Discount Incentives shall become applicable."
In pursuance of this order passed by the MERC on 04-09-2001, the petitioner was given the credit of bulk discount for May 2000, June 2000, July 2000, October 2000, November 2000, December 2000, January 2001, March 2001 and April 2001. The petitioner-company could not pay the electricity bills for August 2001 and September 2001 and therefore, the respondent No. 1 served notice on the petitioner-company threatening disconnection of electricity supply. There were negotiations between the petitioner-company and the respondent No. 1 and the petitioner was given facility of paying the arrears in instalments, however, the respondent No. 1 obtained an undertaking from the petitioner-company that the petitioner-company will not claim bulk discount incentives as per the order passed by the MERC on 04-09-2001. After the terms were settled between the petitioner-company and the respondent No. 1 and the petitioner-company gave the undertaking as above, the respondent No. 1 had withdrawn the disconnection notice.
The MERC issued three tariff orders on 10-01-2002, 01-12-2003 and 10-03-2004 which contained the provisions regarding bulk discount incentives.
In between, the petitioner-company had not paid the monthly bills and therefore, its electricity supply was disconnected in March 2002. Again there were deliberations between the petitioner-company and the respondent No. 1 and an agreement was made on 20-03-2002. As per the terms of this agreement, the respondent No. 1 agreed to reconnect the electricity supply if the petitioner-company paid the reconnection charges and Rs. 0.50 Crore towards arrears, till 22-03-2002. The agreement provided that the petitioner-company shall pay the balance arrears in 50 instalments starting from April 2002 with interest at 12%. The petitioner was required to pay Rs. 50 Lakhs per month from April 2002 till September 2002 and then the EMI was to be worked out for clearing the arrears by May 2006. In addition, the petitioner was required to pay the current bills on due dates. The instalment was required to be paid till 23rd of the month in which it was due.
The dispute started at this stage. According to the petitioner-company, it was entitled for the bulk discount incentives for the period from March 2002 to May 2004 as it paid the current bill immediately and also paid the instalment on or before stipulated date as per the agreement dated 20-03-2002. According to the petitioner-company, it has made the payments of current bills and instalments on scheduled dates and in support of this, the petitioner-company has filed the chart at Annexure No. 28.
The submission on behalf of the respondent No. 1 is that the petitioner-company was not entitled for the bulk discount incentives for the period from 01-01-2002 till November 2003 as per the tariff order and the petitioner was not entitled for the bulk discount incentives from December 2003 onwards as it failed to pay the instalments on due dates.
Shri T.D. Mandlekar, learned Advocate for the petitioner-company has submitted that the petitioner-company is entitled for the bulk discount incentives as per the order passed by the MERC in Case No. 7/2001 on 04-09-2001. It is submitted that this order is passed by the MERC on the application filed by the petitioner-company before it, as a special case considering the financial condition of the petitioner-company at that time. It is submitted that as per the order dated 04-09-2001, the petitioner-company was entitled for bulk discount incentives if it fulfilled the payment terms as per the agreement. It is pointed out from the minutes of meeting held on 20-03-2002 (copy of which is at Annexure-9, Page 52 of the paper-book) that the respondent No. 1 had granted to the petitioner the facility of paying Rs. 50 Lakhs towards the arrears till 22-03-2002 and the balance amount of arrears was to be paid in 50 instalments starting from April 2002, the first six instalments from April 2002 till September 2002 being of Rs. 50 Lakhs per month and thereafter the EMI was to be worked out so that the dues were cleared till May 2006. It is pointed out from the minutes of meeting that the petitioner-company was required to pay the current bills on due dates and the instalment was to be paid till 23rd of the month in which it fell due. The learned Advocate has pointed out from the chart (at Annexure No. 28 of the paper-book) that the petitioner-company paid the current bill on due date and paid the instalment on or before the stipulated date. It is submitted that the petitioner-company having complied with the terms of the agreement, as reflected in the minutes of meeting held on 20-03-2002, it was entitled for the bulk discount incentives. The learned Advocate has submitted that the order passed by the MERC on 04-09-2001 has an overriding effect over the general tariff order passed by the MERC and the respondent No. 1 is illegally depriving the petitioner of its legitimate claim on the basis of the general tariff order which laid down that the bulk consumer will not be entitled for the bulk discount incentives if it is in arrears of the electricity charges. It is submitted that the respondent No. 1 cannot deprive the petitioner-company of its entitlement for the bulk discount incentives relying on the undertaking given on behalf of the petitioner on 29-09-2001 that the petitioner will not claim the bulk discount incentives. It is submitted that at that time the petitioner was facing the threat of disconnection of electricity supply and therefore, it had no option but to accept the conditions imposed by the respondent No. 1 for withdrawal of the disconnection notice. Shri T.D. Mandlekar, learned Advocate has submitted that the respondent No. 1 cannot plead that the petitioner-company had waived its right of claiming the bulk discount incentives by giving up the claim for it by the undertaking to that effect on 29-09-2001. It is submitted that the respondent No. 1 has not been able to establish on the record that the petitioner had waived its entitlement for bulk discount incentives. In support of the submission, reliance is placed on the judgment given in the case of M/s. Motilal Padampat Suger Mills vs. State of Uttar Pradesh and others reported in 1979 SCR (2) 641. It is submitted that the respondent No. 1 is bound to abide by the order passed by the MERC on 04-09-2001 and to make available to the petitioner-company the bulk discount incentives, as the petitioner has complied with the terms of the agreement with the respondent No. 1. In support of the submission, reliance is placed on the judgment given in the case of Union of India (UOI) and Others Vs. Indo-Afghan Agencies Ltd., .
Per contra, Shri R.E. Moharir, learned Advocate for the respondent No. 1 has submitted that the claim made by the petitioner- company is misconceived and based on misleading facts. It is submitted that the petitioner-company was given the bulk discount incentives for the period from May 2000 till April 2001. It is submitted that the petitioner-company was not given the bulk discount incentives from August 2001 to December 2001 as he had not abided by the terms and conditions agreed between the petitioner-company and the respondent No. 1. It is submitted that the petitioner-company was not entitled for bulk discount incentives from 01-01-2002 till November 2003 as per the tariff order. It is submitted that the petitioner-company was not entitled for bulk discount incentives from December 2003 onwards as it failed to pay the current bills on due dates and to pay the instalment as per the agreement dated 20-03-2002. It is submitted that the agreement dated 20-03-2002 does not deal with the entitlement of the petitioner-company for the bulk discount incentives and the petitioner-company had given up its claim for the bulk discount incentives on 29-09-2001. It is submitted that the agreement dated 20-03-2002 was for reconnection of the electricity supply which was disconnected in March, 2002. It is submitted that the Redressal Forum and the Electricity Ombudsman have exhaustively considered the points raised before them and after appreciating the material on the record, have rightly rejected the claim of the petitioner-company for the bulk discount incentives. It is prayed that the petition be dismissed with costs.
After hearing the submissions made by the learned Advocates for the respective parties and examining the documents placed on the record of the writ petition, I find that the claim of the petitioner-company is based on the order passed by the MERC on 04-09-2001. As per this order, the petitioner was entitled for bulk discount incentives from 01-05-2000 subject to payment as per the terms of agreement between the petitioner-company and the respondent No. 1. Though the parties have not placed on the record the relevant documents to show what were the terms at that time. The learned Advocate for the petitioner-company submitted that there was an understanding between the petitioner-company and the respondent No. 1 about the terms of payment at that time. This submissions is not controverted by the learned Advocate for the respondents. It is undisputed that the petitioner-company was given the bulk discount incentives for the period from May 2000 to April 2001.
The respondent No. 1 has stated in its reply filed before the MERC on 27-01-2006 (at Annexure No. 7, Page No. 75 of the paper-book) that the petitioner was not given the bulk discount incentives from August 2001 till December 2001 as it did not comply with the terms and conditions of payment of arrears, that it was not given the bulk discount incentives from 01-01-2002 to November 2003 as it was not legible for the bulk discount incentives as per the tariff order and it was not given the bulk discount incentives from December 2003 onwards as it failed to pay the instalments on due dates. The parties have not clearly brought on the record the fact as to whether the petitioner-company was given the bulk discount incentives from May 2001 till April 2002. However, it is undisputed that the petitioner-company had not paid the bills in August 2001 and September 2001 and a notice was issued by the respondent No. 1 threatening to disconnect the electricity supply.
Be that as it may, the claim of the petitioner-company is that it is entitled for bulk discount incentives as per the order passed by the MERC on 04-09-2001. In paragraph No. 18 of this order in Clause (ii), it is recorded that the petitioner-company shall submit the required agreement on Rs. 50/- stamp paper for settlement of arrears as envisaged by the respondent No. 1, on or before 15-09-2001. The undertaking which was required to be submitted a per the above direction of the MERC was not submitted by the petitioner-company. As per Clause (iii) of paragraph No. 18 of the order passed by the MERC on 04-09-2001, the petitioner was required to avail the normal status within one year. After examining the contentions of the respective parties, it transpires that the petitioner-company was required to pay the principal outstanding amount of Rs. 17.06 Crores by September 2002. The petitioner-company has not been able to establish on the record that it paid the instalments regularly to clear the principal outstanding amount to avail the normal status till September 2002.
The claim of the petitioner-company is that it paid the current bills on due dates and it paid the instalment on or before the stipulated date as per the agreement dated 20-03-2002 and consequently, it is entitled for the bulk discount incentives as per clause (i) of paragraph No. 18 of the order passed by the MERC on 04-09-2001. The submission is misdirected. The minutes of meeting held on 20-03-2002 does not refer to the bulk discount facility. They cannot be read in the context of the entitlement of the petitioner-company for the bulk discount incentives. The petitioner-company gave an undertaking to the respondent No. 1 on 29-09-2001 that it will not claim the bulk discount incentives if it was given instalments to pay the arrears. It is only after this undertaking was given by the petitioner-company and part payment of the outstanding bill was made, the respondent No. 1 had withdrawn the disconnection notice. On 20-03-2002 when the minutes of meeting were recorded, the petitioner-company was aware that it had given the undertaking on 29-09-2001 that it will not claim the bulk discount incentives. If at all the undertaking given by the petitioner-company on 29-09-2001 was not to be acted upon, reference of it should have been incorporated in the minutes of meeting dated 20-03-2002.
Though the respondent No. 1 had given the bulk discount incentives to the petitioner-company from May 2000 till August 2001, it has come on the record that the office of AG (Comm. Audit), Mumbai had put a note that the giving of bulk discount incentives for the above period resulted in loss of Rs. 3.18 Crores to the respondent No. 1 and irregularity was committed while granting the bulk discount incentives. Only because the respondent No. 1 has given the bulk discount incentives to the petitioner-company from May 2000 to August 2001, it cannot be held that the petitioner-company is entitled for the bulk discount incentives. Unless the petitioner-company shows its legal right to avail the bulk discount incentives the claim made in that regards cannot be accepted. The Redressal Forum and the Electricity Ombudsman have properly appreciated the contentions of the respective parties and the claim of the petitioner-company is rightly rejected.
I do not find any patent illegality or perversity in the impugned orders. The petition is dismissed. In the circumstances, the parties to bear their own costs.