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Judgment
K.M. Thaker, J.—The applicant herein is the original Petitioner in Special Civil Application No. 15879 of 2010.
The applicant-Petitioner is consumer of the Respondent-Licensee Company and is also permitted to generate electricity for captive consumption. On this count, there is no dispute between the parties.
It is also not in dispute that in view of the permission for captive generation and consumption of electricity and in the view of the policy statement about "wheeling" of and exporting the electricity, the applicant-Petitioner is, subject to the permission and the terms fixed by the Competent Authority, entitled to export the excess electricity power generated by it.
In view of such entitlement under the law, the applicant-Petitioner-Company moved an application seeking permission to export the electricity power generated by it. It appears that the Nodal Agency forwarded the application, as required under the prescribed regulation, to the Respondent-Company for its "no objection".
Upon receipt of the said application made by the applicant-Petitioner seeking permission to export electricity power generated by it, the Respondent-Company raised objections on the ground that the Petitioner has not cleared its dues.
The dues are said to be in the sum of Rs. 28,47,494/-.
As noted in the order dated 22.04.2011, the applicant-Petitioner-Company and the Respondent-Company were at divergence about the nomenclature of the said dues. The applicant-Petitioner-Company claimed that the dues were towards "surcharge" whereas the Respondent-Company claimed it to be towards "security deposit". The applicant also insisted that it was not liable to pay and licensee was not authorized and/or justified in demanding the payment of said sum of Rs. 28,47,494/- being the surcharge. Therefore, the aforesaid order dated 22.04.2011 was passed.
Today, however, it is clarified by both the sides that now, it is understood between the parties that the amount which is said to be due from the Petitioner is towards "surcharge" and is to be treated as "surcharge".
The fact remains that it is on account of the said due amount that the Respondent-Company has withheld "No Objection" as required by the regulation and declined to declare its No Objection.
The claim of Respondent-Company to demand the "surcharge" is in dispute, and the petition challenging the demand has been admitted and injunction order against disconnection has been granted. During pendency the request for permission to export the captively generated power is made and Respondent has denied no objection only for one reason viz. its dues towards surcharge.
It is necessary to ensure security of the due amount i.e. Respondent''s dues and its payment and it is also necessary to protect the interest of the Respondent.
On the other hand, if the permission is denied the generated power will be wasted as it cannot be stored (for further use).
In nut-shell, the call of the hour is to strike balance and maintain equity.
It appears that if the applicant is directed to furnish bank guarantee for full amount due, Respondent''s interest will be protected and the applicant''s purpose also will be served. Hence, having regard to the stand taken by the Respondent-Company and the requirement of the applicant-Petitioner-Company, more particularly to export the power generated by it and considering the requirement and justification for permission to export the generating power and also to protect the interest of the Respondent-Company and maintaining equitable balance, it is directed that on the condition that the applicant-Petitioner-Company furnishes and files bank guarantee for the outstanding dues i.e. Rs. 28,47,494/-, with Respondent company, the Respondent-Company will issue No Objection Certificate and forward the same to Nodal Agency i.e. GETCO. The bank guarantee must be drawn and issued by a Nationalized Bank.
The applicant-Petitioner-Company may submit such bank guarantee on or before 6th May, 2011.
The applicant-Petitioner-Company shall also file an undertaking, on affidavit, to the effect that the applicant-Petitioner-Company shall keep the bank guarantee alive until the final hearing of the petition or until any other or further orders are passed in respect of the said bank guarantee, either at the instance of the applicant-Petitioner-Company or at the instance of the Respondent-Company. A copy of the said undertaking shall be placed on record of the petition.
After the bank guarantee is so furnished to the Respondent-Company, the Respondent-Company on or before 13.05.2011 issue the No Objection Certificate as required under the regulation allowing the Competent Authority to grant permission in favour of the applicant-Petitioner-Company for export of electricity supply generated by it.
It goes without saying that after the No Objection Certificate is issued by the Respondent-Company, upon compliance of other requirements, as may be envisaged under applicable regulation, the Nodal Agency (GETCO) of the Competent Authority will immediately issue necessary permission as requested for by the applicant-Petitioner-Company.
Having regard to the nature of the controversy involved in the petition, it is considered appropriate to list the petition for final hearing, more particularly in view of the fact that Ms. Bhaya, learned advocate for the Respondents, has submitted that the similar petition being Special Civil Application No. 7498 of 2009 involving similar issues is already admitted and listed for final hearing. Therefore, it would be appropriate to direct the Registry to list Special Civil Application No. 7498 of 2009 and Special Civil Application No. 15879 of 2010 in the week beginning from 4th July, 2011.
It is clarified that it would be open to the applicant-Petitioner-Company as well as the Respondent-Company to move appropriate Civil Application, if the circumstances so require, for appropriate further orders with regard to the bank guarantee (to be submitted by the applicant-Petitioner-Company).
With the aforesaid clarifications, observations and directions, present Civil Application stands disposed of. Rule is made absolute to the aforesaid extent. Interim relief, if any, stands vacated forthwith.