TaxTMI 
TaxTMI 
2022 (1) TMI 1511
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....15432 of 2021 W.P.A. No. 16040 of 2021 and W.P.A. No. 4168 of 2021 : Mr. Surojit Nath Mitra, Mr. Tanoy Chakraborty, Mr. Siddharth Shroff, Mr. Gautam Shroff For the petitioners in W.P.A. No. 5985 of 2021 W.P.A. No. 6047 of 2021 and W.P.A. No. 6075 of 2021 : Mr. Soumya Majumder, Mr. Tanoy Chakraborty, Mr. Shiladitya Barma For the petitioners in W.P.A. No. 6068 of 2021 and W.P.A. No. 6077 of 2021 : Mr. Soumya Majumder, Mr. Tanoy Chakraborty, Ms. Riya Ghosh For the WBERC in W.P.A. No. 15428 of 2021, W.P.A. No. 14166 of 2021, W.P.A. No. 15432 of 2021, W.P.A. No. 16040 of 2021, W.P.A. No. 4168 of 2021 and W.P.A. No. 5985 of 2021 : Mr. Pratik Dhar, Mrs. Sharmistha Ghosh, Mr. Victor Chatterjee For the WBERC in W.P.A. No. 6047 of 2021, W.P.A. No. 6068 of 2021, W.P.A. No. 6075 of 2021, and W.P.A. No. 6077 of 2021 : Mrs. Sharmistha Ghosh, Mr. Victor Chatterjee For the DVC : Mr. Joydip Kar, Mr. Deepak Agarwal, Mr. Prasun Mukherjee Judgment Sabyasachi Bhattacharyya, J:- 1. The above-captioned ten writ petitions are heard and adjudicated together since the questions involved therein are similar in nature. 2. A common question which has arisen for consideration in three....
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.... Orissa and others], (2005) 8 SCC 264 [U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another], (2014) 1 SCC 603 [Commissioner of Income Tax and others Vs. Chhabil Dass Agarwal]. 7. Learned Senior Counsel appearing for the WBERC contends that the disputes relating to the bills for electric charges raised by the DVC have to be raised before the concerned GRO and/or Central Grievance Redressal Officer (CGRO), as contemplated under Sections 42(5), 42(6) and 52(5) of the 2003 Act, read with Regulation 3.5 of the 2013 WBERC Regulations. 8. It is argued that, in view of availability of such alternative efficacious remedy, the writ Court cannot be moved and the appeals are not maintainable under Article 226 of the Constitution of India. 9. For such proposition, learned Counsel places reliance on (2005) 8 SCC 264 [U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another], (2011) 2 SCC 575 [Transport and Dock Workers Union and others Vs. Mumbai Port Trust and another], (2013) 5 SCC 470 [Rajasthan State Industrial Development and Investment Corporation and another Vs. Diamond & Gem Development Corporation Limited and another]. 10. The dispute resolution mechanism within the pur....
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....nal settlement of the previous dues, the DVC could not claim any further dues, let alone DPS, on the basis of previous bills. 20. It is argued that Section 62 of the 2003 Act provides specifically for determination of tariff by the "Appropriate Commission". The Appropriate Commissions respectively are the CERC and the State Electricity Regulatory Commission, in the present case, WBERC. 21. Section 79 of the 2003 Act categorically provides, in Clause (a) thereof, that the CERC shall regulate tariff of generating companies owned or controlled by the Central Government. In other cases, Clause (b) of Section 79 provides that the CERC shall regulate the tariff of generating Companies, other than those owned and controlled by the Central Government, if such companies entered into or otherwise have a composite scheme for generation and sale of electricity in more than one State. Clause (d) of Section 79 specifies that the CERC shall also determine tariff for inter-State transmission of electricity. On the other hand, Section 86 of the 2003 Act deals with the functions of the State Commissions. Clause (a) thereof provides for determination of the tariff for generation, supply, transm....
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....on the basis of earlier retail tariff, even before the retail tariff was finally determined by the WBERC. Thus, the disputes in the present matters cannot be relegated to the category of mere "billing disputes", to be decided by GROs and/or CGROs. 28. On the proposition that alternative remedies, even if available, do not operate as an absolute bar in filing a petition under Article 226 of the Constitution, learned counsel places reliance on the following judgments: i. AIR 1966 SC 197 [M. G. Abrol, Additional Collector of Customs, Bombay and another vs. Shantilal Chhotelal & Co. and others]; ii. (1977) 2 SCC 724 [State of U.P. and others Vs. M/s. Indian Hume Pipe Co. Ltd.]; iii. (1985) 3 SCC 267 [Ram and Shyam Company Vs. State of Haryana and others]; iv. (1998) 8 SCC 1 [Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others]; and v. (2011) 5 SCC 697 [Union of India and others Vs. Tantia Construction Private Limited]. 29. It is iterated by learned counsel appearing for the petitioners that 'surcharge' means something over and in excess of the normal dues or charge, in the context of electricity laws. Reference is mad....
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.... to pay DPS as claimed by the DVC for the respective periods of late payment/non-payment. 36. It is further contended by the DVC as well as the WBERC, that within the scheme of the 2003 Act and the Regulations framed thereunder, the disputes raised in all the writ petitions can be broadly termed as 'billing disputes' and ought to have been referred to and decided by the respective GROs. 37. Bypassing such legal remedy, which is equally efficacious, if not more, the writ petitions ought to be dismissed, it is contended. 38. It is further argued by the DVC that there was no occasion to claim DPS prior to the final settlement of the retail charges by the WBERC in the year 2020. However, the charges so payable relate back to the period during which each of the defaults were committed. 39. Learned Senior Counsel appearing for the WBERC, in particular, argues that no analogy can be drawn between the provisions of the Arbitration and Conciliation Act, 1996 and the 2003 Act, which are entirely different in scope and operation. 40. The legislature, in its wisdom, created specific bars in the appointment of Arbitrators for adjudicating disputes as contemplated under the 1996 A....
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....retail tariffs for the respective States have to be determined by the concerned State Commissions and not the Central Commissions. 48. Although, obviously, such assessment of retail tariff depends largely on the bulk rates for generation and transmission of electricity, and could not be ascertained finally unless the said bulk rates were determined by the CERC, the ultimate tariff for retail supply in the States is that, which has been determined by the respective State Commissions. 49. As such, the expression "any charge for electricity or any sum other than a charge for electricity", as contained in Sections 56 of the 2003 Act, which provides for disconnection of electric supply in default of payment of due charges, has to be read in the proper perspective, as being consonant with the rates of tariff determined for retail supply by the State Commissions (the WBERC, in the present case).Section 56(2) of the 2003 Act stipulates that, notwithstanding anything contained in other law for the time being in force, no sum due from any consumer under Section 56 shall be recoverable after the period of two years from the date when such sum became first due, unless such sum has been s....
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....it was for the DVC to make such an application for the purpose of determination of tariff. However, despite having lost authority to determine its own electricity tariff, as conferred by the DVC Act, after the coming into force of the 2003 Act on June 10, 2003, the DVC merrily continued to charge electricity supply (retail) at its own rates instead of approaching the WBERC in that regard. First, the CERC fixed provisional tariff for generation and transmission and thereafter determined the final tariff for such purposes, for the period 2009- 2014, only on June 23, 2011 and September 30, 2013. Since the generation and transmission components of the tariff were necessary pre-requisites for the State Commissions to fix the retail rates, the WBERC and the other State Commissions were handicapped in the absence of any application on behalf of the DVC on such score. Only on the initiative of the WBERC and the instigation of this Court by a judicial order did the DVC make an application for determination of retail tariff to the WBERC. Since the final retail tariff was fixed only on June 19, 2020 (for the period 2006-2009) and on March 19, 2020 (for the period 2009-2013), the rates of reta....
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....n the provisional tariff. 63. On the other hand, the Jharkhand High Court, in another challenge, upheld the provisional tariff as intra vires. 64. Hence, during the ensuing period a Schrodinger's Cat dichotomy prevailed, inasmuch as the consumers of West Bengal were not bound to honour the power bills based on such provisional tariff, while the Jharkhand consumers were so bound, both during the self-same period. 65. Ultimately on September 30, 2013 the CERC determined final tariff for generation and transmission for the period 2009-2014. 66. Accordingly, the Supreme Court decided two appeals pending before it, against the Calcutta High Court and the Jharkhand High Court judgments respectively, on January 18, 2017, thereby setting aside both the said judgments. Soon thereafter, the DVC raised a bill asking the consumers to pay differential amount on the basis of final tariff for generation and transmission. 67. Surprisingly, even thereafter, the DVC waited for a specific direction from this Court dated December 3, 2018 to apply before the WBERC for final determination of the retail tariff. Such determination was made by the WBERC for the periods 2006-2009 and 2009-201....
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...." has to be read in consonance with the definition of tariff within the contemplation of Sections 62, 79 and 86 of the 2003 Act and the extant Regulations. Construing so, there could not have arisen any occasion to charge DPS prior to the finalization of the retail rates in the year 2020 and the raising of bills by the DVC thereon, in 2021. After 2021, there is no allegation as regards any default. As such, the Delayed Payment Surcharge levied by the DVC for the period 2006-2009 as well as 2009-2013 for alleged previous defaults are illegal and baseless. 73. The varying touchstones of retail charges at different periods of time all merged into the retail tariff finally determined by the WBERC and on the DVC claiming bills thereon only, the liability of the consumers for payment of electricity charges arose in that regard. In fact, prior to such final fixation of retail charges, the DVC had not claimed DPS at any point of time. 74. Any other interpretation than such merger would give rise to absurd consequences, since, in that event, the ad hoc arrangements as regards such tariff, either by virtue of orders passed by the High Courts or the Supreme Court or the different Regula....