Arpee Electrical Pvt Ltd. v. Chief General Manager (Elec) Operations Bescom
2023-01-04
C.M.POONACHA
body2023
DigiLaw.ai
ORDER : C.M. Poonacha, J. The Petitioner is represented by its Managing Director who has appeared in person and is aged more than 80 years. 2. The above Writ Petition is filed seeking the following reliefs: "a) To admit the Writ Petition in the interest of justice and equity as justice should be seen to have been done. b) Issue a Writ in the nature of Mandamus directing the Respondent to pay accrued interest of Rs.19,15,97,891/- as on 31.01.2018 and to pay 2% p.m., compound interest from 01.02.2018 till the entire amount is paid which is strictly based on facts and in accordance to law which are not in dispute. c) To pass any other order or directions that this Hon'ble Court may deem fit, just and proper in the interest of justice." 3. It is the case of the Petitioner that, it is a Small Scale Industrial Unit in plot bearing No.A-56, Peenya, Bengaluru, started in the year 1978-79. That he made an application to the erstwhile Karnataka Electricity Board (KEB) presently Bangalore Electricity Supply Company Limited (BESCOM) (hereinafter referred to as the 'Respondent') on 28.5.1987 for 200 KVA of electricity to establish a new industrial unit. Pursuant to which, as demanded by the Respondent, he paid deposit of a total sum of Rs.1,78,292/-. Thereafter, on 25.5.1991, he addressed a letter to the competent authority to permit installation of 2 diesel generator sets of 100KVA each to start production since no power connection has been given by the Respondent. That in the year 1992-93, he addressed various letters to the Respondent to refund the amount deposited with interest. 4. Despite the same, since the Respondent had not refunded the amount deposited, on 30.1.2003 he had filed a petition before the Karnataka Electricity Regulatory Commissioner (KERC) in OP.No.32/2003. On 8.1.2004, the KERC passed an order for refund of the deposit after deducting 10% of the deposited amount and pay interest at 6% pa., as against the compound interest claimed by the Petitioner at 2% pm. On 31.1.2004, the Petitioner filed a Review Petition No.4/2004 before the KERC seeking for compounded interest at 2% pm. On 9.3.2004, the Respondent filed WP.No.10168/2004 before this Court challenging the order dated 8.1.2004 passed by the KERC. Pursuant to the interim order dated 29.3.2004, passed by this Court in WP.No.10168/2004, the Respondent deposited a sum of Rs.1,78,292/- on 21.4.2004 before this Court.
On 9.3.2004, the Respondent filed WP.No.10168/2004 before this Court challenging the order dated 8.1.2004 passed by the KERC. Pursuant to the interim order dated 29.3.2004, passed by this Court in WP.No.10168/2004, the Respondent deposited a sum of Rs.1,78,292/- on 21.4.2004 before this Court. The Review Petition No.4/2004 was disposed off by the KERC in view of the interim order dated 29.3.2004 passed by this Court. On 16.11.2006, this Court dismissed the Writ Petition directing the Respondent to avail the alternate remedy under the Electricity Act, 2003 (hereinafter referred to as 'the Electricity Act'), pursuant to which, the Respondent filed Appeal No.47/2007 before the Appellate Tribunal for Electricity (APTEL). The Petitioner entered appearance in the said proceedings. On 16.5.2007, the APTEL passed an order by consent of the Respondent as well as the Petitioner, whereunder the Petitioner was permitted to withdraw the sum of Rs.1,78,292/- deposited by the Respondent before the High Court and disposed off the said appeal. 5. Pursuant to the order dated 16.5.2007, the Petitioner vide letter dated 29.5.2007 sought permission of the Respondent to withdraw the deposit of Rs.1,78,292/- with interest in this Court, under protest. The said letter was replied by the Respondent, vide letter dated 20.6.2007 and accordingly, the Petitioner received the sum of Rs.1,78,292/- deposited before this Court on 6.7.2007 without any interest. 6.
The said letter was replied by the Respondent, vide letter dated 20.6.2007 and accordingly, the Petitioner received the sum of Rs.1,78,292/- deposited before this Court on 6.7.2007 without any interest. 6. It is the contention of the Petitioner that the order dated 16.5.2007 of the APTEL is vitiated by fraud and he has initiated the following proceedings seeking adjudication of the same: a) Review Petition No.28/2007 before the APTEL was filed 13.6.2007; which was dismissed on 11.10.2007; b) Miscellaneous Application under section 151 of the Code of Civil Procedure, 1908 before the APTEL was filed on 31.3.2007 seeking to reconsider the matter again; c) Civil Appeal No.2707-2008/2008 before the Hon'ble Supreme Court was filed on 18.12.2007, which was dismissed on 7.4.2008; d) Restoration Application to restore the Appeal was filed on 29.7.2009 before the APTEL, which was dismissed on 4.5.2016; e) Review Petition No.7/2013 to recall the order dated 17.10.2013 passed by the KERC in Application No.1/2013 filed in Review Petition No.4/2004 and OP.No.32/2003, which was dismissed on 23.1.2014; f) Miscellaneous Application in DFR No.1012/2018, filed before the APTEL to quash the order passed by the APTEL in Appeal No.47/2007 and Review Petition No.28/2007, was dismissed on 4.5.2016; g) Appeal No.2209/2016, which was filed for recalling the order dated 4.5.2016 and earlier orders passed in Appeal No.47/2007 and Review Petition No.28/2007, was dismissed on 21.11.2016; h) The order dated 4.5.2016 passed in DFR No.395/2014 and the order dated 21.11.2016 passed in Appeal No.2209/2016 were challenged by the Petitioner before the Hon'ble Supreme Court in Civil Appeal Diary No(s).1184/2017, which was dismissed on 29.1.2018; i) Writ Petition No.17674/2018, which filed for a writ of mandamus to direct the Respondent to consider the representation dated 26.2.2018, to refund the deposit with compounded interest at 2% pm., amounting to Rs.19,15,97,891/-, was allowed by this Court, vide order dated 26.7.2018 directing the Respondent to consider the representation. j) Contempt Petition in CCC No.2118/2018 was filed alleging disobedience of the order dated 26.7.2018 passed in WP.No.17674/2018. Since the representations of the Petitioner dated 26.2.2018 and 3.3.2018 were considered by the Respondent, vide its reply dated 25.10.2018, this Court, vide order dated 5.12.2018 dropped the contempt proceedings; k) Application filed by the Petitioner for recalling the order dated 5.12.2018 passed in CCC No.2118/2018, was rejected by this Court on 24.1.2020; Consequent to the same, the present Writ Petition is filed seeking for suitable reliefs. 7.
7. The Respondent has contested the present proceedings by filing the Statement of Objections and has sought for dismissal of the Writ Petition contending, inter alia that the Petitioner is attempting to reopen the proceedings, after taking refund of a sum of Rs.1,78,292/- 8. It is the contention of the Petitioner, who has appeared party-in-person that all the orders passed consequent to the consent order dated 16.5.2007 is a nullity and the Respondent is not entitled to rely on the same. It is also contended by the Petitioner that the Respondent is liable to pay the amount sought in the Writ Petition which is the amount deposited by him, together with interest which has been compounded quarterly. Hence, he seeks for grant of the reliefs sought in the Writ Petition. 9. The Petitioner has also filed written arguments on 15.12.2022. 10. The learned Counsel for the Respondent has made her submissions by filing list of dates and contends, inter alia that the claim of the Petitioner is not liable to be granted and the Petitioner has repeatedly filed various Petitions/Applications in various Courts trying to revive the claim which he has voluntarily, by consent, closed by taking refund of the deposit/money. Further, the learned Counsel submits that the action of the Petitioner in filing the present Writ Petition tantamounts to criminal contempt and apart from seeking for dismissal of the Writ Petition, seeks for initiation of criminal proceedings against the Petitioner. 11. I have given my anxious consideration to the submissions of the Petitioner, who has appeared through its Managing Director, who has appeared in person and the learned Counsel for the Respondent and perused the material on record. 12. The question that arises for consideration is: 'Whether the relief sought for in the Writ Petition is liable to be granted?' 13. The claim of the Petitioner for refund of the deposit amount was the subject matter of proceedings before the KERC in OP No.32/2003. The KERC, vide order dated 8.1.2004, allowed the petition filed by the Petitioner and directed the Respondent to refund the deposit of the Petitioner after deducting 10% of the deposited amount as per Regulation 8.08 of the KERC (Electricity Supply and Distribution) Code, 2000-2001 and further ordered that the Petitioner is entitled to interest at prevailing bank rate of 6% pa., and the balance deposit from the date of deposit till date of payment.
It is further ordered that the refunded deposit and interest thereupon may be adjusted against the future electricity consumption of the Petitioner. The said order dated 8.1.2004, was challenged by the Respondent in WP.No.10168/2004, which was disposed off with liberty to the Respondent to approach the APTEL after coming into force of the Electricity Act, 2003. Accordingly, the Respondent challenged the order dated 8.1.2004 passed by the KERC in OP No.32/2003, in Appeal No.47/2007 before the APTEL. The said appeal was disposed off vide order dated 16.5.2007. The relevant portion of the order dated 16.5.2007 is extracted hereinbelow for ready reference: "However, the appellant is a public body and is expected to be a model organization. Mr. M. G. Ramachandran, advocate appearing on behalf of the appellant, says that the appellant has already made a deposit of Rs.1,78,292 in the High Court of Karnataka and that the amount is likely to have been put by the High Court of Karnataka in an interest bearing deposit. Mr. M.G. Ramachandran also fairly says that without going into the legal disputes raised in the appeal the appellant is willing to allow the respondent to withdraw the amount deposited with the Karnataka High Court along with the interest if any available on that account. The respondent represented by Mr. R.P. Gupta, Managing Director, says that he does not press his claim for interest on his deposits till this date except for whatever may have accrued on the deposit lying with the Karnataka High Court. The instructions from the appellant to the respondent No. 1 asking for deposit also does not indicate that the deposit was to bear any interest. In view of the above, we feel it appropriate to conclude the matter here by allowing the respondent to withdraw the amount in deposit with the Karnataka High Court as offered by the appellant and accept the amount in full and final settlement of its claim in respect of the aforesaid deposits. We add that this order will not be read as precedent in respect of the issues relating to the jurisdiction of the Commission and that relating to limitation. The Court records appreciation for the efforts made by Mr. Amit Kapur, Advocate appearing for the Karnataka Electricity Regulatory Commission, (Resp. No. 2) for his assistance to the Tribunal in settling the matter.
The Court records appreciation for the efforts made by Mr. Amit Kapur, Advocate appearing for the Karnataka Electricity Regulatory Commission, (Resp. No. 2) for his assistance to the Tribunal in settling the matter. We also put on record, the fair stand taken by the learned counsel, Mr. M.G. Ramachandran in the interest of final adjudication of the dispute. The appeal stands disposed of." 14. The Petitioner filed a Review Petition No.28/2007 seeking for review of the order dated 16.5.2007 passed by the APTEL in Appeal No.47/2007, which was dismissed vide order dated 11.10.2007. The relevant portion of the said order is extracted hereinbelow, which reads as under: "4) The second error pointed out in the order is about the liability to pay interest. He says that it is an error because he was entitled to interest. He claims to be entitled to interest in law as well as under the rules binding the respondent-appellant utility. This cannot be treated as an error apparent warranting a review. He does not dispute that he did not press his claim for interest on May 16, 2007 before this Tribunal which led this Tribunal to pass the order. The review petitioner is today armed with various legal provisions to justify his claim for interest. However, it is beyond the scope of review to go into the question of petitioner's entitlement to interest in law or under the rules and regulations governing utilities. 5) No error apparent in the order dated May 16, 2007 has been pointed out and accordingly no relief can be given to the Review Petitioner. 6) The Review Petitioner has sent a cheque of Rs.1.78.292/- to be kept safe with the Registrar of this Tribunal. This cheque was sent on the Review Petitioner's own volition and without there being any directions in this regard from this Tribunal; the cheque may now be returned to the Review Petitioner. Accordingly, the Review Petition is dismissed, leaving the parties to bear their own costs." 15. Subsequently, the Petitioner filed Review Petition No.7/2013 to recall the order dated 17.10.2013 passed on IA.I/2013 filed in Review Petition No.4/2004 and OP.No.32/2003. Vide order dated 23.1.2014, the said Review Petition No.7/2013 was dismissed. The Petitioner, thereafter, filed Miscellaneous Application in DRF.1012/2016 in IA (DRF) 395/2014, to quash the order passed in Appeal No.47/2007 and Review Petition No.28/2007. The said Application was dismissed vide order dated 4.5.2016.
Vide order dated 23.1.2014, the said Review Petition No.7/2013 was dismissed. The Petitioner, thereafter, filed Miscellaneous Application in DRF.1012/2016 in IA (DRF) 395/2014, to quash the order passed in Appeal No.47/2007 and Review Petition No.28/2007. The said Application was dismissed vide order dated 4.5.2016. The relevant portion is extracted hereinbelow: "............... A statement was made on behalf of the Appellant Bangalore Electricity Supply Co. Ltd., that the Appellant had already made a deposit of Rs. 1,78,292/- in the Karnataka High Court it is stated in the order that Mr. R.P Gupta, Managing Director, Arpee Electricals Pvt. Ltd, made a statement that he does not press his claim for interest on its deposits till this date except for whatever may have accrued on the deposit lying with the Karnataka High Court This Tribunal observed that instructions from the Appellant to M/s Arpee Electricals Private Ltd. In view of this, this Tribunal allowed M/s Arpee Electricals Private Ltd, to withdraw the amount deposited with Karnataka High Court and accept the amount in full and final settlement of its claim in respect of the said deposits. Being aggrieved by this order M/s Arpee Electricals Private Ltd.. preferred a review petition By order dated 11.10.2007 the review petition being Review Petition No 28 of 2007 was dismissed by this Tribunal holding that there was no error apparent in the order dated 16.5.2007 passed by this Tribunal Today it is admitted by Mr. RP Gupta. Managing Director of the Applicant that he had filed a Special Leave Petition in the Supreme Court being aggrieved by the order dated 11.10.2007 passed by this Tribunal in review petition. The said Special Leave Petition has been dismissed by the Supreme Court In view of the fact that the Supreme Court has dismissed the Special Leave Petition and this Tribunal has allowed the Applicant to withdraw the amount deposited with Karnataka High Court in full and final settlement of its claim in respect of the aforementioned deposits, it is not possible for us to reopen the entire issue. These applications are, therefore, not maintainable and dismissed as such." 16. Thereafter, the Petitioner filed Appeal in DRF No.2209/2016 for recalling the order dated 4.5.2016 passed in Application No.1012/2016. The said appeal was dismissed vide order dated 21.11.2016. The relevant portion reads as under: "............
These applications are, therefore, not maintainable and dismissed as such." 16. Thereafter, the Petitioner filed Appeal in DRF No.2209/2016 for recalling the order dated 4.5.2016 passed in Application No.1012/2016. The said appeal was dismissed vide order dated 21.11.2016. The relevant portion reads as under: "............ As already noted, vide our order dated 04/05/2016 we have dismissed similar application filed by the Appellant. In our opinion, therefore, this application is not maintainable. Hence, it is dismissed. We hope that the Applicant does not file any more applications of this nature in future in this Tribunal. If the Applicant has any other remedy he is free to prosecute it. On this aspect we have not expressed any opinion." 17. The order dated 4.5.2016 passed by the APTEL in DRF No.1012/2016 in DRF No.395/2014 and the order dated 21.11.2016 passed in DRF No.2209/2016, were challenged by the Petitioner before the Hon'ble Supreme Court in Civil Appeal Diary No(s).1184/2017, which was dismissed by order dated 29.1.2018. It is subsequent to the dismissal of the Civil Appeal filed by the Petitioner before the Hon'ble Supreme Court that, the Petitioner had filed WP.No.17674/2018 for consideration of his representation dated 26.2.2018. A Co-ordinate Bench of this Court, vide order dated 26.7.2018 allowed the Writ Petition with a direction to the Respondent to consider the representation of the Petitioner. The Respondent vide reply dated 25.10.2018 has considered the representation of the Petitioner. Thereafter, the proceedings initiated by the Petitioner in CCC No.2118/2018 alleging disobedience of the order dated 26.7.2018 passed in WP.No.17674/2018 were dropped vide order dated 5.12.2018 and the Application to recall the order dated 5.12.2018 was rejected vide order dated 24.1.2022. 18. It is clear from the aforementioned, that the Petitioner has initiated various proceedings with regard to his claim for refund of the deposit, which have been adjudicated upon by various Courts and the Tribunals as noticed above. The contention of the Petitioner that all the judgments/orders passed by various Courts are a nullity is liable to be rejected, inasmuch, as there is no ground made out by the Petitioner for putting forth the said contention. 19. The Claim of the Petitioner for payment of compounded interest on the deposit at 2% pm., is not based on any specific contract between the parties or any provision of law.
19. The Claim of the Petitioner for payment of compounded interest on the deposit at 2% pm., is not based on any specific contract between the parties or any provision of law. The representation of the Petitioner dated 26.2.2018 having been considered by the Respondent, vide reply dated 25.10.2018 pursuant to the order dated 26.7.2018 passed in WP.No.17674/2018, the Petitioner has failed to make out a case that he is entitled to any further relief as sought in the present Writ Petition. The question framed for consideration is answered in the negative. The Writ Petition is liable to be rejected. 20. The oral prayer of the Respondent to initiate criminal contempt proceedings against the Petitioner is also not acceded to, having regard to the fact that the Petitioner is represented by its Managing Director who is aged 80 years and being a senior citizen has filed various petitions under the legitimate belief that he is entitled for the reliefs sought for. In view of the same, this Court does not deem it appropriate to initiate criminal contempt proceedings as sought for by the Respondent. 21. In view of the aforementioned, the Writ Petition fails and is accordingly, rejected.