THE HONOURABLE SRI JUSTICE V. ESWARAIAH
Writ Petition No.5453 of 2002
20-08-2008
Sri Kedarnath Silk Mills, Rep by its Proprietor, Mr. Shiv Kumar Agarwal, S/o Kedarnath, 3-2-326, Chappal Bazar, Hyderabad-500
027.
#A.P. Transco Rep by its Managing Director, Vidyut Soudha, Hyderabad and another.
!Counsel for the petitioner : MR. D. V. NAGARJUNA BABU
^Counsel for the respondents: MR. O. MANOHAR REDDY SC FOR AP TRANSCO
:ORDER:
Heard both the counsel.
2. Petitioner - Sri Kedarnath Silk Mills, is a small-scale industry situated at Plot Nos.59 and 110, Katedan IDA, Hyderabad and it had taken H.T power connection with Service Connection No.RRD-807. While so, the Andhra Pradesh Pollution Control Board (PCB) by its order dated 14.03.2001 in exercise of powers vested in it under Section 33(A) of the Water (Prevention and Control of Pollution) Amendment Act, 1988 read with Section 32(1)(C) and under Section 31(A) of the Air (Prevention and Control of Pollution) Amendment Act, 1987 ordered the petitioner-industry to stop all industrial activities with effect from the date of the said order as an emergency measure to stop the deterioration of the ground water, surface water and damage to the environment in the interest of public health and environment and also directed to take note that the A.P. Transco has been ordered to disconnect power supply to petitioner- industry with immediate effect. Pursuant to the said order of the PCB dated 14.03.2001 the power supply to the petitioner - industry was disconnected on 21.03.2001 and the same was effected under condition 42.2 of Terms and Conditions of Supply.
3. Learned counsel for the petitioner submits that there were no dues/arrears till the date of disconnection i.e. 21.03.2001 and that the PCB ordered restoration of supply of power by its order dated 05.03.2002. He further submits that pursuant to the order of the PCB for restoration of power supply the petitioner approached the second respondent for restoration of power supply but the second respondent made a demand vide impugned letter dated 22.03.2002 in Letter No.SE/OP/RRD/SAO/IIT/D.No.1400 demanding to pay the dues of minimum charges for the disconnected period from 21.03.2001 to March 2002 as the petitioner paid the amount payable for the month of April 2001 even after the disconnection. As against the said demand of Rs.6,05,663/- including the reconnection charges of Rs.300/- for restoration of power supply, petitioner filed this writ petition and obtained interim order dated 27.03.2002 for restoration of power supply subject to the condition of the petitioner paying a sum of Rs.1,00,000/- and the learned counsel submits that the said amount has been paid and the power supply was restored on 28.03.2002.
4. Learned counsel for the petitioner further submits that the petitioner- industry is not liable to pay the minimum charges for the disconnected period as disconnection of power supply was not account of non-payment of electricity charges, pilferage or other malpractices but for the order of the PCB. He further submits that if the bills are not paid for consecutive three months it is the duty of the respondents to terminate the HT agreement by giving one month notice, therefore, as the respondent-corporation failed to exercise its statutory duty and obligation under clause 26.10, for terminating the agreement immediately after the expiry of three months period of non-payment of electricity charges, the petitioner-industry is not liable to pay the minimum charges from the month of August 2001 as at best the petitioner-industry is liable to pay the minimum charges for the months of May, June, July alone, as the petitioner-industry paid the amount payable for the month of April 2001. He further submits that immediately after expiry of three months, one-month notice has to be given, therefore, at best the Department can collect four months charges from 21st April to 21st July. The closure of the petitioner-industry was not on account of lapses on the part of the petitioner but due to the reasons beyond the control of the petitioner-industry and at the instance of the closure order passed by the PCB, therefore,
the collection of minimum charges for the disconnected period is illegal and arbitrary.
5. It is not in dispute that the petitioner-industry entered into HT agreement with the respondent-corporation for supply of power under clause 26.6 and it is also not in dispute that the closure order of the PCB is after the expiry of the period of two years of agreement. I am of the opinion that it is relevant to peruse the appropriate clause of terms and conditions of supply. Under clause 26.8 the consumer is at liberty to seek reduction or termination of the agreement by giving three months notice in writing expressing his intention to do so at any time after the period of two years from the date of commencement of agreement and the Board can terminate the agreement at any time by giving one week's notice if the consumer violates the terms of the agreement or the terms and conditions of supply prescribed by the Board from time to time or the provision of any law touching the agreement including the Electricity (Supply) Act, 1948, the Indian Electricity Act, 1910 and Rules made thereunder.
Under clause 26.9 on termination of agreement the consumer shall pay all sums due under the agreement as on the date of its termination.
Under clause 26.10 where any consumer, whose supply is disconnected for non- payment of any amount due to the Board on any account, fails to pay such dues and regularize his account within three months from the date of disconnection, the Board may if it thinks fit, after completion of 3 months period, issue one month notice for termination of the agreement. If the consumer still fails to regularize the account, the Board shall terminate the agreement with effect from the date of expiry of the said one-month notice, such termination shall be without prejudice to the rights and obligations incurred or accrued prior to such termination.
Under clause 33.2 the consumer has to pay the minimum charges as specified in the tariffs and the obligation shall be absolute. The minimum charges shall be payable by the consumer even if no electricity is actually consumed, for any reason whatsoever and also if the charges for electricity consumed are less than the minimum charges. The minimum charges will be payable even if electricity is not consumed because supply has been disconnected by the Board because of non- payment of electricity charges, pilferage, other malpractices or for any other valid reason.
Under clause 42.1 where the consumer is evicted from the premises under any other law, the Board may discontinue the supply of energy to such premises and remove its installations and equipment without prejudice to the other rights of Board recover from such consumers the expenses incurred for dismantling its installation and removing its equipments.
Under clause 42.2 where the consumer requires a license or permission from any statutory authority or any authority of Government to run the business/industry, or permission for lifting of water wherever necessary for purposes of irrigation, or for any other purpose for which he seeks or availing supply of electricity or for locating such business/industry/pumpset or any other equipment at the place where he is receiving such supply and where the conduct of such business/industry/activity at such place becomes unlawful by reasons of its failure to obtain initially or secure the continuance of such license or permission, the Superintending Engineer of the Board may, if desired by the concerned statutory or any other competent authority of Government, after giving notice calling for explanation and after considering the same, discontinue supply without forfeiting the rights of the Board under the agreement with the consumer.
Under clause 42.3 where the consumer defaults in payment of charges for the supply of electricity or defaults payment of minimum charges where supply is under disconnection or unconnected minimum charges due in respect of a service for which supply is sanctioned and made ready but not yet availed or fails to or defaults any other sums payable to the Board under the contract of supply or the tariff and terms and conditions of supply notified by the Board under Section 49 of the Electricity Supply Act, the Board, may without prejudice to its other rights cause to be disconnected all or any of the other services of the consumer, though such services be distinct and are governed by separate agreements and though no default occurred in respect thereof.
It is the duty of the consumer to pay the minimum charges even after disconnection of power supply. Therefore, the questions that arise for consideration are as to whether the petitioner-industry is liable to pay the minimum charges even after disconnection of power supply and as to whether the agreement is deemed to have been terminated or not.
6. In the instant case, admittedly there is a corresponding obligation on the part of the respondent-corporation to honour the order of the Andhra Pradesh Pollution Control Board directing to stop power supply to the petitioner- industry. Pursuant to the order of the PCB alone the power supply has been disconnected with effect form 21.03.2001 under clause 42.2. Under clause 33.2 the minimum charges shall be payable even if the electricity is not consumed because supply has been disconnected by the Board because of non-payment of electricity charges, pilferage, other malpractices or for any other valid reason and there is a corresponding duty on the part of the Board to honour the order of the PCB under clause 42.2. No doubt, under clause 26.10 it is open for the Board to terminate the agreement where the supply is disconnected for non- payment of any amount due to the Board on any account and even after three months if the said dues have not bee paid the Board may by giving one-month notice terminate the agreement. A perusal of clause 26.10 goes to show that it is not mandatory to terminate the agreement, as the Board may, if it thinks fit, after completion of three months, is entitled to issue one-month notice. Merely because electricity bills have not been paid for a period of three months, the termination of the agreement is not automatic but it is at the discretion of the Board by giving one-month notice after the expiry of three months period of non- payment of minimum charges.
7. In the instant case, the disconnection of power supply to the petitioner- industry is not on account of non-payment of three months minimum charges but it is on account of the order of the PCB. It is the duty of the petitioner- industry to see that air, water and land is not polluted, therefore, for the fault of the petitioner-industry only the PCB ordered closure of the unit and when the so-called lapses were rectified, the PCB ordered for restoration of power supply and accordingly the respondent-corporation restored the power supply. However, for restoration of power supply, as per the terms and conditions of agreement and in view of the aforesaid clauses, the minimum consumer charges were rightly demanded.
8. I am of the opinion that the action of the respondents in demanding to pay the minimum charges cannot be held as illegal, arbitrary and contrary to the terms and conditions of supply. Had the petitioner-industry wanted to terminate the HT agreement, it would have exercised its option under clause 26.8 by giving three months notice in writing for termination of the agreement but the petitioner-industry failed to exercise the option available to it under clause 26.8.
The closure order by the PCB cannot be equated with that of a Vis Major or Act of God but it can only be attributable to the lapses and lacunae on the part of the petitioner, therefore, it cannot be said that the respondents have no right or authority to demand the minimum charges during the subsistence of agreement and unless the agreement is terminated there is a corresponding obligation on the part of the petitioner-industry to pay the minimum charges as per the terms and conditions of supply. In view of the aforesaid facts and circumstances, I do not see any merits in any of the contentions of the petitioner.
The writ petition is accordingly dismissed. There shall be no order as to costs.
*THE HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
+Writ Petition No.5996 of 2001
%25-08-2008
#Zahruddin Ahmed and others
The Land Acquisition Officer
Counsel for the Petitioners: Sri K.Subrahmanya Reddy
Counsel for the Respondents: Asst. Government Pleader for Land Acquisition
:ORDER:
This writ petition is filed for a writ of Certiorari to quash memo No.B/2/12190/93 dated 20-02-2001 passed by the respondent, whereby he rejected the application filed by the petitioners for redetermination of compensation under Section 28-A of the Land Acquisition Act, 1894 (for short "the Act") as barred by time.
Heard Sri K.Subrahmanya Reddy, learned Senior Counsel for the petitioners, learned Assistant Government Pleader for Land Acquisition and perused the record.
The lands of the petitioners, along with others, were acquired for the purpose of extension of agricultural market yard at Nizamabad town. The respondent passed award on 16-01-1976 fixing the compensation at the rate of Rs.7,500/- per acre. The respondent referred the matter pertaining to one Akula Rajanna, whose lands were also acquired under the same notification, to the Civil Court under Sections 30 and 31(2) of the Act as the said Rajanna died and his legal representatives failed to attend the enquiry. The reference was numbered as O.P.No.120 of 1976 and subsequently it was closed as Ajjam Linganna, who is the son of late Rajanna, though served with notice issued by the Civil Court, did not pursue the matter. Subsequently, the said Linganna filed an I.A for reopening of the case and accordingly, the said O.P was reopened and renumbered as O.P.No.471 of 1993. After restoration and renumbering of the O.P, Linganna filed an I.A for amendment of the form of reference to one under Section 18 of the Act and for enhancement of compensation awarded for the acquired land. The said I.A was allowed. The petitioners claimed that as they were not served with Section 12(2) notices, they could not avail their right to seek reference under Section 18 of the Act and that in O.P No.471 of 1993, they filed an application for their impleadment, which was allowed by the reference Court. The reference Court disposed of O.P.No.471 of 1993 on 15-06-1994 by fixing the market value of the acquired lands at Rs.50/- per square yard. The respondent filed A.S.No.1105 of 1994, against the said award and decree, in this Court. He also filed CRP Nos.2279 of 1995 and batch against the order of the reference Court impleading the petitioners and other land owners, who did not make a claim for reference under Section 18 of the Act. By common judgment dated 10-03-1999 passed in CRP Nos.2279 of 1995 and batch and A.S.No.1105 of 1994, this Court allowed the said batch of CRPs and set aside the order impleading the petitioners and others. This Court also allowed the Appeal Suit and set aside enhancement of market value made in favour of Ajjam Linganna. The petitioners and other land owners filed SLPs in the Supreme Court against the orders in the said batch of CRPs. Ajjam Linganna also filed an SLP against the judgment of this Court. The Supreme Court in Ajjam Linganna and others vs. Land Acquisition Officer-Revenue Divisional Officer, Nizamabad1, while confirming the orders of this Court in the batch of CRPs, however, set aside the judgment of this Court in A.S.No.1105 of 1994 and confirmed the award of the Civil Court. The petitioners approached the respondent for redetermination of compensation under Section 28-A of the Act by way of an application dated 29-01-2001. The said application having been rejected, they filed the present writ petition. At the hearing Sri K.Subrahmanya Reddy, learned Senior Counsel appearing for the petitioners, made strenuous efforts to persuade this Court to hold that the application filed by the petitioners, for redetermination of compensation, is within time. The period of three months prescribed in Section 28-A of the Act, contends the learned Senior Counsel, will start running from the date of the judgment of the final appellate Court and not from the award of the reference Court in O.P.
No.471 of 1993. In support of his contention, the learned Senior Counsel relied on the judgment of the Constitution Bench of the Supreme Court in Union of India and another vs. Hansoli Devi and others2, Union of India and another vs. Pradeep Kumari and others3 and the judgments of this Court in Marri Venkaiah and others vs. The Special Deputy Collector (Land Acquistiion), Srisailam Left Bank Channel Unit-2, Gandamvarigudem, Nalgonda District and others4 and Ganthula Seshagiri Rao vs. Collector, East Godavari District, Kakinada and others5.
Opposing the above contention, the learned Assistant Government Pleader for Land Acquisition contended that the words "within three months from the date of the award of the Court" shall be construed as the award of the reference Court as defined in Section 3(d) of the Act and that so construed, the application filed by the petitioners in the year 2001 is far beyond the time limit of three months from 15-06-1994, the date on which the reference Court disposed of the O.P. In support of her contention, she relied on the judgments of the Supreme Court in D.Venkamma and others vs. Special Tahsildar (LA) Unit- IV, Janagareddigudem, West Godavari District6 and
Smt Bhagti (deceased) through her L.Rs., Jagdish Ram Sharma, appellant vs. State of Haryana, respondent7.
I have carefully considered the respective submissions of the learned counsel for the parties.
Under Section 28-A of the Act, the persons, who are aggrieved by the award of the Collector, but have not made an application to him under Section 18 of the Act, are entitled to move the Collector for redetermination of the compensation within three months from the date of the award of the Court. Section 3(d) of the Act defined "Court" as a Principal Civil Court of original jurisdiction, unless the appropriate Government has appointed a special Judicial Officer within any specified local limits to perform the functions of the Court under the Act. Therefore, the only question to be decided in this writ petition is whether the time limit of three months starts running from the date of the award of the reference Court or from the date of the judgment of the Supreme Court in the SLPs filed by the petitioners and Ajjam Linganna. In my considered view, this aspect is no longer res integra in view of the judgments of the Supreme Court in D.Venkamma (6 supra) and Smt Bhagti (deceased) through her L.Rs., Jagdish Ram Sharma (7 supra). In D. Venkamma (6 supra), an identical issue arose for consideration of the Supreme Court. In that case, notification under Section 4(1) of the Act was published on 03-01-1980, award was passed on 31-10-1981, compensation was received by the parties; in the reference made by certain aggrieved parties, the Civil Court enhanced the compensation by its decree dated 21-11-1983 and on appeal filed by the State and cross-objections filed by the claimants, the compensation was further enhanced by the High Court. Based on the judgment of the High Court, the petitioners before the Supreme Court filed an application before the Land Acquisition Officer for redetermination of compensation under Section 28-A of the Act on 16-05-1989. The said application was rejected by the Land Acquisition Officer and writ petition filed by the party was allowed by a learned Single Judge of this Court. However, on appeal, the Division Bench reversed the said judgment. While considering the appeal filed along with the Special Leave Petition by the aggrieved claimant, the Supreme Court in paragraph 3 held as under-
"Section 28-A of the Act speaks of redetermination of the amount of compensation on the basis of the "award of the court" and provides that when the court allows any amount in excess of the amount awarded by the Collector under Section 11, the person or persons interested in all other land covered by the notification under Section 4(1) and who are aggrieved by the award of the Collector may, notwithstanding that he/they had not made an application, by a written application to the Collector within three months from the date of award of the court, require the Collector to redetermine the compensation on the basis of the amount of compensation awarded by the court. In other words, the foundation for making an application under Section 28-A is the award of the court. The expression 'Court' has been defined under Section 3(d) to mean "a principal civil court of original jurisdiction" and in an appropriate case "a special judicial officer" appointed by the Government to perform the functions of the court. In other words, the Court of original jurisdiction which receives an order of reference pursuant to an application made under Section 18 is the civil court of original jurisdiction. By necessary implication, judgment of an appellate court made under Section 54 of the Act does not give right or cause of action to make an application under Section 28-A of the Act." (Emphasis added) In Smt Bhagti (deceased) through her L.Rs., Jagdish Ram Sharma (7 supra), more or less an identical situation arose where the party who did not seek reference under Section 18 of the Act, without making an application under Section 28-A of the Act within the time limit from the decree of the reference Court waited till the disposal of the appeal by the High Court and filed his application, within 30 days from the date of judgment of the High Court. While dealing with the said case, the Supreme Court in paragraph 4 held as under-
"It is contended that the petitioner is entitled to re-determination of compensation on par with others and the question of limitation does not stand in the way. The question, therefore, is; as to when the limitation begins to run for the purpose of filing of an application under Section 28-A of the Act". The Amendment Act 68 of 1984, introducing Section 28-A had come into force with effect from September 24, 1984. Section 28-A envisages giving of benefit to a person who had accepted the award made under Section 11 without protest and did not avail of the reference under Section 18 for further enhancement and others had the award of enhanced compensation. He has been given right to make a written application to the L.A.O within 30 days from the date of the award of the Court excluding the time taken to obtain a certified copy of the award of the Court. It is now fairly well settled legal proposition that the award of the Court is the award of the reference Court under Section 18. That is clear from the statement of the objects and reasons as also from the unequivocal language used in
Section 28-A(1) of the Act. It is equally well settled legal position that once time has begun to run, it will continue to run until it is stayed by an appropriate Court. The remedy, thereafter stands barred. The proviso to Section 28-A(1) only excludes the time actually taken in obtaining the certified copy, while computing the period of three months' limitation prescribed under Section 28-A (1). In other words, the time taken to obtain certified copy alone is to be excluded in computation of limitation of three months. The reference in Jose Antonio's Case,
(1995 AIR SCW 4735), was confined to the question as to which of the two awards, when there are more than one award passed by the reference Court in respect of the land covered under the same notification published under Section 4(1), would give cause of action and to the question (of) limitation to file application under Section 28-A (1). In other words, the question therein was which of the two dates of two awards, furnishes the period of limitation of three months. In the present case in hand that question does not arise. There are no two awards of the reference Court. In scheduled Caste Co-op. Land Owning Society Ltd v. Union of India AIR 1991 SC 730, a Bench of three Judges of this Court held that "it is obvious on a plain reading of sub-section (1) of Section 28-A that it applies only to those claimants who had failed to seek a reference under Section
18. The redetermination has to be done by the Collector on the basis of the compensation awarded by the Court in the reference under Section 18 and an application in that behalf has to be made to the Collector within 30 days from the date of the award. The order of the High Court does not give right to file application under Section 28-A (1)." (Emphasis added)
In view of the above authoritative pronouncements, I am of the considered opinion that in the instant case the time began to run to make an application for redetermination from 15-06-1994 i.e., the date on which the Court, which necessarily means the reference Court, disposed of O.P.No.471 of 1993. Therefore, the rejection of the petitioners' application on the ground that the same is beyond limitation cannot be found fault with.
The learned Senior Counsel, however, placed heavy reliance on the Constitution Bench judgment of the Supreme Court in Union of India and another vs. Hansoli Devi (2 supra). In the said case, the issues, which were referred to the Larger Bench, are as follows:
"1. (a) Whether dismissal of an application seeking reference under Section 18 on the ground of delay amounts to 'not filing an application' within the meaning of Section 28-A of the Land Acquisition Act, 1894?
(b) Whether a person whose application under Section 18 of the Land Acquisition Act, 1894 is dismissed on the ground of delay or any other technical ground is entitled to maintain an application under Section 28-A of the Land Acquisition Act?
2. Whether a person who has received the compensation without protest pursuant to the award of the land Acquisition Collector and has not filed an application seeking reference under Section 18 is 'a person aggrieved' within the meaning of Section 28-A?"
While answering issue 1(a) and (b), the Supreme Court held that to bar a person from invoking the provisions of Section 28-A of the Act, his application for reference must have been answered on merits and mere rejection of his application on the ground of delay cannot be a ground to deny him the benefit under Section 28-A of the Act. There cannot be any quarrel about the said proposition. Indeed following the said judgment, this Court in Guthula Seshagiri Rao vs. Collector, East Godavari District and others8, negatived the contention advanced on behalf of the Collector, East Godavari District that mere rejection of reference on the ground of delay by the reference Court does not bar the application under Section 28-A of the Act. But, I do not see how the proposition laid down in the above mentioned Constitution Bench judgment comes to the aid of the petitioners in this case. Having carefully considered the said judgment, I am of the view that the issue referred to the said Bench and decided by it has no relevance to the issue arising in this case. Similarly, the judgment in Union of India vs. Pradeep Kumari (3 supra) equally has no application, because in the said case, the question was which of the awards that could be made basis for redetermination of compensation under Section 28-A of the Act. The Supreme Court held that having regard to the purpose and object for which Section 28-A of the Act has been inserted, a liberal approach has to be made and that all the benefits which were given in the latter awards shall be made available to the applicant under Section 28-A and not necessarily on the basis of the first of the awards made by the Land Acquisition Officer. This judgment is, therefore, of no avail to the petitioners. The judgment of the Division Bench of this Court in Marri Venkaiah (4 supra) equally has no application to this case, because in the said case the question that was decided was whether the limitation of three months starts running from the date of award or from the date of knowledge of the award. The Division Bench considering the beneficial nature of Section 28-A held that the said provision cannot be liberally construed and that it is only from the date of knowledge of the award that limitation starts running.
For the above mentioned reasons, the writ petition is dismissed.
As a sequel to dismissal of main petition, interim order dated 03-04-2001 is vacated and WPMP No.7638 of 2001 is dismissed. WVMP No.3054 of 2001 is disposed of as infructuous.
?1 2001 (1) ALT 50 (SC)
2 (2002) 7 Supreme Court Cases 273
3 AIR 1995 Supreme Court 2259
4 1994 (1) ALT 491 (D.B)
5 2008 (4) ALD 792
6 (1996) 1 Supreme Court Cases 85
7 AIR 1997 Supreme Court 1793
8 2008 (4) ALD 792