Bombay Rubber vs Bses Yamuna Power Limited

Hima Kohli, J.—The present petition is filed by the petitioner praying inter alia for directions to the respondent/BSES YPL to refund to the

petitioner, the amount of Rs. 10 lacs deposited with it, in compliance of the orders dated 27.06.2005 passed in W.P.(C) No.10519/ 2005

alongwith interest @ 18% p.a. from the date of deposit till the date of actual payment. The petitioner has also sought a direction to the respondent

to not add as arrears in any future bill, the amount mentioned in the bill with due date 24.06.2005 (Annexure P-8), which stood withdrawn vide

order dated 14.09.2005 passed in the aforesaid writ petition. The petitioner has further sought litigation costs etc.

The brief relevant facts of the case are that on 19.05.2005, an inspection was carried out by the officers of the respondent at the industrial

premises of the petitioner situated at Anand Parbat Industrial Area. During the said inspection, as per the respondent certain irregularities were

noticed and a case for illegal abstraction of electrical energy was sought to be made out against the petitioner. Subsequent to the inspection, the

petitioner was issued a notice to show cause dated 19.05.2006 and it was called upon to attend a personal hearing on 26.05.2005. The petitioner

responded to the show cause notice by submitting a representation dated 26.05.2005. On the same date, the representatives of the petitioner

made their submissions before the Assessing Officer of the respondent. After hearing the petitioner, a speaking order dated 06.06.2005 was

passed by the respondent, wherein the petitioner was held guilty of dishonest abstraction of energy. Along with the aforesaid order, the respondent

raised on the petitioner, the impugned bill of Rs. 43,94,007/- with the due date of 24.06.2005.

Aggrieved by the aforesaid action of the respondent, the petitioner preferred a writ petition in this Court registered as W.P.(C)

No.10519/2005. Notice was issued in the aforesaid writ petition vide order dated 27.06.2005. In the interim application for stay preferred by the

petitioner, it was ordered that there would be a stay of recovery of the bill dated 24.06.2005 (Annexure P-9) subject to the petitioner depositing a

sum of Rs. 10 lacs with the respondent within one week. As per the counsel for the petitioner, the aforesaid amount was duly deposited with the

respondent within the time granted. Subsequently, the aforesaid writ petition came to be disposed of vide order dated 14.09.2005 (Annexure P-

10) which reads as follows:

W.P.(C) No. 10519/2005

Learned counsel for the parties agree that the writ petition could be disposed of on the following consent terms:

i) Impugned order (Annexure P-1) be treated as withdrawn and as a consequence thereof impugned bill having due date 24.6.2005 (Annexure A-

1 to CM.No.7773/05) be treated as withdrawn.

ii) Respondent would supply hard copy of CMRI data to the petitioner which of. necessity would include the data pertaining to MDI which counsel

agree is a half hourly, record of computation of voltage, current consumed as also the load.

iii) Petitioner would submit a response to the show cause notice in the context of the data provided by the respondent.

iv) Petitioner would be granted an oral hearing on 30.9.2005 by the Assessing Officer.

v) Reasoned and speaking order would be passed

vi) In light of the order passed, action pertaining to billing would be taken in conformity with the order.

Needless to state that the respondent would be permitted to take into consideration the videograph of the record of inspection while passing the

fresh order. It is recorded that the CD of the videograph has already been supplied to the petitioner.

Needless to state, remedies as per law would be available to the petitioner if petitioner is aggrieved by the order which would be passed.

It is hoped and expected that the order which would be passed would collate the CMRI and MDI data and would bring out the findings in the

context of the data so that the validity of the order, if at all challenged, could be appreciated by this Court without analysis of the primary data.

Hard copy of the CMRI and MDI data would be supplied by counsel for the respondent to counsel for the petitioner within three days from

today.

If petitioner has deposited a sum of Rs. 10 lacs pursuant to the interim order passed on 27.6.2005, adjustment thereof would be given to the

petitioner.

Petition stands disposed of.

Dasti.

After passing of the aforesaid order, the respondent granted two hearings to the petitioner - the first one on 09.11.2005 and the second one on

03.04.2006. It is submitted by the learned Senior Advocate for the petitioner that thereafter, no reasoned speaking order was passed by the

respondent and it continued to retain the sum of Rs. 10 lacs deposited by the petitioner in compliance of the order dated 27.06.2005 passed in the

aforesaid writ petition, thus, compelling the petitioner to approach this Court by way of the present petition, seeking refund of the aforesaid amount

along with interest calculated @18% p.a.

Learned Counsel appearing for the respondent submits that the reason a speaking order has not been passed in the present case is because of

the fact that the Corporate, Legal and Enforcement Cell of the respondent had been shifted in the year 2005 from Andrews Ganj, New Delhi to

Patparganj, Delhi on account of internal re-structuring of the company. Due to the said re-structuring, the files of the respondent were shifted to the

new office. The petitioner was also informed that a personal hearing would be granted to it on 23.04.2006 at the new office of the respondent.

However, during the process of shifting, the original files relating to the present case got misplaced and despite best efforts made by the

respondent, the same could not be traced and hence no reasoned orders could be passed. It is stated by the counsel for the respondent that the

respondent is ready and willing to grant a hearing to the petitioner even today and pass a speaking order thereafter.

The aforesaid submission is vehemently opposed by the learned Senior Counsel appearing for the petitioner who submits that in view of the

provisions of Regulation 26(iii) of the DERC Regulations, 2002, the respondent was required to pass a speaking order within 15 days from the

date of the submissions made by the consumer and once that period has elapsed, no further proceedings can take place in respect of the case of

theft/DAE, irrespective of whether the same is established or not. He further submits that the aforesaid period of 15 days was further reduced to 3

days by DERC in the Regulations of the year 2007. He, thus, submits that the respondent having grossly defaulted in passing a speaking order

within a reasonable time from the date of the last hearing given to the petitioner, i.e. on 23.04.2006, it cannot be permitted to make good that

default by offering to give a fresh hearing today. It is also submitted that the respondent has grossly violated the order dated 14.09.2005 passed in

the earlier writ petition and it cannot be permitted to take the plea that it would grant a fresh hearing to the petitioner at this belated stage and pass

a speaking order thereafter.

This Court has heard the counsels for the parties and considered their respective submissions. The factual matrix of the case is undisputed. In the

present case, this Court is required to see whether just and sufficient cause has been shown by the respondent for failing to pass a reasoned

speaking order in terms of the order dated 14.09.2005 passed in W.P.(C) No.10519/2005. The explanation given by the respondent for non-

passing of the speaking order is that the files pertaining to the present case were misplaced when the respondent''s office was shifted from

Andrews Ganj to Patparganj. However, it is pertinent to note that while the first hearing was given to the petitioner on 09.11.2005 at the office of

the respondent at Andrews Ganj, the second hearing was given to the petitioner on 03.04.2006 at the Patparganj office. The basis of the second

hearing was a notice dated 27.03.2006 issued by the respondent to the petitioner. If at all the file of the petitioner was misplaced during the shifting

as claimed by the respondent, it is not understood as to what was the material available with the respondent which formed the basis of issuing the

notice to the petitioner, after the respondent had shifted its office to the new premises. It is not the case of the respondent that only a part of the file

of the case was lost, rather it is stated that the entire file was lost. In such circumstances, this Court is not at all satisfied by the explanation sought

to be offered by the respondent for not passing a reasoned speaking order as directed in the earlier proceedings. Further, grant of any indulgence

to the respondent at this stage would be unjustified as it is not the respondent which has approached the Court for seeking extension of time for

passing a speaking order. Rather, it is the petitioner, who has preferred the present petition in August 2010, after waiting patiently, for a period of

almost 6 long years, for a speaking order to be passed by the respondent. Therefore, this Court is of the opinion that this is a fit case where the

respondent ought to refund the amount deposited by the petitioner in compliance of the order dated 27.06.2005 passed in W.P.(C)

No.10519/2005, along with simple interest calculated @ 10% p.a.

At this stage, counsel for the respondent states that the order dated 14.09.2005 mentions the fact that the amount deposited by the petitioner

would be adjusted in the future bills. This submission would have been acceptable had the respondent passed a speaking order within a reasonable

time, but since the same has not been done, the said submission made by the counsel for the respondent can only be partly accepted by directing

the respondent to refund to the petitioner, within a period of six weeks from today, 50% of the total amount lying deposited with it, i.e.,5 lacs

alongwith the interest accrued on the entire amount of Rs. 10 lacs from the date of receipt of payment till the date the amount is refunded to the

petitioner. The remaining sum of Rs. 5 lacs shall be retained by the respondent to be adjusted in the bills raised on the petitioner from the next

billing cycle after September, 2011.

The petition is allowed in the above terms while imposing costs of Rs. 10,000/- to be paid by the respondent to the petitioner along with the

aforesaid amount.