At, Supreme Court of India
By, THE HONOURABLE MR. JUSTICE ROHINTON FALI NARIMAN & THE HONOURABLE MR. JUSTICE SANJAY KISHAN KAUL
For the Appellant: Arvind Kumar Shukla, Alok Shukla, Amit Shukla, Sweta Rani, Nihal Ahmad, Advocates. For the Respondents: Pradeep Misra, Indu Misra, Suraj Singh, Advocates.
The present dispute concerns itself as to whether the appellant, who is a HV-2 consumer of electricity, has to pay electricity tariff based on the urban rate of tariff or the rural rate of tariff.
2. On 13.11.2002, the Executive Engineer, in an Office Memorandum, held that the appellant would have to pay electricity on the rural schedule rate, which Office Memorandum was quashed by an order dated 22.10.2003 stating that the appellant would have to be charged on the basis of the urban schedule rate.
3. Since the difference between the two rates, at that point of time, came to an amount ofRs.18,21,576/- this was demanded by a letter dated 03.11.2003 issued by the Deputy General Manager.
4. The appellant went before the U.P. Electricity Regulatory Commission, and by a judgment dated 03.09.2004, it was held that the billing will have to be done on the rural basis. However, it was also further held that the licensee will also levy penalty on account of peak hour/restricted hours as per tariff schedule.
5. In a review petition before the Regulatory Commission, the penalty ofRs.2.42 Crores that was demanded pursuant to the order dated 03.09.2004 was set aside. In a challenge to this order before the Appellate Tribunal, by the impugned judgment dated 19.07.2012, the Appellate Tribunal held that the State Commission would have no jurisdiction to enter into individual disputes relating to individual billing of electricity. Having so held, it however, went on to opine on merits that the appellant will have to pay in accordance with urban and not rural rates.
6. Mr. Arvind Kumar Shukla, learned counsel, appearing on behalf of the appellant, has argued before us that having found that the State Commission has no jurisdiction to proceed further in the matter, the Appellate Tribunal could not have gone on to decide the case on merits.
7. Mr. Pradeep Misra, learned counsel, for the respondent, points out that this may be correct, but that this would also include the penalty order that was set aside in review, so that the penalty would resuscitate as a result of the Appellate Tribunal's findings.
8. Having heard the learned counsel on behalf of both the parties, we are of the view that the Appellate Tribunal could not have gone on to decide the matter on merits and further hold that the appellant is liable to pay at urban rates. Consequently, this part of the Appellate Tribunal judgment is set aside.
9. It goes without saying that since the first part of the judgment on maintainability is upheld by us, the penalty order pursuant to the order dated 03.09.2004 must also go. With these observations, the appeals are disposed of.
10. By our interim order dated 16.09.2013, we had referred to an amount being deposited by the appellant with the Registry of this Court, which shall be permitted to be withdrawn by the respondent-Corporati
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on on condition that in the event of the appellant succeeding in the matter, the amount shall be returned to the appellant with 12 per cent interest thereon within such time as may be prescribed by the Court. This amount will now, consequent upon our order, be allowed to be withdrawn by the appellant with accrued interest.