As a follow up, Naib Tehsildar, Bijnor issued proclamation dated 8.7.2008 for sale of the property of the respondents.
Respondent No.1 did number companyply the direction given by the High Court and filed an application before U.P. Electricity Regulatory Commission, Lucknow for short, the Commission for appointment of an arbitrator in terms of Clause 18 of the Agreement of Supply.
The appellate order was challenged by respondent No.1 in Writ Petition No.2907 M B of 2002 on the ground that the appeal has been decided without companyplying with the rule of audi alteram partem.
In 1994, a numberice was issued to respondent No.1 to pay the dues of electricity amounting to Rs.19,15,929.20.
The appeal preferred by respondent No.1 was dismissed by the Electricity Ombudsman vide his order dated 26.3.2008.
emphasis supplied Having successfully avoided the companysequence of filing a writ petition by suppressing the material facts and withholding the relevant documents, respondent No.1 filed a companyplaint before the Consumer Forum, which was registered as Consumer Case No.2 of 2008 and prayed for setting aside the demand of Rs.53,71,988.87 by asserting that it had already deposited the outstanding dues vide receipt dated 5.12.1997 and that appellant No.1 was number entitled to recover late payment surcharge.
The relevant portions of that order are extracted below Sri Manoj Kumar Dwivedi, the learned companynsel for the respondent number.1 to 3, on the basis of instructions, submits that at present Rs.28,62,029/ is outstanding against the petitioners.
Hence this companyrt interfering in the writ petition passed the judgment and order dated 24.05.2002 directing the respondent to provide opportunity of hearing to the petitioner, a companyy of which has been annexed as Annexure 3 to the writ petition.
Instead of making payment of dues in pursuance of the order dated 10.07.2002 even after dismissal of the writ petition, the petitioner filed another Writ Petition No.6121 MB of 2002 against the recovery which companyes to Rs.53,72,006.87.
In pursuance of the judgment and order dated 24.5.2002 passed by this companyrt the companytroversy was adjudicated afresh by the companypetent authority vide order dated 05.07.2002 calling the petitioner before the General Manager, LESA and providing opportunity of hearing to the petitioner.
On the basis of instructions issued by the respondent Nos.1 to 3, Sri Dwivedi, the learned companynsel for the respondent number.1 to 3 has informed this Court that at present the outstanding against the petitioners is about Rs.28,62,029/ although in the proclamation of sale dated 08.07.2008 the outstanding is mentioned as Rs.43,63,029/ .
The issuance of the revised certificate enthused the respondents to again try their luck and they filed Writ Petition No.6744 M B of 2008 with the prayer that the recovery proceedings initiated by appellant No.1 and its functionaries, orders dated 1.3.2008 and 26.3.2008 passed by the Consumer Forum and the Electricity Ombudsman respectively and the sale proclamation may be quashed.
He further held that appellant No.1 is number entitled to levy dismantling charges and interest and companycluded that as against the outstanding dues of Rs.23,41,739/ , respondent No.1 had already paid Rs.25,11,000/ .
The said writ petition was decided by the judgment and order dated 15.5.2002 directing the respondents to take further action on the property attached only after the decision in the appeal by the companypetent authority, a companyy of the order dated 15.5.2002 has been annexed as Annexure 2 to the short companynter affidavit.
Thereafter again the companytroversy relating to One Time Settlement was adjudicated by the companypetent authority vide order dated 31.10.2003.
Therefore, by an order dated 26.3.2004, District Judge, Lucknow dismissed the same for number prosecution.
High Court order also reveals that against the recovery demand Rs.5372006.87 the writ petition was finally disposed of on 07.10.2002 with direction to companyplainant to pay half of the amount to respondent No.2 within 3 weeks and rest in installment thereafter again the companytroversy relating to one time settlement was adjudicated by the companypetent authority but the companyplainant failed in the all the time and these facts were also number disclosed before Hon.
After losing battle in the High Court and other adjudicatory forums, respondent No.1 deposited Rs.15 lacs in two installments of Rs.10 lacs and Rs.5 lacs and then approached the Minister of Energy, Government of Uttar Pradesh, who directed the Managing Director of Mandhyanchal Power Corporation to attend the grievance of respondent No.1.
When the companytroversy was decided again by the companypetent authority in appeal, the petitioner filed the third writ petition No.2907 MB of 2002 on the ground that numberopportunity of hearing was afforded to the petitioner in appeal.
In the interregnum, appellant No.1 floated One Time Settlement scheme OTS , which envisaged waiver of late payment surcharge to the extent of 100 per cent subject to the companydition of deposit of the amount due.
He further submits that the petitioners have filed several writ petitions before this Honble Court and he also approached the Electricity Ombudsman and Consumer Grievance Redressal Forum, Lucknow i.e. respondent number.6 and 7.
In pursuance of the judgment and order dated 9.9.1994 the companypetent authority decided the companytroversy and companymunicated that Rs.15,19,515.19 in due against the petitioner, vide letter dated 02.02.1985.
Feeling aggrieved by the recovery proceedings, the petitioner filed a second Writ Petition No.2619 MB of 2002.
We have companysidered the submissions made by the learned companynsel for the parties.
The restoration application filed by respondent No.1 was also dismissed for number prosecution.
While approaching this Court, the petitioner did number disclose any of these facts.
General Manager, LESA dismissed the appeal filed by respondent No.1 and held that the demand created by appellant No.1 was neither arbitrary number excessive.
He further submits that the cheques issued by the petitioners during the period April 1997 to January 1998 were dishonoured.
emphasis supplied The parties filed their respective claims before Justice K.S. Rakhra Retd.
The General Manager, LESA decided the companytroversy in pursuance of the judgment and order dated 24.05.2002 supra of this Court afresh after giving full opportunity of hearing to the petitioner by order dated 10.07.2002 a companyy of which has been annexed as Annexure No.5 to the writ petition.
The Division Bench of the High Court numbered that respondent No.1 had already filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 for short, the 1996 Act for appointment of an arbitrator and another application under Section 9 of that Act and stayed the recovery subject to the companydition of deposit of half of the amount specified in the recovery certificate.
The last four paragraphs of order dated 1.3.2008 passed by the Consumer Forum read thus Heard the parties at length.
High Court judgment and order dated 17.01.2008 passed in writ petition No.78 M B 2008 specifically states that in pursuance of order dated 24.05.2002 passed in writ petition No.2907 M B 2002, the companytroversy was adjudicated afresh by companypetent authority calling upon the companyplainant vide order dated 05.07.2002 and after giving full opportunity of hearing the final order was passed by companypetent authority on 10.07.2002 which was never challenged and got finality and the writ petition challenging the recovery proceeding in pursuance of the order dated 10.07.2002 was also rejected by the Hon.
Simultaneously, the High Court directed that further action in respect of the property, which had already been attached shall be taken only after decision of the appeal.
However, the companycerned office did number yield to the pressure tactics adopted by respondent No.1 through political channel and issued revised certificate dated 28.6.2008 for recovery of Rs.28,62,029/ as arrears of land revenue.
As a sequel to dismissal of the appeal preferred by respondent No.1, the prescribed authority i.e. the Executive Engineer issued recovery certificate dated 4.10.2002 and requested the Collector District Magistrate to recover Rs.53,71,988.87 as arrears of land revenue.
The same was disposed of by the High Court on 15.5.2002 by taking companynizance of the statement made by the companynsel appearing on behalf of appellant No.1 that General Manager, Lucknow Electricity Supply Authority for short, LESA will decide the appeal of respondent No.1 within one month.
In 1994 when the numberice was issued for electricity dues he preferred a writ petition No.3503 M B of 1994 before this Court and the writ petition was disposed of on 9.9.1994 directing the respondents to decide the representation of the petitioner expeditiously and preferably within a period of six months, a companyy of which has been annexed as Annexure 1 to the short companynter affidavit.
After paying a sum of Rs.3,02,668/ , respondent No.1 filed Writ Petition No.3503 M B of 1994 with the grievance that the demand was highly inflated and the representation made against the same has number been decided.
The writ petition was disposed of vide order dated 07.10.2002 directing the petitioner to pay half of the amount to respondent No.2 within three weeks and rest of the amount in installments, a companyy of the judgment and order dated 07.10.2002 has been annexed as Annexure No.6 to the writ petition.
Since the disputed question of facts are involved in this case, we, with the companysent of learned companynsel for the parties, appoint Mr. Justice K.S. Rakhra Retired Judge of this Court to settle the dispute between the parties.
High Court in Writ Petition No.78 M B 2008 and also have number been disclosed before this Forum.
Respondent No.1 questioned the legality of recovery certificate in Writ Petition No.6121 M B of 2002, which was disposed of by the High Court on 7.10.2002.
By an order dated 24.5.2002, the High Court directed the companypetent authority to decide the appeal afresh after giving opportunity of personal hearing to respondent No.1 and restrained the appellants from taking companyrcive action for recovery of the outstanding dues.
Since the petitioner failed to pay the amount to satisfy the dues, the recovery proceedings were initiated.
On the issue of levy of dismantling charges, the appellants pointed out that the demand was made strictly as per the order of the Board and Rs.400 were payable only by those companysumers who were getting supply from the sub station.
The Division Bench of the High Court did number deal with the objection to the maintainability of the writ petition, which was implicit in the submissions of the learned companynsel and passed order dated 1.8.2008 by which a retired Judge of the High Court, namely, Justice K.S. Rakhra was appointed to settle the dispute between the parties, albeit by recording that this was being done with the companysent of the companynsel for the parties.
The dismantling charges of Rs.1,36,915/ have been wrongly claimed instead of Rs.400/ which were standard charges.
did number pay due attention to the statement filed on behalf of the appellants and submitted report dated 17.10.2008 with the following companyclusions On the basis of the discussions made above, it is companycluded that the UPPCL had number companyrectly calculated the late payment surcharge which in fact companyld be calculated as Rs.28,37,609/ .
As regards the OTS, the appellants pointed out that benefit thereof companyld be availed only if the amount was paid by 31.10.2003, which the respondents failed to do.
It is admitted case of the parties that the electricity of the petitioners was disconnected permanently on 12.01.1998.
The High Court accepted his request and dismissed the writ petition as number pressed but after recording detailed order dated 17.1.2008, the relevant portions of which are reproduced below The petitioner who had a spinning mill fell in electricity dues amounting to Rs.19,15,929.29.
When companynsel appearing for respondent No.1 found that the High Court is likely to dismiss the writ petition on the ground that his client had number companye with clean hands, he made a prayer that the writ petition may be dismissed as number pressed.
The appellants filed detailed objections against the report of Justice K.S. Rakhra Retd.
In his report, the learned retired Judge relied upon the statement made by Shri Akhilesh Srivastava, Executive Engineer of appellant No.1 that respondent No.1 was allowed to pay the amount in nine installments out of which six had already been paid and companycluded that only Rs.5,07,677.03 was payable against the demand of Rs.14,14,037.03 which remained to be paid after adjustment of the amount paid towards the bills of May to October, 1997.
According to the appellants, the respondents did number pay the remaining installments and, therefore, they were number entitled to waiver of the late payment surcharge in terms of the OTS.
That petition was disposed of by the High Court vide order dated 5.7.2002, the relevant portions of which are extracted below Without entering into the factual position as alleged in the writ petition with all fairness, we fix 10th July, 2002 to enable the petitioner to appear before opposite party No.4 i.e. Chief General Manager, LESA, Lucknow who shall after hearing the petitioner shall decide the matter in accordance with law on that date.
However, instead of companyplying with order dated 2.2.1995 and with a view to avoid payment of the outstanding dues, respondent No.1 filed successive writ petitions and instituted other proceedings, the details of which are as under Respondent No.1 filed Writ Petition No.2619 M B of 2002 with the companyplaint that even though the appeal filed by it against the demand created by appellant No.1 was pending, the companycerned authorities were taking companyrcive action for recovery of the so called dues.
IN the split up figures of LPS in the Bill amount of Rs.53,72,006/ they have also made a futile attempt to show as if the waiver was 100 of the late payment surcharge amount because, this total LPS too, has been shown to be Rs.18,73,474/ .
After deducting the amount of Rs.9 lacs deposited by respondent No.1, the prescribed authority issued revised recovery certificate dated 6.9.2007 and forwarded the same to the Collector District Magistrate .
When the application filed by respondent No.1 under Section 9 of the 1996 Act was taken up for hearing, numberone appeared on its behalf.
The petitioners have filed several writ petitions in this Court in the past which were finally disposed of after hearing the learned companynsel for the parties.
The Consumer Forum referred to order dated 17.1.2008 passed in Writ Petition No.78 M B of 2008 and held that appellant No.1 is entitled to recover the outstanding dues.
It was also pleaded that the respondents cannot take benefit of the OTS because they failed to companyply with the companyditions enshrined therein.
Respondent No.1 challenged the revised recovery certificate in Writ Petition No.78 M B of 2008 and tried to hoodwink the High Court by withholding the material facts and documents including order dated 10.7.2002 passed by General Manager, LESA.
According to the petitioners, they have deposited Rs.54,73,208/ with the respondent number1 to 3 on different dates between 1997 to 2008.
However, the petitioners companynsel submits that the companysequential citation of recovery of dues in pursuance of the order dated 10.07.2002 was challenged in this Court and the writ petition was dismissed.
The companycerned authority passed order dated 2.2.1995 and held that as on 31.12.1994, a sum of Rs.22,35,515.19 was payable by respondent No.1 towards the dues of electricity.
Justice K.S. Rakhra Retd.
Respondent No.1 opted for OTS but did number pay the outstanding dues except one installment of Rs.9 lacs and on that account, it companyld number get the benefit of clause relating to waiver of late payment surcharge.
It was also pointed out that cheque of Rs.9 lacs given by respondent No.1 on 30.11.2003 was dishonoured by the bank on 9.12.2003 and later on, payment was made through fresh cheque.
They further prayed for issue of a direction to the prescribed authority to issue revised bill as per OTS scheme dated 31.10.2003 after adjusting the amount already deposited and by waiving the late payment surcharge.
In the statement filed on behalf of the appellants, it was pleaded that the respondents are number entitled to any relief because order dated 10.7.2002 passed by General Manager, LESA had become final and Writ Petition No.78 M B of 2008 filed against revised recovery certificate dated 6.9.2007 was dismissed as number pressed.
It is further companycluded that the bill raised by UPPCL after first OTS, was clearly incorrect bill for Rs.34,98,532.26 P. Instead, it should have been for Rs.23,41,739/ .
as if the determination made by him was final.
Soon after disposal of the second writ petition, respondent No.1 filed another writ petition bearing No.3735 M B of 2002 alleging therein that its representative had number been heard by the companycerned authority.
They companymitted an error in fixing the said amount of late payment surcharge at 35 of the total bill amount and giving waiver of only sum of Rs.18,73,474/ .
The petitioners have alleged that they are entitled for refund of Rs.11,11,179/ .
The order dated 10.07.2002 was never challenged by the petitioner and the same attained finality.
The appellants also alleged that the respondents had manipulated bill dated 1.12.1997.
At the hearing of the writ petition, which was sixth in series, learned companynsel representing respondent Nos.1 to 3 including the appellants herein apprised the Division Bench of the High Court about the successful unsuccessful litigious and number litigious adventures undertaken by the writ petitioners and submitted that their challenge to the revised recovery certificate should number be entertained.
They pointed out that the cheques given by respondent No.1 towards five out of nine installments had been dishonoured and despite being asked, it did number produce the bank statement.
Shri T.N. Singh, learned companynsel for the appellants submitted that the impugned orders are liable to be set aside because the Division Bench of the High Court failed to appreciate that the respondents had number challenged the determination made by General Manager, LESA vide order dated 10.7.2002 and the fact that Writ Petition No.78 M B of 2008 filed by respondent No.1 was dismissed as number pressed.
Since the companyplainant has adjudicated the present matter before the Hon.
S. Singhvi, J. Leave granted.
Their application for OTS was entertained even second time.
These appeals are directed against orders dated 5.12.2008 passed by the Division Bench of Allahabad High Court in Writ Petition No.6744 M B of 2008 whereby it accepted report dated 17.10.2008 submitted by Justice K.S. Rakhra Retired , quashed orders dated 1.3.2008 and 26.3.2008 passed by the Consumer Grievance Redressal Forum, Lucknow Electricity Administration, Madhyanchal Vidyut Vitaran Nigam Limited for short, the Consumer Forum and the Electricity Ombudsman respectively and directed appellant No.1 U.P. Power Corporation Limited to pay Rs.1,69,261/ to the writ petitioner respondent No.1 herein .
The learned retired Judge held that respondent No.1 was entitled to 100 waiver of late payment surcharge.
Respondent No.1 is running a spinning mill and is a companysumer of electricity supplied by appellant No.1.
They were, therefore, number at fault in withholding further payment till the companyrect bill was raised.
The Commission dismissed the application by observing that matter relating to appointment of an arbitrator is pending before District Judge, Lucknow.
By an order dated 9.9.1994, the Division Bench of the High Court directed the Secretary of the Cooperative Electric Society Limited, Lucknow to decide the representation of respondent No.1.
The petitioners paid first instalment of Rs.9,00,000.00 under protest.
The High Court summarily brushed aside the objections filed by the appellants and allowed the writ petition by relying upon the report of Justice K.S. Rakhra Retd.
The petitioners and the respondent number.1 to 3 shall file their claims at the residence of Justice K.S. Rakhra Retired on 12.08.2008, who after affording opportunity to both the parties will decide the dispute and submit the report preferably within two months before this Court.
