Shree Steel Industries Vs. Western Electricity Supply Company of Orissa Ltd. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. orderheard miss s.l. patnaik, learned counsel for the petitioner and mr. b.k. nayak, learned counsel for o.ps.1. the petitioner is a partnership firm and is engaged in manufacturing iron and steel rods in the district of jharsuguda. for non-payment of the outstanding loan dues by one m/s. konark ferro alloys pvt. ltd., jharsuguda, to the orissa state financial corporation, the said unit was put to auction and the petitioner purchased the properties of the said unit and running the unit at jharsuguda. the powej supply to m/s. konark ferro alloys pvt. ltd. was disconnected because of non-payment of electrical dues to the tune of rs. 6,16,307.01 and disconnection was made on 24.4.20o1. after taking over the aforesaid unit, when the petitioner applied for supply of power by entering into an agreement with the o.ps., the o.ps. initially demanded payment of the dues outstanding against the previous consumer, i.e., m/s. konark ferro alloys pvt. ltd., and thereafter the petitioner entered into an agreement, vide annexure-5, purported to be in standard agreement form, for supply of electrical energy to its unit and as the petitioner was in need of electrical energy to run its unit, it was forced to pay a sum of rs. 1,50,000/- which the petitioner was not legally liable to pay. now the present writ application has been filed for a direction to the o.ps. to refund the aforesaid amount to the petitioner on the ground that the petitioner being the auction purchaser of the unit was not liable to pay the dues outstanding against the previous consumer, i.e., m/s. konark ferro alloys pvt. ltd., which was covered by a separate agreement.2. according to miss patnaik, by no stretch of imagination, the petitioner can be made liable to pay the said amount even if for the sake of getting the power supply under the most disadvantages circumstances, when it started its industry, it paid a sum of rs. 1,50,000/- towards the outstanding dues of m/s. konark ferro alloys pvt. ltd. the point raised by miss patnaik is no more res integra in view of the decision of this court in the case of sunil rajgharhia v. orissa state financial corporation and anr. 2003 (i) olr 260, wherein it was held that the auction purchaser cannot be made to pay the liability of the previous contracting party for supply of electricity. learned counsel for the petitioner also refers to another decision of this court in the case of ajay kumar 2006 (supp.-ii) olr 407 agrawal v. o.s.f.c. : air2007ori37 , wherein it was held-20. a perusal of clause 9 makes it clear that by not referring the name of its erstwhile consumer, namely, m/s. maa bhawani rice industries, wesco in clause 9 of the agreement has referred to the earlier agreement dated 24.12.1992 presumably with m/s. maa bhawani rice industries and provided that all arrears and liabilities under the old and superseded agreement shall be treated as arrears and liabilities under the present agreement. it has already been noted that wesco has no such power under the statute to treat arrears under the superseded agreement as arrears under the present agreement. therefore, the said clause on the face of it is ultra vires the provision of section 43 of the said act which fastens an obligation on wesco to supply electricity to a consumer.3. in the particular case, the stand taken by the learned counsel for the o.ps.-wesco is that the petitioner on its own volition entered into the agreement with the o.ps. agreeing to pay the dues of the previous consumer. the learned counsel for the o.ps. draws our attention to clause-8 of the present agreement (annexure-5). though the name of the previous consumer is not reflected therein, the following is the covenant in clause-8:(8) provided that all arrears and liabilities under the old or superseded agreement shall be treated as arrears and liabilities under the present agreement.learned counsel for the o.ps. tries to distinguish this case from the cases referred to by the petitioner and submits that petitioners in the cases cited above had not agreed to pay the dues whereas in the case at hand the petitioner has lost its right to agitate the matter as it has agreed to such a condition, which is incorporated in clause-8 of the standard agreement (annexure-5).in this regard, we may say that execution of standard agreement for supply of electricity energy is provided under regulation 15 of the orissa electricity regulatory commission distribution (conditions of supply) code, 1998. the standard agreement so prescribed in form-3 of the said code contains eight clauses. the content of clause-8 of the present agreement (annexure-5) does not find place in the standard agreement so prescribed in form-3. the insertion has been done in the statutory agreement by the o.p., which it could not have been. same was the case in ajay kumar agrawal (supra) wherein this court held that the supplier had no power under the statute to treat arrears under the superseded agreement as arrears under the present agreement. therefore, even if the petitioner has entered into such an agreement and paid a sum of rs. 1,50,000/- towards the arrear and liability under the superseded agreement in order to get the power supply to its unit, clause-8 of the agreement on the face of it is ultra vires the provisions of section 43 of the electricity act, 2003.therefore, we allow this writ application and direct the o.ps. to adjust the amount of rs. 1,50,000/- which the petitioner has paid, against its future bills.

Judgment:
ORDER

Heard Miss S.L. Patnaik, learned Counsel for the petitioner and Mr. B.K. Nayak, learned Counsel for O.Ps.

1. The petitioner is a partnership Firm and is engaged in manufacturing iron and steel rods in the district of Jharsuguda. For non-payment of the outstanding loan dues by one M/s. Konark Ferro Alloys Pvt. Ltd., Jharsuguda, to the Orissa State Financial Corporation, the said unit was put to auction and the petitioner purchased the properties of the said unit and running the unit at Jharsuguda. The powej supply to M/s. Konark Ferro Alloys Pvt. Ltd. was disconnected because of non-payment of electrical dues to the tune of Rs. 6,16,307.01 and disconnection was made on 24.4.20O1. After taking over the aforesaid unit, when the petitioner applied for supply of power by entering into an agreement with the O.Ps., the O.Ps. initially demanded payment of the dues outstanding against the previous consumer, i.e., M/s. Konark Ferro Alloys Pvt. Ltd., and thereafter the petitioner entered into an agreement, vide Annexure-5, purported to be in Standard Agreement Form, for supply of electrical energy to its unit and as the petitioner was in need of electrical energy to run its unit, it was forced to pay a sum of Rs. 1,50,000/- which the petitioner was not legally liable to pay. Now the present writ application has been filed for a direction to the O.Ps. to refund the aforesaid amount to the petitioner on the ground that the petitioner being the auction purchaser of the unit was not liable to pay the dues outstanding against the previous consumer, i.e., M/s. Konark Ferro Alloys Pvt. Ltd., which was covered by a separate agreement.

2. According to Miss Patnaik, by no stretch of imagination, the petitioner can be made liable to pay the said amount even if for the sake of getting the power supply under the most disadvantages circumstances, when it started its industry, it paid a sum of Rs. 1,50,000/- towards the outstanding dues of M/s. Konark Ferro Alloys Pvt. Ltd. The point raised by Miss Patnaik is no more res integra in view of the decision of this Court in the case of Sunil Rajgharhia v. Orissa State Financial Corporation and Anr. 2003 (I) OLR 260, wherein it was held that the auction purchaser cannot be made to pay the liability of the previous contracting party for supply of electricity. Learned Counsel for the petitioner also refers to another decision of this Court in the case of Ajay Kumar 2006 (Supp.-II) OLR 407 Agrawal v. O.S.F.C. : AIR2007Ori37 , wherein it was held-

20. A perusal of Clause 9 makes it clear that by not referring the name of its erstwhile consumer, namely, M/s. Maa Bhawani Rice Industries, WESCO in Clause 9 of the agreement has referred to the earlier agreement dated 24.12.1992 presumably with M/s. Maa Bhawani Rice Industries and provided that all arrears and liabilities under the old and superseded agreement shall be treated as arrears and liabilities under the present agreement. It has already been noted that WESCO has no such power under the statute to treat arrears under the superseded agreement as arrears under the present agreement. Therefore, the said clause on the face of it is ultra vires the provision of Section 43 of the said Act which fastens an obligation on WESCO to supply electricity to a consumer.

3. In the particular case, the stand taken by the learned Counsel for the O.Ps.-WESCO is that the petitioner on its own volition entered into the agreement with the O.Ps. agreeing to pay the dues of the previous consumer. The learned Counsel for the O.Ps. draws our attention to Clause-8 of the present Agreement (Annexure-5). Though the name of the previous consumer is not reflected therein, the following is the covenant in Clause-8:

(8) Provided that all arrears and liabilities under the old or superseded agreement shall be treated as arrears and liabilities under the present agreement.

Learned Counsel for the O.Ps. tries to distinguish this case from the cases referred to by the petitioner and submits that petitioners in the cases cited above had not agreed to pay the dues whereas in the case at hand the petitioner has lost its right to agitate the matter as it has agreed to such a condition, which is incorporated in Clause-8 of the Standard Agreement (Annexure-5).

In this regard, we may say that execution of Standard Agreement for supply of electricity energy is provided under Regulation 15 of the Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 1998. The Standard Agreement so prescribed in Form-3 of the said Code contains eight clauses. The content of Clause-8 of the present agreement (Annexure-5) does not find place in the Standard Agreement so prescribed in Form-3. The insertion has been done in the statutory agreement by the O.P., which it could not have been. Same was the case in Ajay Kumar Agrawal (supra) wherein this Court held that the supplier had no power under the statute to treat arrears under the superseded agreement as arrears under the present agreement. Therefore, even if the petitioner has entered into such an agreement and paid a sum of Rs. 1,50,000/- towards the arrear and liability under the superseded agreement in order to get the power supply to its unit, Clause-8 of the agreement on the face of it is ultra vires the provisions of Section 43 of the Electricity Act, 2003.

Therefore, we allow this writ application and direct the O.Ps. to adjust the amount of Rs. 1,50,000/- which the petitioner has paid, against its future bills.