SUPERINTENDING ENGINEER (O&M) MADHYA PRADESH PASCHIM KSHETRA VIDYUT VITRAN CO. & ORS Vs. NATIONAL STEEL AND AGRO INDUSTRIE LTD.

JUDGEMENT

(1.) Petitioner is seeking review of the order dated 22/10/2018 passed by the division bench in WP No.22734/2017 allowing the writ petition by holding that instead of penalty, writ petitioner (respondent No.1 herein) is liable to pay interest on the amount of actual maximum demand charges and actual TMM charges and further issuing a direction to raise fresh demand for the period of unauthorised use at the rates equal to the tariff rules applicable to actual minimum demand charges along with interest thereon at agreement rate of interest.

(2.) The respondent No.1 runs a steel industry. On 4/4/2015 a team of officers of the review petitioner MPPKVVCL had visited the premises of respondent No.1 and had found unauthorised use of electricity by respondent No.1. The provisional assessment order dated 16/4/2015 was passed and demand of Rs.49,30,64,654/- was raised. Objections were submitted by respondent No.1 against provisional assessment order and thereafter final assessment order dated 13/5/2015 determining the liability of Rs.49,30,64,654/- for the period May 2009 to February 2015 was passed. These orders were subject matter of challenge in WP No.2814/2015 which was initially allowed by the learned Single Judge by order dated 28/7/2015 but WA No.494/2015 was allowed by the division bench and order of single bench was set aside and writ petition was dismissed. SLP against this order was also dismissed. The respondent No.1 then submitted representation for fixing the instalments to pay the amount and the prayer to that extent was allowed and respondent No.1 was allowed to pay the balance amount in 36 instalments. The respondent No.1 filed second writ petition being WP No.22734/2017 again challenging the assessment order and demand note and also challenged the constitutional validity of Sec.126(6) of Electricity Act and questioning imposition of penalty and levy of compound interest @ 16% per annum. Since constitutional validity of a statutory provision was challenged, therefore, writ petition was listed before the division bench but at the time of final hearing, respondent No.1 did not press the constitutional validity of Sec.126(6) and division bench by the judgment under review had allowed the writ petition.

(3.) Learned counsel for review petitioner submits that the division bench had no jurisdiction to hear the petition once challenge to the vires of Sec.126(6) of the Electricity Act was given up. He further submits that after dismissal of earlier writ petition second writ petition on the same ground could not be entertained. He has also submitted that there is error apparent on the face of record as this court has held the provision u/S.126(6) of the Act as penal provision and in this regard the judgments of the Supreme Court in the case of Executive Engineer southern Electricity Supply Co. of Orissa Vs. Sitaram Rice Mills (2012) 2 SCC 108 and The Chairman, SEBI Vs. Shri Ram Mutual Funds and another (2006) 5 SCC 361 have not been noticed by this court. He has also submitted that direction to levy interest at the agreed rate runs counter to provisions contained u./S.127(6) of the Act which has not been considered by this court and the direction to raise fresh demand at the rate equal to the tariff rules applicable to actual minimum demand charges runs counter to the provisions contained u/S.126(6) of the Act which has also not been noticed by this court and while invoking the principles of mens rea for levy of penalty the law settled by the Hon'ble Supreme Court in the matter of Executive Engineer southern Electricity Supply Co. of Orissa Vs. Sitaram Rice Mills (2012) 2 SCC 108 has not been taken note of, hence there is error apparent on the face of record which requires review and recall of the order.