CESC LIMITED Vs. SHIVA GLASS COMPANY LIMITED

JUDGEMENT

(1.) The present appeal is arising out of an order dated 4th November, 2008 passed by the learned Single Judge in a writ petition preferred by Shiva Glass Company Limited & Ors. (hereinafter referred to as the "said company") primarily for quashing of two bills raised against the said company for supply of electricity for the months of October and November 1998. The learned Single Judge has quashed the said two bills inter alia holding that the delayed payment surcharge as claimed in the notice of disconnection for the said two periods are clearly barred and further held that the respondent cannot resort to the mode of recovery by threatening disconnection in terms of provisions of section 56 of the Act for non-payment of delayed payment surcharge. However, the learned Single Judge records that the Court is not deciding the question as to whether the writ petitioners were at all required to pay the delayed payment surcharge or not as that would involve a further detailed enquiry on factual issues which would not be proper under section 226 of the Constitution of India. However, the dues on the ground of delayed payment surcharge as reflected in the bill in June, 2006 would not be recoverable on the pain of disconnection in terms of section 56 of the Act and the notice of disconnection dated 21st July, 2006 was quashed. The relative scope of section 56(2) of the Electricity Act, 2003 (hereinafter referred to as the 'said Act') and section 172 of the said Act, thus, have come up for consideration.

(2.) Interpretation of the said sections have arisen in view of a notice of disconnection issued by the licensee appellant in June 2006 in purported exercise of its power under section 56(1) of the said (Electricity) Act, 2003.

(3.) Cesc Limited being aggrieved by the said order preferred the instant appeal. The submissions on behalf of CESC are summarized below: