JAY PEE CEMENT CORPORATION LTD. (FORMERLY KNOWN AS vs. THE GULBARGA ELECTRICITY SUPPLY CO. LTD. ORS

IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

DATED THIS THE 27TH OF JANUARY, 2021

BEFORE

THE HON’BLE MR. JUSTICE E.S. INDIRESH

WRIT PETITION NO.201934 OF 2019 (KLR/RR-SUR) C/W WRIT PETITION NOs.84166 OF 2011 & 204484 OF 2015

Writ Petition No.201934 of 2019

Between:

JAYPEE Cement Corporation Limited a company incorporated under the Companies Act 1 of 1956 having its registered office at Sector 128, Noida - 201 304 and factory at Shahabad - 585 229 Kalaburagi District Represented by its authorized representative Shri Manjunath Prabhu N Krishnacharya ...Petitioner (by Shri G.V. Chandrashekar, Advocate for Shri Vishwakarmaraj Nayak, Advocate)

And: 1 The Deputy Commissioner Kalaburagi - 585 102.

2 Tahasildar Chittapur, Taluk: Chittapur District: Kalaburagi

3 Executive Engineer GESCOM Kalaburagi 585 102 …Respondents (by Shri. Shivakumar R Tengali, AGA for R1 & R2; Shri S.S.Naganand, Sr. Counsel for Shri Ravindra Reddy, Advocate for R-3)

This Writ Petition is filed under Articles 226 of the Constitution of India praying to issue a writ of mandamus to 2nd Respondent to mutate the name of petitioner in respect of Sy.No.175/2, 175/3, 192/2, 193/2, 196/2, 197/1, 204/3, 205/2, 208/9, 209/1, 232/2, 235/4, 236/1, 237, 238, 239, 240, 241, 242, 247, 248, 249, 251, 252, 257, 258, 259, 260, 260/1, 260/2, 262/3, 265/1, 265/2, 265/3, 266, 268/1, 271/2, 271/3, 272/2 and 298/2 pursuant to the sale certificate issued by the D.R.T. Kolkata which is subject matter of application dated 08.12.2012 Vide Annexure-D1 and any other appropriate writ, order or direction and allow this writ petition with costs and grant such other reliefs as this Hon’ble Court may deem fit to grant the circumstances of this case.

Writ Petition No.84166 of 2011

Between

Jay Pee Cement Corporation Ltd. (formerly known as Zawar Cements Private Limited) A company incorporated in India, under the provisions of Companies Act, 1956 having its Regd. Office at No. B-105, Kalpataru Plaza 224, Bhavani Peth, Pune, Maharashtra and Unit at Shahabad District: Gulbarga-585 229 Karnataka State

3 By its Joint Presideint Mr. G. Muraleedharan Nair ...Petitioner (by Shri G.V. Chandrashekar, Advocate for Shri Vishwakarmaraj Nayak, Advocate)

And 1. The Gulbarga Electricity Supply Company Limited. Corporate Office Station Road Gulbarga-585101 by its Managing Director

(impleaded as per order dated 16.12.2011) …Respondents

4 (by Shri S.S.Naganand, Sr. Counsel for Shri Ravindra Reddy, Advocate for R-1 to R-4; Shri Ameet Kumar Deshpande, Advocate for R-5)

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the records pertaining to the order/demand bearing No.AEE/SBD/T/2011-12/54/59 dated 30.09.2011 (Annexure-A) passed by the 4th Respondent herein; and etc.

Writ Petition No.204484 of 2015

Between

JAYPEE Cement Corporation Limited A company incorporated under the Companies Act 1 of 1956 having its registered office at Sector 128, Noida 201 304 and factory at Shahabad 585 229, Kalaburagi District represented by its authorized representative Shri Sushil Kumar Singh ...Petitioner (by Shri G V Chandrashekar, Advocate for Shri Vishwakarmaraj Nayak, Advocate)

And

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to issue of Writ of Certiorari or other appropriate writ or order quash demand dated 26.05.2015 and 09.06.2015 Annexure-F and H by Respondent No.4, bearing No. SHAHABAD/AEE/AE-T/2015-16/233 and SHAHABAD/AEE/AE- T/2015-16/288-90; and etc.

In these writ petitions arguments being heard, judgment reserved, coming on for “Pronouncement of Orders”, this day, the Court made the following:

O R D E R

These Writ petitions are arising out of the common question of law and facts, pursuant to the issuance of order/demand notice bearing No.AEE/SBT/T/2011-12/5459 dated 30th September, 2011, which is impugned in Writ Petition No.84166 of 2011. Since the order impugned in Writ Petition No.204484 of 2015 is consequential order of order dated 30th

6 September, 2011 and the relief sought for in Writ Petition No.201934 of 2019 is bearing on the result of Writ Petition No.84166 of 2011, the question raised in Writ Petition No.84166 of 2011 is taken up for adjudication in these writ petitions. 2. Prayer of the petitioner in Writ Petition No.84166 of 2011 is as follows: a. Call for the records pertaining to the Order/demand bearing No.AEE/SBD/T/2011/12/ 5459 dated 30.09.2011 (Annexure-A) passed by the 4th respondent herein; b. Issue a writ order or direction more in the nature of a writ of certiorari and quash the order/demand bearing No.AEE/SBD/T/2011- 12/5459 dated 30.09.2011 (Annexure-A); c. Declare that the demand of the respondent GESCOM contained in the order/demand bearing No.AEE/SBD/T/2011-12/5459 dated 30.09.2011 (Annexure-A) for a sum of Rs.33,72,09,000/- (Rupees thirty three crore seventy two lakh nine thousand only) as on September 2011, is wholly illegal, arbitrary, unsustainable and violative of Articles 14, 19(1)(g) and 265 of the Constitution

7 of India and unenforceable against the petitioner; d. Declare that the petitioner is not liable to pay the arrears of HMP Cements Limited and the sum of Rs.33,72,09,000/- (Rupees thirty three crore seventy two lakh nine thousand only) as on September 2011 as claimed by the 4th respondent herein vide order/demand notice bearing No.AEE/SBD/T/2011-12/5459 dated 30.09.2011 (Annexure-A) is unenforceable against the petitioner and; e. Declare that clause (iv) of Condition 4.09 of the Conditions of Supply of Electricity of Distribution Licencess in the State of Karnataka as ultra vires to the Electricity Act, 2003 an strike down the same as being unconstitutional; f. Issue writ of mandamus directing the respondent No.4 to supply power to the petitioner without insisting upon payment of alleged arrears of HMP Cements Limited as contained in the demand notice bearing No.AEE/ SBD/T/2011-12/5459 dated 30.9.2911 (Annexure-A).

8 3. Prayer of the petitioner in Writ Petition No.204484 of 2015 is as follows: a. Issue a writ or certiorari or other appropriate order quashing demand notice dated 26.05.2015 and 09.06.2015 Annexure-F and H by respondent NO.4 bearing No.Shahabad/AEE/AE/T-2015-17- 233 and Shahabad/AEE/AE-T/2015-16 288-90; b. Issue writ of mandamus or other appropriate writ or order directing the respondents to reconnect electrical energy to the petitioner installation;

9 CASE OF THE WRIT PETITIONERS

10 same with effect from 07th December, 1997. It is further averred in the writ petition that, HMP Cements was provided with power supply by the then Karnataka Electricity Board presently, Gulbarga Electricity Supply Company (for brevity hereinafter is referred to as ‘GESCOM’), for carrying on with its manufacturing and allied activities and also for lighting of the Unit. The said HMP Cements had also constructed a housing colony for its labourers and officers and the same was supplied with electricity power by GESCOM. Total contract demand of power of the said HMP Cements was 10,600 KVA. In furtherance of the contract, HMP Cements has deposited Rs.207.00 lakh as statutory deposit for availing power supply and on account of accumulated loss caused to HMP Cements, the said unit closed all its activities on 07th December, 1997. It is further stated that while closing operation at the said Unit, HMP Cements had surrendered power connection to GESCOM, by its letter dated 14th December, 1997 as per Annexure-B. It is the case of the petitioner-Company that, Indian Bank instituted proceedings before the Debts Recovery Tribunal at

11 Kolkata (for short 'DRT'), against HMP Cements for recovery of its dues, by filing Application in TA/9/1004. The said proceedings came to be closed by order dated 09th September, 2004, allowing the Application made by the Applicant-Indian Bank and thereby, the DRT ordered issuance of Order/Notification of Attachment and Sale Proclamation of the Unit by the Recovery Officer. In pursuance of the said Notification issued by the Recovery Officer, various persons participated in the auction by filing their offer to purchase the Unit. The Recovery Officer finalised the sale certificate in favour of two Firms, viz. M/s. Jain Udyog and M/s. Bahubali Steel Enterprises. It is pertinent to mention here that since the HMP Cements had not paid wages, the workmen, through the Union of the Workmen of HMP Cements Limited (totaling to 850), have preferred appeal challenging the action of Recovery Officer in Appeal No.1 of 2005 and the Debts Recovery Tribunal, after hearing the parties, set aside the sale dated 28th November, 2006 and observed that the Company that purchases the assets of HMP Cements should re-employ those able-bodied workmen who were employed with HMP Cements, and the

12 intended/prospective purchaser must revive and resume manufacturing activities of the Unit. In the meantime, the Board of Industrial and Financial Reconstruction (for short hereinafter referred to as “BIFR”) declared HMP Cements as a sick Unit and reference under Section 22 the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 was filed before the Board of Rehabilitation. When things stood thus, one M/s. Zawar Cement Private Limited, expressed its interest to purchase the Unit of HMP Cements as per letter dated 27th September, 2006 (Annexure-C) and the said proposal made by M/s. Zawar Cement Private Limited was accepted on the condition that the said Zawar Cement Private Limited shall settle the dues of nine creditors including the dues to State of Karnataka and GESCOM as per Order dated 28th November, 2006 passed by DRT vide Annexure-D. In pursuance of the same, DRT accepted terms and conditions made by M/s. Zawar Cement Private Limited and confirmed the sale by issuing Sale Certificate by its order dated 12th October, 2007 as per Annexure-E and F respectively. It is further stated in the Writ Petition that, as the operations were closed by HMP Cements,

13 the GESCOM disconnected power supply to the Unit as well as the Housing Colony. Being aggrieved by the disconnection of power supply to their houses in the colony, the workmen of the unit of HMP Cements have filed Writ Petition No.6774 of 1998 before this Court seeking re-connection of power supply to the housing colony, and this Court, by order dated 09th September, 1999 (Annexure-G) directed the GESCOM to provide power supply to the Housing Colony and observed that the consumption charges shall be borne by the respective occupants of the quarters. This Court has also observed that the cost of electricity supply made by GESCOM and the consumption charges till providing of individual meters to the occupants, shall be debited to the account of HMP Cements by the GESCOM and further ordered that, the charge created on the properties of the HMP Cements by virtue of the interim order shall continue until the dues of GESCOM and workmen are paid. Being aggrieved by the said order dated 09th September, 1999 (Annexure-G), KEB has preferred Writ Appeal No.7658 of 1999 and the said Appeal came to be disposed of by the Division Bench of this Court by its judgment dated 21st August, 2001.

14 6. It is further averred in the writ petition that the petitioner, before issuance of sale certificate by the DRT in its favour, had addressed a letter dated 11th October, 2006, to the first respondent-GESCOM stating that the petitioner-Company had decided to purchase the Unit and to revive the Unit with re- employment of 850 workmen, inter alia, sought for certain benefits from the State Government as per its Industrial Policy, which is produced at Annexure-H to the writ petition. In this regard, there were certain exchange of letters between the petitioner-Company and first respondent-GESCOM based on the orders of this Court passed in Writ Petition No.6774 of 1998. It is the case of the petitioner-Company that, as on the date of the closure of its Unit by HMP Cements, the arrears of dues payable to the first respondent-GESCOM was only Rs.237.00 lakh and nothing more, and therefore, the petitioner addressed a letter dated 09th February, 2007, requesting the first respondent- GESCOM to adjust the statutory deposit of Rs.207.00 lakh made by HMP Cements with KEB (GESCOM) as per Annexure-L and the said letter dated 09th February, 2007 was taken on record by the DRT in its proceedings dated 13th February, 2007 and pursuant

15 to same, the petitioner herein was directed to pay 10% of Rs.237.00 lakh by way of Demand Draft to the first respondent- GESCOM to restore power supply to the Unit purchased by the petitioner-Company from erstwhile HMP Cements as per order of DRT produced at Annexure-M. Pursuant to said order, the petitioner-Company has deposited Rs.23.70 lakh being 10% of Rs.237.00 lakh which amount was due to the GESCOM by letter dated 17th February, 2007 produced at Annexure-N. In response to letter dated 17th February, 2007 (Annexure-N), the first respondent-GESCOM, as per letter dated 27th February, 2007 produced at Annexure-O, issued reply agreeing to restore power supply with a condition that the petitioner-Company shall pay another sum of Rs.30 lakh and accordingly, the petitioner- Company has remitted a sum of Rs.30 lakh to the first respondent-GESCOM. It is further averred in the writ petition that, the petitioner-Company, as per the undertaking given to DRT, resumed activities by re-appointing all the 850 workmen by settling their dues as per the orders of the DRT and thereby, commenced its manufacturing activity by investing huge amount for revival of the Unit. The petitioner-Company was paying

16 periodical bills raised by the first respondent-GESCOM towards electricity consumption charges, without committing any default whatsoever. It is the categorical averment made in the writ petition that the erstwhile HMP Cements had surrendered power connection by its letter dated 14th December, 1997 (Annexure- B), which was never revoked/withdrawn or rescinded by HMP Cements or by GESCOM or by its predecessors in any manner, and therefore, the say of the petitioner-Company was that, the same has become final. It is further averred in the Writ Petition that when the things stood thus, the petitioner-Company has received a legal notice dated 02nd July, 2009 (Annexure-Q) from the first respondent-GESCOM, calling upon the petitioner to pay a sum of Rs.18.55 crore, as arrears by erstwhile HMP Cements. In furtherance of the same, the petitioner-company made reply by letter dated 18th July, 2009 (Annexure-R) stating that the said claim is arbitrary inter alia violation of the order of DRT and the claim made by first respondent-GESCOM against the erstwhile HMP Cements was closed as per letter dated 07th December, 1997 and therefore, contention of the petitioner- Company was that the demand notice produced at Annexure-Q

17 requires to be withdrawn. However, without considering the said reply produced at Annexure-R made by the petitioner, the first respondent-GESCOM has issued letter dated 09th September, 2009, demanding the arrears of dues as Rs.14,72,45,561/- in respect of RR No.SBDHT-2 as per Annexure-S. In furtherance of Annexure-S, petitioner, by letter dated 13th September, 2009 (Annexure-T), replied by reiterating the stand taken by the respondent-GESCOM as contrary to the order of DRT and there is no arrears as such on the side of the petitioner-Company. In the meanwhile, the petitioner-Company had received e-mail dated 01st October, 2009 as per Annexure-U from the third respondent, calling for certain clarification and in pursuance of the same, the petitioner-Company had addressed letter dated 10th October, 2009 produced at Annexure-V. When things stood thus, the petitioner received reminder dated 24th December, 2009 (Annexure-W) from the third respondent, demanding a sum of Rs.14,72,45,561/- and in response to the same, the petitioner-Company, vide letter dated 30th December, 2009 (Annexure-X), reiterated the stand taken in its earlier letters. Immediately thereafter, the petitioner-Company received letter

18 as per Annexure-Y dated 02nd January, 2010 to attend Meeting on 06th January, 2010 at 11.00 a.m. In furtherance of the same, the Joint Vice-President of the Petitioner-Company attended the meeting on 06th January, 2010 reiterating its stand with regard to arrears of claim made by the first respondent-GESCOM). Despite the same, petitioner has received letter dated 04th May, 2010 vide Annexure-Z by the first respondent-GESCOM to clear the outstanding arrears to avoid disconnection of power supply. Consequently, the petitioner replied by its letter 04th May, 2010 as per Annexure-AA. It is also relevant to state at this stage that apprehending disconnection of power supply by the GESCOM, the petitioner filed WP No.15983 of 2010 before this Court and this Court, by interim order dated 18th May, 2010 produced at Annexure-BB, directed the respondent-GESCOM to restore power supply, subject to condition that the petitioner- Company deposits a sum of Rs.1.50 crore before the first respondent herein. In pursuance of the same, the petitioner deposited Rs.1.50 crore with respondent-GESCOM. In the said writ petition, the respondent-GESCOM provided the calculation sheet as per Annexure-CC containing the arrears of due and the

19 same was disputed by the petitioner herein. However, the respondent-GESCOM filed Application for modification of interim order dated 18th May, 2010, seeking direction against the petitioner to deposit the due amount of Rs.32.00 crore and the said Application was resisted by the petitioner herein. However, this Court, by order dated 22nd August, 2011, disposed of the Writ Petition with a direction to the petitioner-Company to file its reply to the impugned demand notice dated 04th May, 2010 as per Annexure-EE and accordingly, the petitioner-Company submitted representation dated 03rd September, 2011 as per Annexure-FF to the respondent-GESCOM and on receipt of the said representation, the first respondent-GESCOM passed the order dated 30th September, 2011 produced at Annexure-A. The petitioner herein has challenged the order Annexure-A dated 30th September, 2011 in Writ Petition No.84166 of 2011.

20 Writ Petition No.83874 of 2011 before this Court and the petitioner had challenged the order dated 08th July, 2013 issued by the respondent-GESCOM refusing to issue 'No objection certificate' to the petitioner for construction of five kilometer 110 KV DC line from its captive power plant, in Writ Petition No.103783 of 2013. During the pendency of the aforesaid two writ petitions, the respondent-Karnataka Power Transmission Company Limited (for short 'KPTCL') issued the demand notice dated 26th May, 2015, directing the petitioner to pay sum of Rs.5,66,98,746/- as fixed charges on behalf of HMP Cements from July 2011 to April, 2015 and letter dated 09th June, 2015 issued by the GESCOM, claiming Rs.5,54,13,546/- from the petitioner-Company, was challenged in Writ Petition No.204484 of 2015. It is further averred that the Writ Petition No.103783 of 2013 and Writ Petition No.84166 of 2011 were withdrawn by the petitioner-Company, pursuant to the agreement entered into between the parties on 07th August, 2014 (as per Annexure-C in Writ Petition No.204484 of 2015) and thereby, the petitioner has assailed the withdrawal of reduction of power in Writ Petition No.204484 of 2015.

22 per Annexure-G directed Tahsildar, Chittapur to issue mutation in favour of the petitioner-Company, in accordance with law. Despite the same, transfer of mutation record has not been registered in the name of the petitioner-Company.

23 order dated 09th March, 2007 permitted the respondent-GESCOM to recover the arrears of electricity charges in the manner provided under law and in that view of the matter, the liability to pay the dues as well as disconnection of installation No.SHBDHT- 2, cannot be again questioned or challenged by way of fresh writ petition. It is further averred in the Writ Petition that this Court had imposed cost of Rs.50,000/- on the writ petitioner for misusing the process of Court and same has reached finality in Writ Petition No.1846 of 2001 disposed of on 09th March, 2007 (Annexure-R1) and as the writ petitioner has not challenged the order passed by this Court in the aforesaid writ petition by way of filing appeal and therefore, writ petition is not maintainable. It is further stated that, the DRT, by its Order dated 10th March, 2008 in Review Petition No.12 of 2004, at paragraphs 54 and 55, held that the DRT cannot adjudicate the claims of the secured creditors of the erstwhile M/s. Global Cements Limited (HMP Cements Limited), which include the claim of State and Central Government Departments/Statutory Bodies and they are at liberty to initiate the proceedings for recovery of their dues in accordance with law. The respondent-GESCOM further states

24 that, as observed by DRT, applications filed by the Karnataka State Industrial Investment Development Corporation and the claim lodged by other secured creditors, i.e. various Government Department/Statutory Bodies stand disposed of with above observation and in view of the final order dated 10th March, 2008 passed by DRT reserving liberty to the Statutory Bodies to recover the dues in accordance with law and so also, DRT has clearly stated that it has no jurisdiction to look into or decide with regard to electricity dues and in that view of the matter, the impugned order Annexure-A dated 30th September, 2011 passed by the respondent-GESCOM is just and proper. It is further stated in the statement of objections that restoration of power supply by GESCOM in the year 2007 was as per the interim order passed by the DRT and on payment of Rs.23.70 lakh, i.e. 10% of Rs.237.00 lakh by M/s. Zawar Cements Private Limited and the DRT, in its final pronouncement also observed that it has no jurisdiction to decide the electricity dues and thereby, the respondent-GESCOM has jurisdiction to determine/quantify the arrears of due. It is further stated that the petitioner-Company was well aware about the claims that the cement factory was

25 purchased as a “going concern” and the petitioner-company had undertaken to clear liabilities of all secured creditors and the respondent-GESCOM reiterates that, the petitioner had purchased HMP Cements as an “ongoing concern” and so also, as per paragraph 31 of the DRT Order dated 10th March, 2008, and accordingly, the respondent-GESCOM submitted that the averments made by the petitioner, denying payment of arrears of electricity is without authority under law. It is further stated that pursuant to interim order dated 06th March, 1998 passed by this Court in Writ Petition No.6774 of 1998, reconnection of electricity was made to SHBDHT-2 of the Petitioner-Company and after restoration of power, though bills were raised, but the consumer-Petitioner Company remained defaulter with regard to payment of bills and in this regard, the respondent-GESCOM stated that the petitioner-Company never applied for a new connection of electricity, but, in fact, sought and got reconnection of the existing electricity supply (standing in the name of HMP Cements) and therefore, the contentions raised by the petitioner was denied. It is further averred in the statement of objections that the claim of GESCOM was based on facts and

26 calculations of electricity dues and same was made available to the petitioner-Company in a sum Rs.18.55 crore, by Tahsildar, Chittapur for payment of arrears as land revenue and therefore, the averment made by the petitioner in the Writ Petition with regard to electricity dues is only in a sum of Rs.2.37 crore, is miscalculation of dues and contrary to actual calculations and bonafide claim made by the respondent-GESCOM. 11. The respondent-Corporation raised question of maintainability of Writ Petition on the ground that “Karnataka Electricity Regulatory Commission” (for short hereinafter referred to as ‘KERC’) is a body created under Section 82 of Electricity Act, 2003, which regulates generation, transmission, distribution (including sales and conditions of sale), etc. Section 50 of the Electricity Act, 2003 provides for “The Electricity Supply Code” for Karnataka. The liability of the petitioner-Company to pay the arrears is clearly provided in the said conditions of supply, as per “Conditions of Supply of Electricity of Distribution of Licencees in the State of Karnataka” (Notification dated 17th June, 2006 by KERC) Clause 7.1(h) of Annexure-4 of the said conditions

27 stipulates about the liabilities, and therefore, the respondent- GESCOM vehemently contended that the averments made by the petitioner-Company with regard to calculation or quantification of due cannot be accepted and the remedy available to the petitioner is to approach the KERC for adjudication of dispute and not by way of filing Writ Petition under Article 226 of the Constitution of India. It is the contention of the respondent- GESCOM with regard to question of surrender of power by erstwhile HMP Cements that, as the re-connection and restoration of electricity was made in terms of interim order dated 06th March, 1998 in Writ Petition No.6774 of 1998, which came to be confirmed by final order as per Annexure-J and therefore, the averment made in the Writ Petition, questioning the surrender of electricity as well as reconnection and restoration should be accounted for RR No.SHBDHT-2 and therefore, in view of condition No.4.09 of KERC Notification dated 07th June, 2006, which stipulates that any person occupying the premises for which there are outstanding arrears has to pay the said arrears in respect of such premises if fresh connection is sought and therefore, the averment made by the

28 petitioner with regard to denying payment of electricity dues was countered by the respondent-Corporation as false and baseless and accordingly, sought for dismissal of Writ Petition No.84166 of 2011 and submitted that the impugned order dated 30th September, 2011 is legal and sustainable under law. 12. The respondent-GESCOM also filed detailed statement of objections in Writ Petition No.204484 of 2015, reiterating the objections filed in Writ Petition No.84166 of 2011 and further contended that in view of reduction of load as per Regulation 34.02 of the Conditions of Supply of Electricity of Distribution Licencees in the State of Karnataka, petitioner is not entitled for any relief. It is further, stated that in writ petition No.81630 of 2010 filed by the petitioner for reduction of contract power demand from 10,600 KVA to 1,500 KVA and 2000 KVA in respect of request dated 26th June, 2010 for reduction of the contract power demand was for temporary period and in view of the order dated 22nd August, 2011 passed in the aforesaid writ petition as the Writ Petition having become infructuous, and in that view of the matter, the respondent-GESCOM cancelled the

29 reduction of load as per Order dated 22nd September, 2011 (produced as Annexure-R4 in Writ Petition No.204484 of 2015) and therefore, the respondent-GESCOM sought for dismissal of writ petitions. 13. The respondent-GESCOM filed separate statement of objection in Writ Petition No.201934 of 2019, reiterating its stand taken in Writ Petition No.84166 of 2011 and further stated that the petitioner is not entitled for any relief in the writ petition, as the order of the Deputy Commissioner dated 10th April, 2006 (produced as Anneure-R1 in Writ Petition No.201934 of 2019) had attained finality, as same has not been questioned by the writ petitioners and therefore, when charge has been created over the property in terms of the said order towards recovery of arrears treating the same as land revenue arrears under the provisions of Karnataka Land Revenue Act, and accordingly, the respondent-GESCOM averred that, the petitioner cannot insist for change of entries in the Revenue Records until the controversy in Writ Petition No.84166 of 2011

30 is decided by this Court and as such, sought for dismissal of the writ petition. 14. Heard Shri G.V. Chandrashekar, learned counsel appearing on behalf of Shri V.K. Nayak, learned counsel for the petitioner-Company and Shri S.S. Naganad, learned Senior Counsel on behalf of Shri Ravindra Reddy for the respondent- GESCOM at length, on all the writ petitions. In the initial stage of the arguments, Shri Chandrashekar learned counsel for the petitioner-Company fairly submitted that, the petitioner- Company has given up its contention with regard to constitutional validity of clause (iv) of condition 4.09 of the Conditions of Supply of Electricity and Distribution Licences in the State of Karnataka and therefore, validity of clause (iv) of condition 4.09 of the Licence Rule as prayed in prayer (e) in Writ Petition No.84166 of 2011 has not been considered for adjudication in these Writ Petitions. CONTENTIONS OF THE PETITIONER-COMPANY

31 September, 2011 passed by the GESCOM is functus officio to raise demand against the petitioner-Company.

Elaborating his submissions with respect to aforementioned issues, Shri Chandrashekar submitted that, after disconnection of the electricity by the respondent-Corporation on 09th December, 1997, HMP Cements, the erstwhile owner, had surrendered the electricity connection and requested the respondent-Corporation to adjust the security deposit of Rs.1,76,89,000/- towards dues as per letter dated 14th December, 1997 for surrender of power and same was accepted by the Assistant Executive Engineer of respondent-GESCOM, and therefore, raising additional due based on the aforementioned bill, amounts to illegal act on the part of the respondent- GESCOM. On these lines, he further submitted that subsequent

32 to surrender, since electricity supply had been disconnected for both plant and township where there were about 850 quarters, the Respondent-GESCOM, though, had restored electricity supply for the purpose of lighting and water to the township on 19th December, 1997, however, restoration of power supply was not effected to the plant and therefore, the employees of the petitioner-company had filed Writ petition No.6774 of 1998 and this Court, by interim order, directed the respondent-company to supply electricity to the Colony and directed the electricity so supplied to the colony should be metered to individual occupant properly and therefore, he contended that surrender of power having become final, the agreement in relation to the contract demand of 10,600 KVA stood terminated insofar as HMP Cements is concerned and therefore, the finding recorded by the respondent-Corporation in the impugned order dated 30th September, 2011 (Annexure-A) is illegal and is liable to the quashed. He further contended that the petitioner-Company is not shirking its obligation or not going back on the payment of electricity charges supplied to the colony, in which the respondents themselves had quantified at Rs.45.50 lakh plus

33 interest at Rs.19.98 lakh, totaling to Rs.69.48 lakh, however claiming Rs.32.72 crore as against Rs.69.48 lakh is without any basis and therefore the impugned order produced at Annexure-A is liable to be quashed.

34 having been fulfilled and contends that respondent-GESCOM directing HMP Cements to pay electricity charges in a sum of Rs.14.59 crore with interest at the rate of 24% per annum till October, 2000 is contrary to records. Emphasising on these aspects, Shri Chandrashekar argued that acceptance of Rs.30.00 lakh for 3MMD deposit charges afresh in the year 2001 establish that the old contract demand stood terminated by virtue of the surrender made on 14th December, 1997 and therefore, December 1997 onwards, the respondent-GESCOM, illegally raised bill/claim on 10600 KVA which is not correct. Nextly, he submitted that respondent-GESCOM suppressed the factum of their quantifying the arrears at Rs.18.55 crore and had made over the arrears to the Deputy Commissioner, Gulbarga, adjudicating it to be arrears of land revenue as contemplated under Regulation 33.07 and 33.08 of Karnataka Electricity Supply Regulations, 1988 and the said action on the part of the respondent-GESCOM is illegal. 19. Shri Chandrashekar, learned counsel for the petitioner further contended that, before DRT, the respondent had not

35 made any claim beyond Rs.2.37 crore. However, illegally quantifying the dues at Rs.18.55 crore and making it over to the Deputy Commissioner is illegal and amounts to suppression of true facts and therefore, the respondent-GESCOM being a ‘State’ under Article 12 of the Constitution of India, ought to have passed the test of fairness and reasonableness, and therefore, making unreasonable and false claim against the petitioner- Company amounts to violation of Constitutional parameters and therefore, the impugned order is liable to be quashed. In this regard, learned counsel for the petitioner places reliance on the judgment of the Hon'ble Supreme Court in the case of ISHA MARBLES v. BIHAR STATE ELECRICITY BOARD AND ANOTHER reported in (1995)2 SCC 648. 20. Shri Chandrashekar argued that, since there was an error in the impugned order, the authority can always correct the error and perusal of the impugned order passed by the Assistant Executive Engineer, does not say that there was an error in calculation of outstanding dues and therefore, the authority making the order is functus officio. Emphasising on

36 these aspects, he submitted that though alleged arrears of M/s. HMP Cements Limited having been made over to the Deputy Commissioner, however, the said revenue authority had not taken any action for the last fifteen years, expressly/impliedly abandoned the claim and therefore, making claim under the impugned order attracts delay and laches and therefore, barred by limitation. In this regard he placed reliance on the judgment of Hon'ble Supreme Court in the case of GOVERNMENT OF UTTAR PRADESH v. RAJA MOHAMMED AMIR AHMED KHAN reported in AIR 1961 SC 787. 21. It is the contention of Shri Chandrashekar with regard to dismissal of Writ Petitions No.1846-47 of 2001 that, the said order dated 09th March, 2007 by the learned Single Judge is not binding on the petitioner-Company, as none appeared for the petitioner-Company and it is nothing but an ex-parte order passed by this Court and by the time the order came to be passed by this Court on 09th March, 2007, HMP Cements was brought to sale and the petitioner-Company (JAYPEE Cements Corporation Limited) had purchased the said Unit and certificate

37 of sale was issued on 28th November, 2006 and therefore, the order dated 09th March, 2007 passed in Writ Petition No.1846-47 of 2001 is non-est and not applicable to the petitioner-Company. Proceeding further, Shri Chandrashekar submitted that the learned counsel appearing for the respondent-GESCOM in the above writ petition i.e. Writ Petitions No.1846-47 of 2001 had suppressed the factum of pendency of the case before the DRT and therefore, the order dated 09th March, 2007 is nothing but an order of dismissal for non-prosecution and not binding on the petitioner. In this regard, Shri Chandrashekar places reliance on the judgment of the Hon'ble Supreme Court in the case of SHEODAN SHINGH v. DHARYAO KUNWAR reported in AIR 1966 SC 1332. 22. Nextly, Shri Chandrashekar contended that, the calculation made by the respondent authorities in the impugned order is without any basis and the factum of surrender of electricity connection made by HMP Cements Limited was not taken into consideration by the respondent-authorities while issuing the impugned order. Shri Chandrashekar, contended

38 that the petitioner has challenged the legality of the impugned order passed by the Assistant Executive Engineer including its jurisdiction to pass an order, admittedly, under the Regulation and thereby, the contract demand gets terminated and when once the Assistant Executive Engineer makes over the alleged determination, to the Deputy Commissioner, by issuing Form-C as per Regulation 33.08, the Assistant Executive Engineer loses jurisdiction to modify the said order. Elaborating his submission on these aspects, he submitted that the petitioner and respondents have deliberated on the lis with regard to payment of dues and mutual negotiations had been made before the Government of Karnataka represented by its Chief Secretary and therefore, relegating the parties to approach KERC at this stage is not correct as the Regulation is framed under the Karnataka Electricity Act, 2003 and the lis between HMP Cements and the respondent-GESCOM is of the year 2001, and therefore, Karnataka Electricity Act, 2003 is not applicable to the facts on hand and as such, the Regulation itself is not applicable to the Petitioner-Company.

39 23. Nextly, learned counsel for the petitioner contended that the petitioner has deposited Rs.1932.33 lakh with the respondent-Corporation as against the due of Rs.2.37 crore and therefore, the respondents have no legal authority to retain the money in excess and accordingly, he contends that claim made under the impugned order produced at Annexure-A is contrary to the facts. Adverting to the entertaining of the writ petition with disputed facts as urged by the respondent-GESCOM, learned counsel for the petitioner submitted that, this Court, while exercising discretionary power under Article 226 of the Constitution of India can dwell upon the disputed question of fact against the claim of the statutory bodies, which are well within the purview of Article 12 and 226 of the Constitution of India. 24. Making submission on Writ Petition No.204484 of 2015, Shri Chandrashekar, learned counsel appearing for the petitioner submitted that, during the pendency of Writ Petition No.84166 of 2011, the respondent raised bill in the year 2015 claiming/raising demand from 2011 to 2015 for 10600 KVA, which had been surrendered as far back as in the year 2007 and

40 therefore, claiming Rs.5.54 crore by the respondent-Board resulting in filing of Writ Petition No.2084 of 2015 and therefore, he contends that the respondent-Corporation has failed to consider the contract demand entered into for 1000 KVA and subsequently 5000 KVA and therefore, question of existence of contract demand of 10500 KVA does not arise and therefore, he contends that the demand made by the respondent-GESCOM is devoid of merit. 25. Making his submission on Writ Petition No.201934 of 2019, Shri Chandrashekar submitted that there is no impediment for this Court to issue writ of mandamus directing the Tahsildar to mutate the name of the petitioner in the revenue records of the lands where the plant is situated, based on the sale certificate issued by the DRT, Kolkota and therefore, the abandoned plant (HMP Cements) which was taken over by M/s. Zawar Cements Pvt. Ltd. (now M/s. JAYPEE Cements Private Limited), shall take necessary steps for expanding and development of the Plant and accordingly, Shri Chandrashekar, learned counsel appearing for the petitioner contended that the

41 impugned order passed by the respondent-Corporation dated 30th September, 2011 is liable to be set aside and consequently, grant relief as sought for in these writ petitions. CONTENTIONS OF THE RESPONDENT - GESCOM

42 are empowered to examine facts and determine whether the demand made by the respondent-GESCOM is correct or not and both the authorities are empowered to order for reduction, if the demand is found to be excessive and further this would involve verification of accounts which are not produced by the petitioner as part of the writ petition and therefore, learned Senior Counsel contended that these disputed question of facts have to be adjudicated by way of examination of the records, which require oral evidence by the parties and therefore, these aspects cannot be gone into under the provisions of Article 226 of the Constitution and thereby, it is his principal submission that, it is incumbent upon this Court to relegate the petitioner-Company to approach the aforementioned authorities, to resolve their dispute. 27. Sri S. S. Naganand, learned Senior counsel further submitted on the ground urged by the petitioner challenging the impugned order on the ground of non-application of mind and non-consideration of facts and records that, the respondent- GESCOM pursuant to the order passed by the Court in several

43 petitions with regard to claim or arrears of electricity due, has considered the case on merits supported by the documentary evidence regarding transmission, consumption or utilization of electricity, and the same cannot be faulted without proving the disputed facts. Arguing on these aspects, he pointed out that the said contention urged by the petitioner is without merit, as the impugned order is a sequel to the notice dated 04th May, 2010 produced at Annexure-Z whereunder the respondent- GESCOM, pursuant to the letter dated 24th December, 2009 addressed by the respondent-GESCOM to M/s. Zawar Cement Company Limited with regard to payment of outstanding arrears in respect of HMP Cements, now taken over by petitioner- Company. He, further, invited the attention of the Court to condition No.4.09 of the KERC Notification dated 07th June, 2006, whereunder clause (iv) declares that any person occupying the premises for which there is outstanding arrears, has to pay the said arrears in respect of such premises if the fresh connection is sought and therefore, the said Notice dated 04th May, 2010 produced at Annexure-Z was challenged before this Court in Writ Petition No.15983 of 2010 and this Court by

44 order dated 22nd August, 2011 disposed of the writ petition with a direction to the petitioner herein to file its reply to the impugned demand notice dated 04th May, 2010 treating it as a Show cause Notice and thereby directed the respondent corporation to pass appropriate orders in accordance with law, after affording reasonable opportunity of hearing to the petitioner company and in compliance of the said order, the Assistant Executive Engineer of Respondent-GESCOM has passed the impugned order dated 30th September, 2011, after affording opportunity of hearing to the petitioner and in that view of the matter, the contention raised by the petitioner-Company that the respondent-GESCOM has no jurisdiction to pass the impugned order or there is non-application of mind, cannot be accepted. Continuing his arguments on these aspects, Shri S.S. Naganad, learned Senior Counsel, further submitted that the Assistant Executive Engineer, heard the representatives of the Petitioner- Company, examined the facts with details filed by the respective parties and upheld the demand made therein as per statement of Bills appended to Annexure-A. He further submitted that as of July 2001, the total amount due was Rs.14,99,17,061/- and

45 same figure was taken as the opening balance and the principal amount with interest, were shown separately in the Statement of Bills appended to Annexure-A and every month interest was levied on the principal sum of Rs.1104.42 lakh. He further submitted that the total principal sum and accrued interest up to September, 2011 comes to Rs.3372.09 lakh and therefore, unless the petitioner-Company clear the aforementioned due, reconnection of power supply is not permissible as per Clause 4.09 of the supply regulations. In addition to this, learned Senior Counsel submitted that this Court in the case of KRISHNAPPA v. KARNATAKA ELECTRIITY BOARD reported in 2000(3) KCCR 2143 upheld the identical Clause 4.34 in the KEB Supply Regulation, 1988 and therefore, the relief sought for by the petitioner company as per prayer (g) to issue writ of mandamus directing the respondent No.4 to supply power to the petitioner without insisting upon payment of arrears of HMP Cements as contained in the demand notice dated 30th September, 2011 (Annexure-A) is liable to be rejected.

47 Senior Counsel submitted that the contention raised by the petitioner cannot be accepted as legal issue involve in these writ petitions are settled on these aspects and in that view of the matter, he contends that the petitioner is liable to pay the arrears as reflected in the impugned order dated 30th September, 2011.

48 by the competent Court in appeal and thereby, the claim made by the respondent-GESCOM having been upheld by this Court in the aforementioned writ petition and thereby, the petitioner is estopped from making any arguments contrary to the same. 30. Inviting my attention to Section 56 and 24 of Electricity Act, 2003 and the Indian Electricity Act, 1910 respectively, learned Senior counsel submitted that, for re- connection to the same premises, arrears have to be paid as per the Regulation and since the petitioner has not paid the arrears, as mentioned in the impugned order and therefore, the petitioner is not entitled for restoration of power.

49 2006 by KERC and therefore, surrender of power can only be done only after payment of arrears by the Consumer and since the petitioner-Company, in this writ petition, has not fulfilled these conditions and therefore, the contentions raised by the learned counsel for the petitioner that the petitioner-company had surrendered power supply as per letter dated 14th December, 1997 cannot be accepted and therefore the writ petition is misconceived and is liable to be dismissed.

50 Continuing arguments on these aspects, learned Senior Counsel submitted that the petitioner-Company continued to enjoy power supply without payment of dues and thereby the respondent- GESCOM has raised demand of Rs.14.69 crore by letter dated 03rd October, 2000 (which was impugned in Writ Petition No.1846 of 2001) and ultimately, power supply was disconnected for non-payment of dues. The said writ petition came to be dismissed on 09th March, 2007. He further contended that a fresh demand was raised on 04th May, 2010, which was challenged in Writ Petition No.15983 of 2010, disposed of on 22nd August, 2011 resulting in passing of the impugned order dated 30th September, 2011. In that view of the matter, the contention raised by the learned counsel appearing for the petitioner that power was surrendered in December, 1997 cannot be accepted.

51 consumption of power from December, 1997 till September 2000. However, the respondent-Corporation has not raised bill for Nil consumption between October 2000 to February 2001. He further submitted that, March 2001 onwards consumption is again recorded and bills are raised as per Annexure-B4, B5 and B6 and the amount claimed in the aforementioned three bills are reflected in the statement Appended to Annexure-A at Sl.No.40, 41 and 42 which shows the number of units consumed and the maximum reading recorded and the contention raised by the learned counsel for the petitioner that demands have been raised during the disconnection period is without any basis and contrary to records. Lastly, learned Senior counsel submitted that the contentions raised by the learned counsel appearing for the petitioner that the sums demanded by the respondent- Corporation are barred by limitation is untenable as the proceedings before this Court arises in connection with restoration of power supply and not by way of any suit before a Civil Court filed by the respondent-GESCOM to recover money due to it. In this connection, learned Senior Counsel places reliance on the law declared by the Hon'ble Supreme Court in

52 the case of SWASTIK INDUSTRIES v. M.S.E.B. reported in 1997(9) SCC 465 and Regular Second Appeal 593 of 1999 disposed of on 31st January, 2012 by High Court of Judicature at Madras.

53 as per the claim raised in the impugned order Annexure-A dated 30th September, 2011? 2. Whether the writ petitions filed by the petitioner- Company is maintainable under Article 226 of the Constitution of India with regard to challenging of quantification of arrears of due by the respondent-GESCOM?

54 of M/s. Global Cement Limited to M/s. Zawar Cement Private Limited. In the aforesaid proceedings dated 10th November, 2008, paragraphs 25, 26, 47 and 54 of the order, reads as under: “25. It is true that the director of M/s. ZCPL had agreed to purchase Shahabad Cement Unit “as a going concern” along with the liabilities payable to various Government departments/statutory bodies including the Indian Bank. It has also undertaken to settle the workmen’s dues and to take care of all workmen. There is no doubt that it had undertaken to settle and pay the dues outstanding as on the date of closure of the Shahabad Unit. As per such undertaking, it has to pay the Government Departments/Statutory Bodies, viz.- 1. The Department of Mines and Geology,

Bangalore; 2. KSIIDC, Bangalore; 3. Karnataka Electricity Board (KPTCL); 4. Central Excise, Gulbarga; 5. Central Railways, Government of India; 6. Employees’ Provident Fund Organisation,

Gulbarga, ESI Corporation, Bangalore; 7. Commercial Tax Department, Gulbarga; 8. Profession Tax. (emphasis supplied)

55 26. As per the settlement, the purchaser (ZCPL) had to pay a sum of Rs.8.8 crore to the Indian Bank and the same has paid. It appears that the unit has restarted and revived and importantly, a large number of workers were re-employed and a sum of Rs.3.50 crore was paid towards the dues of the workmen. It is also submitted that the payments have been made partly towards past dues to the Electricity, PF, Mining, ESI, Railways, Commercial Taxes and Excise and regularly paying the current dues. It is also stated that those Government Department/Authorities are co-operating for smooth running of the unit and workers were happy with the present management. 27 to 46. xxx xxx xxx

56 submitting that they intend to agitate before the appropriate court/forum. That clearly means, there are disputes with regard to the quantum of the liabilities payable to the secured creditors In such a situation it is not possible, rather it is not the function of this Tribunal to go into their disputes and adjudicate the claims of those secured creditors in the proceedings launched by the Bank under section 19 of the DRT Act. 48 to 53. xxx xxx xxx 54. In the light of what has been discussed and for all the reasons aforementioned, it is hereby held that this Tribunal cannot adjudicate the claims of the above referred other secured creditors of the erstwhile M/s. Global Cements Ltd. which include the State and Central Government departments/ statutory bodies and they are at liberty to initiate the recovery proceedings for recovery of their dues in accordance with law.” (emphasis supplied)

57 that view of the matter, the bill/claim raised by the respondent- GESCOM is liable to be satisfied in accordance with law as the petitioner herein was well aware about the claims of the statutory bodies before the DRT itself and therefore, the petitioner company is liable to discharge its obligation to clear the outstanding dues of the respondent-GESCOM. In this regard, it is relevant to refer to observations made by the Hon'ble Supreme Court in the case of HYDERABAD VANASPATI LIMITED v. A.P. STATE ELECTRICITY BOARD AND OTHERS reported in (1998)4 SCC 470, wherein while dealing with Section 49 of the Electricity (Supply) Act, 1948, wherein, at paragraph 20 of the Judgment, the Hon'ble Supreme Court has observed thus:

“20. We have already seen that Section 49 of the Supply Act empowers the Board to prescribe such terms and conditions as it thinks fit for supplying electricity to any person other than a licensee. The section empowers the Board also to frame uniform tariffs for such supply. Under Section 79(j) the Board could have made regulation therefore but admittedly no regulation has so far been made by the Board. The Terms and Conditions of Supply were notified in H.P. Ms. No. 690 dated 17.9.1975

58 in exercise of the powers conferred by Section 49 of the Supply Act. They came into effect from 20.10.1975. They were made applicable to all consumers availing supply of Electricity from the Board. The section in the Act does not require the Board to enter into a contract with individual consumer. Even in the absence of an individual contract, the Terms and Conditions of Supply notified by the Board will be applicable to the consumer and he will be bound by them. Probably in order to avoid any possible plea by the consumer that he had no knowledge of the Terms and Conditions of Supply, agreements in writing are entered with each consumer. That will not make the terms purely contractual. The Board in performance of a statutory duty supplied energy on certain specific terms and conditions framed in exercise of a statutory power. Undoubtedly the terms and conditions are statutory in character and they cannot be said to be purely contractual.”

“3. In our opinion, the present two cases are cases of fresh connection. The learned counsel for the respondents (Auction-purchasers) have stated that they have taken fresh connections and they have no objection if their connections are treated as fresh connections given

59 on the dates on which the supply of electricity was restored to the premises. We are clearly of the opinion that in case of a fresh connection though the premises are the same, the auction purchasers cannot be held liable to clear the arrears incurred by the previous owners in respect of power supply to the premises in the absence of there being a specific statutory provision in that regard. Though we find some merit in the submission of the learned counsel for the appellant calling for reconsideration of the wide propositions of law laid down in Isha Marbles' case (supra), we think the present one is not a case for such exercise.”

“62. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, behighly protects public property and behoves everyone to respect public property. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction purchaser who is a third party and is in no way connected with the previous owner/occupier. It

60 may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lacs and lacs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness.”

“10. But the above legal position is not of any practical help to a purchaser of a premises. When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the

61 electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper, to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them. 11. A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconnected for non-payment, may sell away the property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues. Having regard to the very large number of consumers of electricity and the frequent moving or translocating of industrial, commercial and residential establishments, provisions similar to clause 4.3(g) and (h) of Electricity Supply Code are necessary to safeguard the interests of the distributor. We do not find anything unreasonable in a provision enabling the

62 distributor/supplier, to disconnect electricity supply if dues are not paid, or where the electricity supply has already been disconnected for non-payment, insist upon clearance of arrears before a fresh electricity connection is given to the premises. It is obviously the duty of the purchasers/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises. They can also incorporate in the deed of sale or lease, appropriate clauses making the vendor/lessor responsible for clearing the electricity dues up to the date of sale/lease and for indemnity in the event they are made liable. Be that as it may. 12. In this case, when the first respondent, who was the purchaser of a sub-divided plot, wanted a new electricity connection for its premises, the appellant informed the first respondent that such connection will be provided only if the electricity dues are paid pro-rata. They were justified in making the demand. Therefore, it cannot be said that the collection of Rs.8,63,451/- from first respondent was illegal or unauthorized. It is relevant to note that when the said amount was demanded and paid, there was no injunction or stay restraining the appellant from demanding or receiving the dues.”

64 emphasise that under Section 2(c) of the Electricity Act, a consumer means any person who is supplied with energy, and since liability to pay electricity dues is fastened only on the consumer, at the relevant time, the purchaser was not the consumer. It has also been stated that in the absence of consumption of electricity, the subsequent purchaser was merely seeking reconnection without there being any statutory dues towards consumption charges. We had specifically posed a question to the learned counsel for the respondent in the order dated 15.11.2019, that whether, in the context of the judicial pronouncements sought to be relied upon, there was a 3 (supra) specific clause in the nature of Clause 26 as in the present E-auction sale notice, which absolved the Authorized Officer of various dues including “electricity dues”. On the conspectus of the judgments referred to by the respondent, there were no such clauses in the cases in question. 9. We may also notice that there have been subsequent judicial pronouncements dealing with this aspect of electricity dues. A three Judge Bench of this Court has held that the dues under the terms and conditions of supply partake the character of statutory dues (Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board & Ors. 4). The mere fact that agreements were entered into with every consumer only served the purpose of bringing to the notice of the consumer the

65 terms and conditions of supply, but did not make the dues purely contractual in character. 10. We can draw strength from the observations of this Court in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Paramount Polymers (P) Ltd., where there was a similarity as in the present case, of a specific clause dealing with electricity dues. It was observed that in such a scenario if a transferee desires to enjoy the service connection, he shall 4 (1998) 4 SCC 470 5 (2006) 13 SCC 101 (2 Judges Bench) pay the outstanding dues, if any, to the supplier of electricity and a reconnection or a new connection shall not be given to any premises where there are arrears on account of dues to the supplier unless they are so declared in advance. 11. We may also notice that as an auction purchaser bidding in an “as is where is, whatever there is and without recourse basis”, the respondent would have inspected the premises and made inquiries about the dues in all respects. The facts of the present case, as in the judgment aforesaid, are more explicit in character as there is a specific mention of the quantification of dues of various accounts including electricity dues. The respondent was, thus, clearly put to notice in this behalf. 12. The same view in case of a similar clause has been taken in Paschimanchal Vidyut Vitran Nigam Limited & Ors. v. DVS Steels and Alloys Private Limited & Ors. It

66 has been further observed that if any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations so long as such rules and regulations or the terms and conditions are not arbitrary and (2009) 1 SCC 210 (2 Judge Bench) unreasonable. A condition for clearance of dues cannot per se be termed as unreasonable or arbitrary. 13. We may notice a slightly contra view in Haryana State Electricity Board v. Hanuman Rice Mills, Dhanauri & Ors., in a given scenario where the pendency of electricity dues was not mentioned in the terms & conditions of sale, and it was held in those facts that the dues could not be mulled on to the subsequent transferee. 14. We may notice that in Special Officer, Commerce, North Eastern Electricity Supply Company of Orissa (NESCO) v. Raghunath Paper Mills Private Limited & Anr., a distinction was made between a connection sought to be obtained for the first time and a reconnection. In that case, no application had been made for transfer of a service connection from the previous owner to the auction-purchaser, but in fact, a fresh connection was requested. In light of the regulations therein, previous dues had to be cleared only in the case of a reconnection. Hence, the respondents were held to

67 be free from electricity liability. This Court in Southern Power Distribution Company of Telangana Limited (through its CMD) & Ors. found that the facts were similar to 7 (2010) 9 SCC 145 (2 Judge Bench) 8 (2012) 13 SCC 479 (2 Judge Bench) 9 (supra) the NESCO case, and thus followed the same line. 15. We have gone into the aforesaid judgments as it was urged before us that there is some ambiguity on the aspect of liability of dues of the past owners who had obtained the connection. There have been some differences in facts but, in our view, there is a clear judicial thinking which emerges, which needs to be emphasized: A. That electricity dues, where they are statutory in character under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual nature. B. Where, as in cases of the E-auction notice in question, the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is on “AS IS WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS”, there can be no doubt (supra) that the liability to pay electricity dues exists on the respondent (purchaser).

68 C. The debate over connection or reconnection would not exist in cases like the present one where both aspects are covered as per clause 8.4 of the General Terms & Conditions of Supply.”

69 and thereby, the question before the Hon'ble Supreme Court was, whether the auction purchaser had to pay the electricity dues of the previous owner to get restoration of the electricity connection. In this regard, Hon'ble Supreme Court has held that the electricity Board had no charge over the property and the Board could not seek enforcement of the contractual liability against the third party and the said dictum of the Hon'ble Supreme Court was reiterated in the AHMEDABAD ELECTRICITY COMPANY LIMITED (supra). However, Hon'ble Supreme Court in the case of HYDERABAD VANASPATI (supra) took the view that even in the absence of a contract, the terms and conditions of supply would be governed by the statutory regulations and same should be applicable to the consumers who will be bound by them.

“49. Provision for the sale of electricity by the Board to persons other than licensees.— (1) Subject to the provisions of this Act and of regulations, if any made in this behalf, the Board may

70 supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs. (2) In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely:— (a) the nature of the supply and the purposes for which it is required; (b) the co-ordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee; (c) the simplification and standardisation of methods and rates of charges for such supplies; (d) the extension and cheapening of supplies of electricity to sparsely developed areas. (3) Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors.

71 (4) In fixing the tariff and terms and conditions for the supply of electricity, the Board shall not show undue preference to any person. 50 to 55. xxx xxx xxx 56. Leases of generating stations.—No licensee shall except with the previous approval in writing of the Board and subject to any conditions which the Board may think fit to impose, enter into any arrangement whereby any generating station is to be let or held on lease by him, and any such arrangement entered into in contravention of this sub-section shall be void and of no effect.”

72 discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and re-connecting the supply, are paid, but no longer. Where any difference or dispute which by or under this Act is required to be determined by an Electrical Inspector, has been referred to the Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by this section until the Inspector has given his decision: Provided that the prohibition contained in this sub-section shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the Electrical Inspector of the amount of the licensee’s charges or other sums in dispute or for the deposit of the licensee’s further charges for energy as they accrue, and the consumer has failed to comply with such request.”

73 September, 2011 and pursuant to the same, the respondent- GESCOM has passed the impugned order dated 30th September, 2011 and in that view of the matter, the contention of the petitioner-Company that, respondent-GESCOM (Assistant Executive Engineer) has no jurisdiction to pass orders, is not correct and therefore, the said contention is rejected. In this regard, though the learned counsel appearing for the petitioner emphasised that the order dated 09th March, 2007 passed in Writ Petition No.1846 of 2001 is non-est and not binding on the petitioners herein, however, the said Order passed by this court had attained finality and same was not questioned by HMP Cements nor successor-in-interest i.e. the petitioner-Company, which was well aware about the said proceedings at the time of accepting the order of DRT as per paragraphs 25 and 54 of the Judgment of the Tribunal and therefore, the contentions raised by the learned counsel for the petitioner cannot be accepted. In this regard, it is settled principle that, an order, even if not made in good faith and unsatisfactorily to a litigant, is still an act capable of legal consequences unless over-ruled by the competent Court in an appeal/Revision in accordance with law.

74 The said Order dated 09th March, 2007 has attained finality insofar as the petitioner herein is concerned, as the petitioner has purchased the erstwhile HMP Cements Limited through the DRT proceedings as “a going concern” as well as the DRT has categorically held that it cannot adjudicate the claims of the statutory dues of the State and Central Government/statutory bodies and they are at liberty to initiate proceedings for recovery of their dues in accordance with law. In this regard, it is useful to refer to the law declared by the Hon'ble Supreme Court in the case of STATE OF PUNJAB AND OTHERS v. GURDEV SINGH reported in 1991(4) SCC 1, wherein the Hon'ble Supreme Court has observed thus: ”But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East. Elloe Rural District Council, [1956] AC 736 at 769 Lord Redcliffe observed: "An order even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its fore- head. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its

75 ostensible purpose as the most impeccable of orders." Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for their also the order can effectively be resisted in law only by obtaining the deci- sion of the Court (See: Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles: "The truth of the matter is that the court will invalidate an order only if 'the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plain- tiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another."

76 it may be permissible to do so. No order bears a label of its being valid or invalid on its forehead. Anyone affected by any such order ought to seek redress against the same within the period permissible for doing so. We may in this regard refer to the following oft−quoted passage in Smith v. East Elloe Rural District Council (1956 AC 736). The following are the observations regarding the necessity of recourse to the Court for getting the invalidity of an order established: An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' [Smith case (1956 AC 736) pp. 769−70]. This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed put repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects. [Ed.: Wade and Forsyth in Administrative Law, 7th Edn., 1994.] 12 (2013) 3 SCC 182. 28. The above case was approved by this Court in Krishnadevi Malchand Kamathia v. Bombay Environmental

77 Action Group [(2011) 3 SCC 363], wherein this Court observed: (SCC pp. 369−70, para 19) 19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person. 29. To the same effect is the decision of this Court in Pune Municipal Corpn. v. State of Maharashtra [(2007) 5 SCC 211] wherein this Court discussed the need for determination of invalidity of an order for public purposes: (SCC pp. 225−26, paras 36 & 38−39) 36. It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As Prof. Wade states: The principle must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court [H.W.R. Wade, Administrative Law (6th Edn., Clarendon Press, Oxford 1988) 352]. He further states: The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be

78 hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the void order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another. [H.W.R. Wade, Administrative Law (6th Edn., Clarendon Press, Oxford 1988) 352−53]. 38. A similar question came up for consideration before this Court in State of Punjab v. Gurdev Singh [(1991) 4 SCC 1]. 39. Setting aside the decree passed by all the courts and referring to several cases, this Court held that if the party aggrieved by invalidity of the order intends to approach the court for declaration that the order against him was inoperative, he must come before the court within the period prescribed by limitation. If the statutory time of limitation expires, the court cannot give the declaration sought for. 30. Reference may also be made to the decisions of this Court in R. Thiruvirkolam v. Presiding Officer [(1997) 1 SCC 9] , State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth [(1996) 1 SCC 435] and Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd. [(1997) 3 SCC 443], where this Court has held that an order will remain effective and lead to legal consequences unless the same is declared to be invalid by a competent court. 47. Having considered the law declared by the Hon'ble Supreme Court above, the observation made by this Court in Writ Petition No.1846 of 2001 vide its order dated 09th March,

79 2007 is binding on the petitioner-Company and therefore, the petitioner-Company is liable to pay the lawful demand made by the respondent-GESCOM and hence, the point No.1 raised in these writ petitions is answered in favour of the respondent-GESCOM and accordingly, it is held that the claim raised by the respondent-GESCOM in the impugned order dated 30th September, 2011 (Annexure-A) is just and proper and same is in furtherance of the order dated 22nd August, 2011 passed by this Court in Writ Petition No.15983 of 2010 and therefore, the Writ Petition is entertained insofar as challenging impugned order Annexure-A. However, as regards point No.2 as to whether Writ Petition 81466 of 2011 is maintainable is concerned, it is to be held that the writ petition is not maintainable under Article 226 of India and accordingly, the same is answered insofar as challenging the impugned notification only but not with regard to quantification of due to be payable by the petitioner-Company to respondent-GESCOM. 48. At the outset, in all the writ petitions, preliminary objection was raised on behalf of the respondent-GESCOM on the maintainability of writ petitions on the ground that the petitioner-Company is having efficacious remedy under the

80 KERC. It is settled principle of law that when a Statutory Forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. In this regard, it is to relevant to refer to the law declared by the Hon'ble Supreme Court in the case of UNION OF INDIA AND OTHERS v. MAJOR GENERAL SHRI KANT SHARMA AND ANOTHER reported in (2015)6 SCC 773 wherein at paragraphs 30 to 36 of the judgment, the Hon'ble Supreme Court, has observed thus:

“30. In Nivedita Sharma vs. Cellular Operators Association of India and others, (2011)14 SCC 337, this Court noticed that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The Court further noticed the previous decisions of this Court wherein the Court adverted to the rule of self-restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person as follows: 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court observed: "11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in

81 Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: '... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. and Secy. of State v. Mask and Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: "77. ... So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32- is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is,

82 however, equally obvious that while [pic]exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment." 15. In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge. 16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Supt. of Taxes8 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field." 31. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and

83 another vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108, a three-Judge Bench held: "80. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific [pic]law, would impliedly oust the jurisdiction of the civil courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised. 81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon

84 the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. However, it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case." 32. In Cicily Kallarackal vs. Vehicle Factory 2012(8) SCC 524, the Division Bench of this Court held: "4. Despite this, we cannot help but state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds. XXX XXX XXX 9. ... we hereby make it clear that the orders of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27-

85 A(1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be a proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission." 33. Another Division Bench of this Court in Commissioner of Income Tax and others vs. Chhabil Dass Agrawal, (2014)1 SCC 603 held: "11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non- entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and State of H.P. v. Gujarat Ambuja Cement Ltd. 12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, Sangram Singh v. Election Tribunal, Union of India v. T.R. Varma, State of U.P. v. Mohd. Nooh and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the

86 remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. 13. In Nivedita Sharma v. Cellular Operators Assn. of India, this Court has held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: "12. In Thansingh Nathmal v. Supt. of Taxes this Court adverted to the rule of self- imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: '7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by the statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave

87 the party applying to it to seek resort to the machinery so set up.' 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court observed: '11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: (ER p. 495) xxx xxx xxx 14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: '77. ... So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32- is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.'" 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of

88 judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation." Statutory Remedy 34. In Union of India vs. Brigadier P.S. Gill, (2012) 4 SCC 463, this Court while dealing with appeals under Section 30 of the Armed Forces Tribunal Act following the procedure prescribed under Section 31its maintainability, held as follows: "8. Section 31 of the Act extracted above specifically provides for an appeal to the Supreme Court but stipulates two distinct routes for such an appeal. The first route to this Court is sanctioned by the Tribunal granting leave to file such an appeal. Section 31(1) in no uncertain terms forbids grant of leave to appeal to this Court unless the Tribunal certifies that a point of law of general public importance is involved in the decision. This implies that Section 31 does not create a vested,

89 indefeasible or absolute right of filing an appeal to this Court against a final order or decision of the Tribunal to this Court. Such an appeal must be preceded by the leave of the Tribunal and such leave must in turn be preceded by a certificate by the Tribunal that a point of law of general public importance is involved in the appeal. 9. The second and the only other route to access this Court is also found in Section 31(1) itself. The expression "or it appears to the Supreme Court [pic]that the point is one which ought to be considered by that Court" empowers this Court to permit the filing of an appeal against any such final decision or order of the Tribunal. 10. A conjoint reading of Sections 30 and 31 can lead to only one conclusion viz. there is no vested right of appeal against a final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act. The only mode to bring up the matter to this Court in appeal is either by way of certificate obtained from the Tribunal that decided the matter or by obtaining leave of this Court under Section 31 for filing an appeal depending upon whether this Court considers the point involved in the case to be one that ought to be considered by this Court. 11. An incidental question that arises is: whether an application for permission to file an appeal under Section 31 can be moved directly before the Supreme Court without first approaching the Tribunal for a certificate in terms of the first part of Section 31(1) of the Act? 12. In the ordinary course the aggrieved party could perhaps adopt one of the two routes to bring up the matter to this Court but that does not appear to be the legislative intent evident from Section 31(2) (supra). A careful reading of the section shows that it not only stipulates the

90 period for making an application to the Tribunal for grant of leave to appeal to this Court but also stipulates the period for making an application to this Court for leave of this Court to file an appeal against the said order which is sought to be challenged. 13. It is significant that the period stipulated for filing an application to this Court starts running from the date beginning from the date the application made to the Tribunal for grant of certificate is refused by the Tribunal. This implies that the aggrieved party cannot approach this Court directly for grant of leave to file an appeal under Section 31(1) read with Section 31(2) of the Act. 14. The scheme of Section 31 being that an application for grant of a certificate must first be moved before the Tribunal, before the aggrieved party can approach this Court for the grant of leave to file an appeal. The purpose underlying the provision appears to be that if the Tribunal itself grants a certificate of fitness for filing an appeal, it would be unnecessary for the aggrieved party to approach this Court for a leave to file such an appeal. An appeal by certificate would then be maintainable as a matter of right in view of Section 30 which uses the expression "an appeal shall lie to the Supreme Court". That appears to us to be the true legal position on a plain reading of the provisions of Sections 30 and 31." 35. Thus, we find that though under Section 30 no person has a right of appeal against the final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act, but it is statutory appeal which lies to this Court.

91 36. The aforesaid decisions rendered by this Court can be summarised as follows: (i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra and S.N. Mukherjee). (ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.(Refer: Mafatlal Industries Ltd.).

(iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma). (iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma).” 49. It is also relevant to mention the law declared by the Hon'ble Supreme Court in the case of CHANDRA KISHORE JHA v. MAHAVIR PRASAD reported in (1999)8 SCC 266 wherein at paragraph 16 and 17 of the judgment it is observed thus:

“16. In our opinion, reliance on Rule 24 of Chapter XXI-E read with Rule 13(iii) of Chapter II, Part I of the High Court Rules is misplaced. The plain phraseology of Rule 6 read with the proviso thereto makes it abundantly clear that formal presentation of an election petition can be made only to the designated election Judge in the open Court and "if on any Court day the Judge is not available on account, of temporary absence or otherwise, the petition may be presented before the Bench hearing civil applications and motions. Thus, the High Court Rules do not prescribe any other mode of presentation of an election petition except in the open Court either before the designated election Judge or before the Bench hearing civil applications and motions, where the designated election Judge is not available on account of temporary absence or otherwise. The presentation of an election petition to the Registrar has not been prescribed as a mode of presentation of an election petition by the Rules. An election petition is not included in any of the clauses of Rule 13. The learned designated election Judge rightly found that presentation of the election petition to the Bench Clerk on 16.5.1995 at 4.05 P.M. was not a proper presentation under the Rules. In the absence . of any provision in the Rules, presentation of an election petition to the Registrar would not stand at any better footing than the presentation of the petition to the Bench Clerk. An election petition being a purely statutory remedy, nothing is to be read into the Rules - nothing is to be

93 presumed - which is not provided for in the Rules. Rule 24 (supra) cannot advance the case of the returned candidate any further because of the absence of mention of an election petition in Rule 13 (supra).” 17. In our opinion insofar as an election petition is concerned, proper presentation of an election petition in the Patna High Court can only be made in the manner prescribed by Rule 6 of Chapter XXI-E. No other mode of presentation of an election petition is envisaged under the Act or the Rules thereunder and, therefore, an election petition could, under no circumstances, be presented to the Registrar to save the period of limitation. It is a well- settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (See with advantage : Nazir Ahrnad v. King Emperor, 63 Indian Appeals 372=AIR 1936 PC 253; Rao Shiv Bahadw Singh & Anr. V. State of Vindhya Pndwh, 1954 SCR 1098 = AIR 1954 SC 322. State of Utter Pradesh v. Singhan Singh & Ors., AIR 1964 SC 358 = (1964) 1 SCWR 57] An election petition under the Rules could only have been presented in the open Court upto 16.5.1995 till 4.15 P.M. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limrtation. That, however, was not done. However, we cannot ignore that the situation in the present case was not of the making of the appellant. Neither the designated election Judge before whom the

94 election petition could be formally presented in the open Court nor the Bench hearing civil applications and motions was admittedly available on 16.5.1995 after 3.15 P.M., after the Obituary Reference since admittedly the Chief Justice of the High Court had declared that "the Court shall not sit for the rest of the day" after 3.15 P.M. Law does not expect a party to do the impossible - impossiblium nulla obligatioest as in the instant case, the election petition could not be filed on 16.5.1995 during the Court hours, as far all intent and purposes, the Court was closed on 16.5.1995 after 3.15 P.M.”

"7. The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Art. 226 of the Constitution, the machinery created

96 under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up."

"6. On the first point, we are of opinion that though the High Court have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. We have been referred to cases in which orders had been issued directing the state to refund taxes illegally collected, but all such had been those in which the petitions challenged the validity of the assessment and for consequential relief for the return of the tax illegally collected. We have not been referred to any case in which the courts were moved by a petition under Article 226 simply for the purpose of obtaining refund of money due from the State on account of its having made illegal exactions. We do not consider it

97 proper to extend the principle justifying the consequential order directing the refund of amounts illegally realised, when the order under which the amounts had been collected has been set aside, to cases in which only orders for the refund of money are sought. The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and, therefore, could take action under Art. 226 for the protection of their fundamental right and the Courts, on setting aside the assessment orders exercised their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and, therefore, hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right."

"9. We therefore hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defenses to the claim, defences which cannot,

98 in most cases, be appropriately raised and considered in the exercise of writ jurisdiction."

"14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection or a petition in limine will normally be justified,

99 where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons."

"10. It is not necessary for this case to express an opinion on the point as whether the various provisions of the Code of Civil Procedure apply to petitions under article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government,

100 within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition see Gunwant Kaur v. Bhatinda Municipality".

101 provisions contained in Section 56 of the Electricity Act, 2003; Section 24 of the Indian Electricity Act, 1910; and Section 6 of Regulation, 2004, it is relevant to mention the law declared by the Hon'ble Supreme Court in the case of NIVEDITA SHARMA v. CELLULAR OPERATORS ASSOCIATION OF INDIA AND OTHERS reported in 2011(14) SCC 337, wherein the Hon'ble Supreme Court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. It is settled principle of law that the rule of self-restraint by the High Court under Article 226 that writ petition will not be entertained if the effective remedy is available to the aggrieved person in respect of disputed facts (see NIVEDITA SHARMA (supra) paragraphs 13 to 16).

102

“80. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific law, would impliedly oust the jurisdiction of the Civil Courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the Courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised. 81. Should the Courts determine on merits of the case or should it preferably answer the preliminary issue

103 or jurisdictional issue arising in the facts of the case and remit 65 the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where it involves primary questions of jurisdiction or the matters which goes to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. However, it should only be for the specialized Tribunal or the appellate authorities to examine the merits of assessment or even factual matrix of the case.”

104 Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds.

5 to 8. xxx xxx xxx

105 TAX AND OTHERS v. CHHABIL DASS AGARWAL reported in 2014(1) SCC 603 paragraphs 11 to 15 has observed thus:

“11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self- imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499). 16. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah,

106 AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. 17. In Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: 12. In Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self- imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7). “7. … The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition

107 under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.” 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 this Court observed: (SCC pp. 440-41, para 11) “11. … It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) ‘… There are three classes of cases in which a liability may be established founded upon a statute. … But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. … The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.’ The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and Secy. of State v. Mask and Co., AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has

108 been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.” 14. In Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: “77. … So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.” 18. In Union of India vs. Guwahati Carbon Ltd., (2012) 11 SCC 651, this Court has reiterated the aforesaid principle and observed: “8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta, (1979) 3 SCC 83. In the said decision, this Court was pleased to observe that:

“23. … when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded.””

109 19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”

110 “18. In the next reported decision relied upon by the respondent No. 1 in Babubhai (supra), no doubt this Court opined that if need be, it would be open to the High Court to cross-examine the affiants. We may usefully refer to paragraph 10 of the said decision, which reads thus: “10. It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words “as far as it can be made applicable” make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to

111 be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Gunwant Kaur v. Bhatinda Municipality [(1969) 3 SCC 769]. If, however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect.” (emphasis supplied) This decision has noticed Smt. Gunwant Kaur (supra), which had unmistakably held that when the petition raises complex questions of facts, the High Court may decline to try a petition. It is further observed that if on consideration of the nature of the controversy, the High

112 Court decides to go into the disputed questions of fact, it would be free to do so on sound judicial principles. Despite the factual matrix in the present case, the High Court not only ventured to entertain the writ petition, but dealt with the same in a casual manner without adjudicating the disputed questions of fact by taking into account all aspects of the matter. The manner in which the Court disposed of the writ petition, by no stretch of imagination, can qualify the test of discretion having been exercised on sound judicial principles.” 61. Perusal of the entire records would reveal that the sale certificate was issued in favour of the petitioner-Company in pursuance of the observation made by the DRT, whereunder, the petitioner-Company agreeing to settle the dues of Central, State and other statutory bodies, and the said fact is forthcoming from the order sheet of the DRT. The same is extracted herebelow: “Shri Kulkarni, the learned Advocte, appearing for M/s. Zawar Cement P. Ltd. intending to take over M/s. Shahbad Cement Factory unit as a going concern along with all the existing liabilities, has submitted before this Tribunal eighty-nine numbers Demand Drafts before this Tribunal. The Xerox copies of those eighty-nine Demand Drafts have also been submitted before this Tribunal.” It is further observed that:

113 “The net result is that the dues of the nine secured creditors shall have to be met and borne by M/s. Global Cement P. Ltd. The existing perplexing situation has been further eased by the intention expressed on behalf of the bank on Monday, November 27, 2006 through the specific statutory examination of Shri V. A. Anand, the Asstt. General Manager of the respondent bank and the application of the respondent company, which has been the constituent part of the present discussion.” Further it is also observed as follows: “To run the factory is no doubt a social responsibility; to implement the above type of responsibility, each of the above seven secured creditors should exhibit the sympathetic, considerate attitude otherwise the huge number of the workmen would be compelled to starve; and lastly, to become the victims of the supreme tragedy. It should be borne into mind by each of the secured creditors that interest on interest shall have every possibility of inflating the claimable recoverable amount. Interest on interest shall have nevertheless be responsible for closing the door for any sort of amicable settlement, which has the close connection with the reduction of the stock of the bad debts likely to be “written off”. Furthermore, if each of the secured creditors abandons the interest portion, which is integrally connected with the accounting principle, settlement would be forthcoming. M/s. Zawar

114 Cement P. Ltd., has exhibited repeatedly its attitude to run the closed Shahabad Cement Factory, which has the ultimate effect of the employment of more than eight hundred fifty workmen (herein the appellant), the effect of supplying the subsistence level to the economically dependent persons of those workmen and the further reemployment of the persons living in the Shahabad area, surrounding the said cement factory. “After keeping in mind the socio-economic factors, this Tribunal is hereby expressing its desire that each of the secured creditors should join hands with M/s. Zawar Cement P. Ltd., and abandon the idle interest portion and should approach this Tribunal with a claim that shall relate itself with the day and the date of the closure of the factory which does appear from the unchallengeable, sacrosanct record maintained in connection with Appeal No.1 of 2005 that has been jointly preferred by the almost retrenched workmen against the above dated sale order of the moveable properties of the respondent certificate debtor No.1 to be December 07, 1997.” 62. In view of the observation made by the DRT, it is made clear that the petitioner-Company agreed to settle the dues of all the statutory bodies including respondent-GESCOM and thereby cannot challenge the impugned order on the ground that the outstanding dues have to be adjusted towards the

115 statutory deposit made by the erstwhile HMP Cements and in view of the same, the contentions raised by the learned counsel appearing for the petitioner cannot be accepted and the writ petitions deserve to be dismissed. 63. This Court in Writ Petition No.6774 of 1998 decided on 09th September, 1999, at paragraph 12 of the Order, has observed thus: “12. The workmen and the Board may file necessary applications before the B.I.F.R for the recovery of their legitimate dues fro the company. The charge created on the properties of the company by virtue of the interim order shall continue until the dues of the Board and the workmen are paid.” 64. Perusal of the aforementioned observation made in the above Writ Petition, as well as the finding recorded by this Court in Writ Petition No.1846 of 2001 disposed of on 09th March, 2007, the claim made by the respondent-GESCOM is just and proper and the petitioner-Company is liable to pay the outstanding amount on behalf of the erstwhile HMP Cements, the

116 petitioner-Company purchased the unit as “a going concern”, as observed by DRT. 65. In view of the discussion and observations made above, point No.1 that arose for consideration in these petitions is answered in favour of the respondent-GESCOM and held tat the petitioner-Company is liable to pay the arrears of due to the respondent-GESCOM. As regards Point No.2 is concerned, it to be held that the Writ Petitions preferred by the petitioner- Company are not maintainable under Article 226 of the Constitution of India, as the Karnataka Electricity Regulatory Commission is the competent authority under the relevant regulations to determine the actual payment to be made by the petitioner-Company to the respondent-GESCOM. 66. The Division Bench of this Court in the case of M/S. BIDAR RUBBER AND RECLAIMS PRIVATE LIMITED v. M/S. GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED AND ANOTHER in Writ Appeal No.1678 of 2006 decided on 13th October, 2006 has held that, if the appellant is so advised, it ay also consider filing an appeal before the Karnataka Electricity

117 Regulatory Commission and/or instate a duly contemplated suit for appropriate reliefs. 67. In view of the law laid down by the Hon'ble Supreme Court in the aforesaid cases and the Division Bench of this Court in the abovementioned Writ Appeal; and for the foregoing reasons and observations made above, as regards prayer made by the petitioner in Writ Petitions No.84166 of 2011 and 204484 of 2015 are concerned, liberty is reserved to the petitioner- Company to file appropriate application/appeal before the Karnataka Electricity Regulatory Commission to decide the quantification of due to be made to the respondent-GESCOM. If such an application/appeal is filed by the petitioner-Company, the Karnataka Electricity Regulatory Commission shall consider the same and pass appropriate orders, in accordance with law, within an outer limit of six months from the date of receipt of a certified copy of this Order. In respect of the prayer made in Writ Petition No.201934 of 2019 is concerned, the 2nd respondent shall continue the grievance of the petitioner-

118 Company, only after issuance of No Objection Certificate by the respondent-GESCOM in favour of the petitioner-Company. In view of the disposal of the petitions, pending applications, if any, also stand disposed of.

Sd/- JUDGE

lnn