IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 14495 of 2009 Between: M/s. Vani Marine Pvt. Ltd. Rep by its Managing Director Having its Factory at Plot No. 27 Fishing Harbour, Visakhapatnam. ..... PETITIONER AND 1 Visakhapatnam Port Trust, Rep by its Vice-Chairman, Visakhapatnam. 2 The Plant Manager, Visakhapatnam Port Trust, Ore Handling Complex, Visakhapatnam. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction particularly in the nature of Writ of Mandamus declaring the proceedings of Respondent No. 2 bearing No. ICME/OHC/ELEC, dated 12-6-2009 as arbitrary, illegal, ultra virus to the provisions of Article 14 and 19 (1) (g) of the constitution of India, besides being in violation of the principles of natural justice. Counsel for the Petitioner : MRSMSVSSUDHA RANI Counsel for the Respondents : MR. K.SRINIVASA MURTHY The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.14495 OF 2009 ORDER : The petitioner company is running a Ice factory under the name and style of M/s. Vani Marine Ice Factory at Plot No.27, Fishing Harbour at Visakhapatnam. It is stated that the petitioner was granted a long lease in respect of the premises in question by the respondent No.1 – Visakhapatnam Port Trust - and that being a bulk consumer of Northern Power Distribution Company Limited (NPDCL) , the 1st respondent has been supplying the electrical power to the petitioner factory out of the power received by it. It is not in dispute that the petitioner has been paying the electricity consumption charges to the 1st respondent as per the electricity meter readings installed in the premises of the petitioner’s Ice factory. It appears that the electricity meter installed in the premises of the petitioner’s Ice factory was found to be defective and the same was replaced on 24.03.2001. Thereafter, the 1st respondent called upon the petitioner to pay a sum of Rs.9,81,260/- towards the back-billing amount of consumption charges on account of the defective meter. The said amount was paid by the petitioner. Long thereafter, the 1st respondent by letter dated 12.06.2009 made a further demand of Rs.11,56,083/- allegedly due from the petitioner towards interest on the back-billing amount of Rs.9,81,260/-. The petitioner was called upon to pay the said amount within 15 days failing which the electrical service connection would be disconnected. Though the petitioner disputed its liability to pay the interest as demanded, the 1st respondent refused to consider and was insisting on payment under the threat of disconnection of power supply. Aggrieved by the said action, the present writ petition is filed seeking a declaration that the impugned demand dated 12.6.2009 is arbitrary, illegal and apart from being violative of Articles 14 and 19 (1)(g) of the Constitution of India. I have heard the learned counsel for the petitioner and perused the material on record. Sri V.S.R. Anjaneyulu, the learned counsel for the petitioner vehemently contended that since there is no contract between the parties to pay interest on the alleged back-billing of consumption charges, the impugned action of the 1st respondent is arbitrary and illegal. It is also contended that the action of the respondents in demanding the payment of interest without issuing any prior notice is in violation of the principles of natural justice. It is also the contention of the petitioner that in the absence of any agreement between the parties inter se for payment of interest, the impugned demand is without authority apart from being a colourable exercise of power. Admittedly the power is being supplied to the petitioner’s factory through the 1st respondent and the petitioner company has been paying the consumption charges to the 1st respondent. The petitioner claims that there is no agreement between the petitioner and the 1st respondent for supply of the electricity on payment of consumption charges much less the alleged back-billing charges and the interest thereon. However, it is not the petitioner’s case that the 1st respondent is under any statutory obligation to supply the power to the petitioner. Thus, it is clear that it is a voluntary act on the part of the parties and the rights and liabilities, if any, relating to supply of power through the 1st respondent are not regulated by any statute as such. In the circumstances, even assuming that the petitioner is not liable to pay any interest as per the understanding/agreement between them and the 1st respondent has no authority to charge interest, the impugned demand would only amount to breach of the terms and conditions mutually agreed upon between the parties. Such an agreement between the parties which is a voluntary act on their part cannot be enforced by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. However, the learned counsel for the petitioner vehemently contended that the 1st respondent, which is a Government Undertaking, cannot be allowed to act arbitrarily. While relying upon a decision of the Supreme Court in JAMSHED HORMUSJI WADIA v. BOARD OF TRUSTEES, PORT OF MUMBAI[1], the learned counsel further contended that the 1st respondent is bound to be reasonable and fair in its dealing with lessees. It is true that the 1st respondent is an authority within the meaning of Article 12 of the Constitution of India, however the impugned action of the 1st respondent is purely in the private contractual sphere. Absolutely, no case is made out to show that the 1st respondent is performing a public function so far as the supply of power to the petitioner factory is concerned. The observations made by the Apex Court in JAMSHED HORMUSJI WADIA’S case (1 supra) in the particular facts and circumstances of the said case that the State and its instrumentalities continue to be ruled by Article 14 of the Constitution of India have no application to the case on hand. So far as the present case is concerned, the impugned action of the 1st respondent which does not involve any public law element cannot be held to be in violation of Article 14 of the Constitution of India. In BINNY LIMITED vs. SADASIVAN[2] the Supreme Court has elaborately dealt with the nature of the judicial review with which the High Courts are vested under Article 226 held as under : “Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action.” In the light of the settled principle of law and having regard to the reasons stated above, the remedy of the petitioner lies elsewhere but the dispute cannot be dealt with under Article 226 of the Constitution of India. Hence, I am not inclined to entertain this writ petition and accordingly the Writ Petition is dismissed at the stage of admission leaving it open to the petitioner to work out the appropriate remedy available under common law for redressal of its grievance. No costs. ______________ G. ROHINI, J. Dt. 22.07.2009 gbs Note:- CC by 23.07.2009 (B/O) gbs [1] AIR 2004 SC 1815 [2] AIR 2005 SC 3202