1 D.B. CIVIL SPECIAL APPEAL NO.758/2006 National Industries, Banswara Vs. Ajmer Vidyut Vitran Migam Ltd, Ajmer & Anr, Date : 16.04.2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE BHANWAROO KHAN Mr. V.K. Mathur for the appellant. Mr. Ravi Bhansali for the respondents. ________ BY THE COURT:- (PER HON'BLE RAJESH BALIA, J.) This appeal is directed against the order of learned Single Judge dated 11.5.2006 dismissing the writ petition filed by the petitioner. The petitioner appellant has a middle scale industry and electric load of 88 HP at his factory. On 26.4.2003, it had applied for increase of electric load from 88 HP to 260 HP. At the time of making this application, the 2 writ petition No.4074/2002 filed by the petitioner was pending consideration challenging a demand raised against him in respect of which, he has gone before the Settlement Committee by deposit of 50% of the amount demanded from him by fulfilling the conditions for approaching the Settlement Committee. The Settlement Committee having not given any relief, the petitioner had challenged the said order. While admitting the writ petition on 20th December, 2002, the learned Single Judge passed the following order:- “Meanwhile the respondents are restrained from disconnecting the electric connection of petitioner in pursuance of demand notice dated 12.10.2002 (Annex.3.)” By order dated 13th August, 2003, the interim order was confirmed with liberty to the respondents to file reply and pray for vacation. Since then the interim order was continuing and has not been vacated so far. It is in the aforesaid backdrop, the petitioner had sent reminder on 13th April, 2003 to the 3 respondents pointing out the interim order passed by this Court in writ petition No.4974/2002 and also pointed out that the respondent officers have communicated to him that until the writ petition is withdrawn and the balance amount is deposited, his application for enhancement of connected load shall not be considered and sanctioned. Pointing out this fact, he has clearly drawn the attention of the authorities also that during this period by order dated 9.6.2003, he has also been sanctioned to alter his transformer from 100 KVR to 200 KVR to avail the extended load and that in the absence of extended load, he was not able to run the industry and also invited attention of the respondents to the interim order passed by this Court and pointed out that indirectly pressurizing the petitioner to deposit the balance amount or withdraw the writ petition amounts to defeating the process of court and affecting the rights of the petitioner. Despite this reminder, nothing was done then the petitioner appellant wrote another letter on 8th August, 2003 pointing out that his application for 4 extension of electricity load from 88 HP to 260 HP is retained, but the demand of 90 MD was sought to be increased to 120 MP and this application was sent to Executive Engineer for releasing connection and by order dated 15.9.2003, the sanction was accorded to extend load to 257 HP for the said demand and 3 HP for lighting. Thus, in total sanction for extending the load to 260 HP was accorded and format in pursuance thereof was also completed by 27th Nov., 2003. Meanwhile, after issuing sanction for extended load, a notice was issued to the petitioner-firm on 29th October, 2003 raising a bill of Rs.39,941/- under the heading of 'misused amount'. The appellant had deposited the entire amount under protest and sanctity of the said demand was challenged by way of writ petition before this Court. The petitioner has contested that in terms of para 6.6 of the guidelines where an application for extended load remains undecided in the case of middle scale industry for 45 days or more the application is 5 deemed to have been sanctioned. The period in the case of small scale industries is 30 days. The petitioner's case is that he has acted in accordance with said clause and therefore, he has not committed any mistake by extending the load after expiry of 45 days. In the present case, the application has been made almost about 4 months before. The respondents have contested that since the demand referred to in writ petition No.497/2002 was still outstanding, para 6.6 did not operate in the case of the petitioner. The learned Single Judge has sustained the objections raised by the respondents in dismissing the writ petition considering that there was no stay of the demand. Only the interim order was for not disconnecting the electricity. Hence, the demand cannot be said to be unenforcible. We have considered the rival submissions and considered the material on record. 6 In the facts and circumstances of this case, we are unable to sustain this contention of the respondents. Notwithstanding the interim order passed by this Court as noticed by us above, there was no presently enforcible demand in existence as on the date the petitioner had moved the application or had extended his connected load as applied for under the provisions of deemed sanction by considering that he has no outstanding payable demand as on the date. We have already noticed above that interim order was clearly related to the demand in dispute in the writ petition and the disconnection of electricity was stayed only in pursuance to the demand notice under challenge. Therefore, it is obvious that as on the date the petitioner had moved an application for extended load the respondents could not have enforced the demand by coercion or pressuring unless the interim order was vacated or the writ petition was dismissed. We have already noticed that the interim order was continuing on the date he moved the application dated 13.8.2003. The interim order was also confirmed in the presence of the 7 counsel for the respondents. Obviously the demand in the present case could not have come in the way of the petitioner for securing the sanction of enhanced load. The respondents were conscious of this position, when the note was placed on the application of the petitioner as admitted by the respondents that the application may be considered without noticing the demand, the subject matter of dispute in the aforesaid writ petition. In that view of the matter, apparently, the said outstanding demand could not have come in the way of operating of para 6.6 and for assuming that on expiry of 45 days from the date of making the application for enhancement of connected load without any decision thereof results in deemed sanction. In these circumstances, apparently, the formalities can be completed only thereafter this course appears to have been followed by the respondents. It also goes to show that had enhancement of connected load of electricity was considered breach of terms by the respondents, in the first instance, they 8 would not have been accorded sanction. In the totality of the circumstances, we are of the opinion that the petitioner has bonafidely acted on the effect of the interim order passed by this Court, effect of which was also not disputed by the respondents which is apparent from the fact that the respondents had admitted to have considered the application by keeping out the outstanding demand under challenge from consideration. The imposition of penalty in the circumstances was wholly unjustified. Accordingly, the appeal is allowed. The judgment under appeal is set aside. The writ petition is allowed. The demand having already deposited may be adjusted against the future dues. [BHANWAROO KHAN], J. [ RAJESH BALIA ], J. babulal/