JUDGMENT Binod Kumar Roy and M. L. Singhal, JJ.
1. The petitioners have come up with two prayers--(i) to quash the demand notice dated 5.3.1997 as contained in Annexures '9A. 9B and 9C' to the writ petition, which were issued pursuant to non-payment of electrical bills by the petitioners to respondent No. 1--the U. P. State Electricity Board by grant of a writ of certiorari, (ii) to command the respondents not to start recovery proceedings against them without prior sanction of the B.I.F.R. by grant of a writ of mandamus.
2. A lot of submissions were made by Sri S. P. Singh, learned counsel appearing on behalf of the petitioners, while trying to support the prayers with reference to several case laws. His main submissions were that as the proceedings were pending before the B.l.F.R. the bills cannot be paid without its sanction and that before the Electrical Engineer the petitioners had prayed for referring the dispute to the Electrical Inspector, which was not done illegally.
3. Sri Sudhir Agarwal, learned counsel appearing on behalf of the respondents, on the other hand, submitted, inter alia, that the prayers made by the petitioners are barred on account of applicability of the general principles of res judicata ; the petitioners should have moved the authority after depositing the disputed amounts mentioned in the bills subject to the result of the decision of the Electrical Engineer. The dispute was not referable to the Electrical Inspector as it was not a case of defective meter. He, too, placed reliance on a number of decisions of this Court as well as the Apex Court.
4. The primal question, which requires to be answered by us ts as to whether the petitioner No. 1, which became sick since 26.2.1988, is entitled to the reliefs claimed for where the recovery of the amount of the electrical bills was/is sought to be recovered by the respondents on account of supply of the Electrical energy to the petitioner No. 1 after it had become sick?
5. In our view this question has to be answered in the negative. Le., to say against the petitioners.
6. The petitioners came up earlier before this Court in Civil Misc. Writ Petition No. 21537 of 1996 for quashing the recovery proceedings instituted on account of non-payment of electrical bills issued on 12.6.1996 (as contained in Annexures '11A, 11B and 11C') as also the demand notices issued on 12.6.1996 (as contained in Annexures '12A, 12B and 12C'). A Division Bench of this Court vide its judgment and order dated 17.7.1996 held that that the respondents are justified in demanding dues against the petitioners after rejecting the submissions which have been repeated before us though supplemented with further arguments. The operative part of the decision of this Court reads thus :
"The main thrust of the submissions of the learned counsel for the petitioners is that the company has been declared as sick industrial company and the respondents are not justified in taking any proceedings for recovery of the amount in view of the provisions of Section 22 of the Act. Section 22 (1) of the Act provides that no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof shall He or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority.
It is not disputed that the company was declared as a sick industrial company by the Board on 26.2.1988 but the company continued to function and consumed electricity and on 27th March, 1996, for three separate connections, the bills were sent for the period 1.10.1991 to 28.2.1996. The amount of the bills was not paid and thereafter demand notice has been sent on 12th June. 1996 under Section 3 of U. P. Government Electrical Undertakings (Dues Recovery) Act, 1958 and further the bills have been sent for the period covering up to 31st May, 1996 which has been filed as Annexures 11A, 11B and 11C to the writ petition. The legislative intent was to rehabilitate the sick company in various modes as provided under Section 18 of the Act. The Company, however, by functioning and taking raw materials, electric connection or consuming any other article or incurring further liability, cannot take shelter of Section 22 of the Act by saying that the amount which it is liable to pay to the supplier will not be paid unless the consent of the Board is taken.
In M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras. AIR 1992 SC 1439, where the landlord filed a suit for eviction of the company after terminating the tenancy on the ground of default in payment of arrears of rent, the argument raised on behalf of the company that it is not liable to pay the rent or eviction as it has been declared a sick industry, was repelled by their Lordships of the Supreme Court explaining the object of the enactment in the following words :
"We may, in this context, point out that, as indicated in the Preamble, the Act has been enacted to make special provisions with a view to securing the timely detection of sick and potentially sick companies owning industrial undertakings, _the speedy determination by a Board of experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect of such companies and the expeditious enforcement of the measures so determined. The provision regarding suspension of legal proceedings contained in Section 22 (1) seeks to advance the object of the Act by ensuring that a proceeding having an effect on the working or the finance of a sick industrial company shall not be instituted or continued during the period the matter is under consideration before the Board or the Appellate Authority or a sanctioned scheme is under implementation without the consent of the Board or the Appellate Authority. It could not be the intention of Parliament in enacting the said provision to aggravate the " financial difficulties of a sick industrial company while the said matters were pending before the Board or the Appellate Authority by enabling a sick industrial company to continue to incur further liabilities during this period. This would be the consequence if sub-section (1) of Section 22 is construed to bring about suspension of proceedings for eviction instituted by landlord against a sick industrial company which has ceased to enjoy the protection of the relevant rent law on account of default in payment of rent."
In C.E.S.C. Limited and others v. Bowrech Cotton Mills Co. Ltd. and others. 1993 Suppl. (1) SCC 451, the Supreme Court set aside the order of the High Court whereby stay was granted for recovery of electricity dues on the ground the company was declared as sick company under Section 3 of the Sick Industrial Companies (Special Provisions) Act. 1985. It was held that such company was also liable to pay electricity dues.
In Foremost Industries (India) Ltd., Kailashpur, Dehradun Road. Saharanpur v. State of U. P. and others, Misc. Writ Petition No. 11220 of1996, this Court held that where the petitioner was carrying on business even after it has been declared as sick company but went on purchasing raw materials, i.e., milk etc., it was liable to pay cess amount which was levied on the milk used by the petitioner and can be recovered even by coercive process.
Learned counsel for the petitioners has placed reliance upon the decision Gram Panchayat and another v. Shree Vallabh Class Works Ltd. and others, AIR 1990 SC 1017, wherein it was held that the property tax due against village Panchayat cannot be recovered by coercive process under Section 129 of the Bombay Village Panchayat Act. it was not a case where the company was functioning and incurring further liabilities on account of its own action or omission after it was declared as sick.
The object of Section 22 of the Act is not that a company may continue to function and incur further liabilities by making purchases, consuming electricity and thereafter say that recovery proceedings cannot be taken against it except with the permission of the Board under Section 22 (1) of the Act. The petitioner was declared as a sick unit as early as on 26.2.1988. The recovery is for the period 1.10.1991 to 31.5.1996. Respondents are justified in making the demand for electricity charges due against the petitioners."
7. The submission of Sri Singh, that the decision of this Court was rendered in per curium and erroneous and, thus, requires reconsideration is devoid of any merit. Thus, we hold that prayer No. 1 cannot be allowed by us on account of the doctrine of res judicata. We further find that recently the Apex Court in Deputy Commercial Tax Officer and others v. Corromandal Pharmaceuticals and others, AIR 1997 SC 2027, had further reconsidered the decision relied upon by Mr. Singh in relation to recovery of sales tax dues of the period after the Industry had become sick and answered that the bar or embargo envisaged in Section 22 (1) of the Act can apply only to such of those dues reckoned or included in the Sanctioned Scheme and such amounts like Sales Tax etc., which the sick company is enabled to collect after the date of the Sanctioned Scheme legitimately belonging to Revenue, cannot be and could not have been intended to be covered within Section 22 of the Act.
8. In this context, we are of the view that even assuming that the earlier decision of this Court was incorrect, though it was not, even erroneous orders operate as res judicata, See Mohon Lal Goenka v. Benoy Kishna Mukherjee and others, AIR 1953 SC 65.
9. On their own case admittedly the petitioners never moved the Electrical Inspector for adjudication of their dispute. The petitioners must blame themselves. True it is that some objections were raised by the petitioners before the Electrical Engineer but that was hardly of any significance inasmuch as if the petitioners had any grievance in regard to the submission of the electrical bills, it was for them to move the Electrical Inspector as per the law. Sri Agarwal contended that it was not the case of the petitioners that there was any error in regard to the Meter reading and in that view of the matter the dispute ought to have been raised by the petitioners under clause 16 of the agreement for an Arbitration and not for raising a dispute before the Electrical Inspector. It is for the petitioners to consider this aspect of the matter and not for us to express any opinion.
10. As the outstanding bills were public demand within the meaning of the Act, the respondents in the peculiar facts and circumstances were left with no option but to take recourse to the recovery proceedings under the U. P. Zamindari Abolition and Land Reforms Act.
11. We also put on record yet another grievance of Sri Agarwal that even though civil suit was not maintainable, yet the petitioners filed a civil suit praying to grant an injunction. In this regard. Mr. Singh replied that injunction was granted for a day only and it was vacated. We must observe that it will be open for the respondents to file an application in that suit for dismissing it as not maintainable either under the provisions of Order VII, Rule 11 of the Code of Civil Procedure or as a preliminary issue under Order XIV of that Code and if such an application is filed, the same shall be considered and disposed of preferably within a period of 15 days from the date of its filing commanding the civil court to reject any unreasonable prayer for adjournment by the plaintiff and on their refusal to co-operate to proceed to decide that issue exparte.
12. A grievance was also made by Sri Singh that the directions contained in the court's order dated 25.7.1997 were blatantly violated inasmuch as the accounts of the petitioners were seized by the recovery authority which is apparent from the letter dated 30.7.1997 addressed to the petitioners by the Punjab National Bank, Paltan Bazar, Dehradun.
The interim order dated 25.7.1997 passed by this Court reads thus :
"On the undertaking given by Sri S. P. Singh, learned counsel for the petitioners in both the Writ Petition Nos. 21537/96 and 14434/97 to the effect that none of the petitioners or their directors or officers or employees shall sell, transfer or alienate any of the assets of the company or the Director or the employee, it is hereby directed that the attachment of the property of the petitioners' Mills as well as of the Directors or the employees may be completed but no further action concerning personal property or coercive measures against the petitioners shall be subject to the further orders of this Court. This order will be operative till 2.8.1997 unless vacated or modified earlier.
List/put up these three cases as first case in the supplementary cause list on 30.7.1997. Sri Sudhir Agarwal, learned counsel for the respondents, if so desire, may file counter affidavit also in above writ petitions within three days, so that a rejoinder affidavit is filed before the date of hearing."
The aforementioned order shows that on an undertaking given by the learned counsel for the petitioners, it was directed that the attachment of the property of the petitioner's Mills as well as of the Directors or the employee may be completed but no farther action concerning personal property or coercive measures against the petitioners shall be taken subject to the further orders of this Court.
What the authority did that it merely seized the accounts and no more.
13. Learned counsel for the petitioner also submitted that under the Act only immovable property can be attached and not movable property. This is a matter which the petitioners can raise before the relevant authority. If they raise this question, the same shall be considered and answered in accordance with law. In the larger interest of justice, we also clarify that the seizure of the accounts cannot be disproportionate to the amount which is sought to be recovered under the provisions of the U. P. Z. A. and L. R. Act.
14. At this stage of this order Sri Singh, the learned counsel for the petitioners take up a stand that he will advise the petitioners to deposit the amount stated in the bills along with interest, any, and recovery charges subject to adjudication of the Electrical Inspector and/or the Arbitrator, as the case may be, and in view of this fair stand of his some further appropriate orders be passed by this Court as the Industry is likely to be closed and its closure will bound to effect its workers.
We only need to observe in this regard that if the petitioners make an appropriate application in accordance with law along with the necessary deposits (the principal amount + interest, if any, accrued thereon + recovery charges) in that event the recovery proceedings will be dropped. The contemplated deposit. It goes without saying, shall be subject to the adjudication of the contemplated dispute by the Electrical inspector and/or the Arbitrator. It is further clarified that the petitioners shall be obliged to pay the subsequent and current Electrical bills, if they want to avoid the rigour of the law.
15. In the result, this writ petition is dismissed with the observations and directions made above but in view of the fair stand taken by Mr. Singh, though at the end, without cost.