Patna High Court
Case Details
Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20367 of 2010 ====================================================== M/S Kalyanpur Cements Ltd., Company incorporated under the provisions of the Companies Act, 1956 having its registered office at 2/3, Clive Row, Kolkata, Central Office at Maurya Centre, 1, Fraser Road, Patna and its Factory at Banjari, District Rohtas through its President (Finance) & Company Secretary, P.K. Chaubey, S/o late Y.N. Chaubey, Resident of Road Noi.21, House No.120, Shree Krishna Nagar, P.S.Buddha Colony, District Patna ... Petitioner Versus 1. The Bihar State Electricity Board, Vidhyut Bhawan, Bailey Road, Patna through its Chairman 2. The General Manager-cum-Chief Engineer, Bihar State Electricity Board, Chandauti, Gaya 3. The Financial Controller (Revenue), Bihar State Electricity Board, Vidhyut Bhawan, Bailey Road, Patna 4. The Electrical Superintending Engineer, Bihar State Electricity Board, Transmission Circle, Dehri-on-Sone, Rohtas 5. The Accounts Officer, Transmission Circle, Dehri-on-Sone, Bihar State Electricity Board, Dehri-on-Sone, Rohtas .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Sashi Anugrah Narain, Sr. Advocate Mr. Rajeev Ranjan Prasad, Mr. Satyadarshi Sanjay, Mr.Rakesh Kumar Mr. Nilanjan Chatterjee, Advocate For the Respondent Board: Mr. Anand Kumar Ojha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 14 12-08-2013 The petitioner is a company incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of manufacture of cement at village Kalyanpur in the district of Rohtas, Bihar. Respondent no.1, namely the Bihar State Electricity Board is constituted under section 5 of the Electricity (Supply) Act, 1968. 2. I.A. No.2780 of 2012, I.A. No.3782 of 2012, I.A. Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 2 No.4133 of 2012 have been filed for adding of reliefs which mostly sought quashing of different bills raised since filing of writ application. I.A. No.4120 of 2012 has been filed for adding Union of India as party respondent. A supplementary affidavit dated 27.1.2011 was filed on 31.1.2011 bringing on record the notice dated 21.10.2010 (Annexure-35) by which the petitioner was directed to deposit the entire amount of Rs.20,96,43,295/- else the electric line would be severed. The petitioner also brought letter dated 6.12.2010 on record which is Annexure-36 by which it made a request for easy installments for payment of entire reconciled amount of Rs.13.65 crores together with unreconciled Delayed Payment Surcharge (In short ‘D.P.S.’) sum of Rs.6.27 crores under protest which was charged on the ground of delay of payment with effect from 1.4.2008. 3. The respondent Board has filed counter affidavit and has opposed the writ application. 4. The facts of the case in brief is as follows: The petitioner company is engaged in manufacture of cement. In the year 1987 the petitioner filed a detailed application and requisite Performa for modernization and expansion of its plant. In the meanwhile the Cement Industries were de- Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 3 licensed. The petitioner enhanced its productivity capacity to 10 lakhs per annum. The company’s net worth started eroding forcing it to approach the Board for Industrial and Financial Reconstruction (BIFR) in March, 2001. The BIFR declared the company sick on 28.5.2002 under section 17 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as ‘the SICA’) giving rise to BIFR Case No.155 of 2001. The energy Bills raised by the respondent Board were labelled by the petitioner as exorbitant and incorrect. 5. The Board as such constituted a High Powered Committee to decide the parameter within which disputes were to be resolved. The Committee in due course submitted its report to the Board. On receipt of the report, the Board constituted another committee known as ‘Second Committee’ to resolve the dispute with respect to bills of the petitioner company. The Second Committee after detail calculations and reconciliation of accounts, assessed the total liability of the petitioner company at Rs.38.19 crores on account of energy charges as well, A.M.G. and MMG amount. The letter of the Second Committee dated 22.9.2008 is annexed as Annexure-1. The Financial Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 4 Controller after vetting the calculations again referred the matter to the Second Committee for reconsiderations which vide its letter dated 6.4.2009 made a revised statement of accounts as per which the payable amount as on 31.3.2008 increased by Rs.60 lacs to Rs. 38,78,78,964.00. 6. In the year 2006, the government came out with Industrial Incentive Policy, 2006 (in short ‘I.P.,2006’) (Annexure-17 to I.A. No.2780 of 2012) providing for exemption from AMG/MMG/DPS charges with respect to five years period from the date of declaration of unit as sick unit. The petitioner sought deduction of Rs.27.10 crores against AMG/MMG/DPS charges from amount worked out by the Second Committee (Annexure-1 and 2) as it was declared a sick unit on 28.5.2002 by the BIFR. 7. A High Empowered Committee in its meeting dated 24.5.2010 held under the Chairmanship of Chief Secretary, Bihar in which the energy, Finance, Revenue Secretary also participated. The representative of the Board, namely its Chairman informed the Committee that the petitioner company is liable to pay a sum of Rs.13 crores (approx) on account of arrears of electricity charges under different heads uptill 31.3.2008. A copy of the minutes of meeting of
Legal Reasoning
Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 5 Apex Committee dated 24.5.2010 is at Annexure-5. However, the Board in its bill dated 5.6.2010 assessed the liability of the company at Rs.274.16 crores which was apparently wrong and was corrected vide subsequent bill contained in letter no.154 dated 28.6.2010 revising the figure to Rs. 40,74,84,737, which again included a sum of Rs.27.10 crores which amount the petitioner was claiming exemption under Industrial Incentive Policy, 2006 (in short I.P.,2006) 8. On 3.7.2010, the petitioner made an application for rectification of energy bill and issuance of a fresh bill for Rs.13 crores (approx) after exempting a sum of Rs.27.10 cores included against MMG Charge under Industrial Policy, 2006. A copy of representation is Annexure-8. On 5.7.2010, the Board issued another bill for a sum of Rs.68,28,2,588/-. The petitioner again represented for rectification of the bill and reminded that the total payable amount up to 31.3.2008 as arrived at by the Apex Committee was only Rs.13 crores which included DPS of Rs.1.96 Cores. The petitioner contended in its representation that the respondents in terms of I.P.2006 ought not to have included the AMG/MMG charge amounting to Rs.27.10 Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 6 crores nor should have levied any DPS much less a sum of Rs.19,99,30,640.00 under the said heading. 9. The Finance Controller-I in his letter no.1162 dated 16.7.2010 addressed to Superintending Engineer, Electricity Transmission Circle, Dehri-on-sone contained in Annexure- 18 clarified that a decision has been taken to exempt a sum of Rs.27,09,66,594.00(Rs.27.10 Crores approx) against AMG/MMG charge as industry was sick between 28.5.2002 to 27.5.2007. Still the Board on 5.8.2010 raised a bill this time for Rs.49.30 crores against which the petitioner filed its representation on 11.8.2010 The Board vide letter no.596 dated 21.10.2010 directed the petitioner to deposit the entire amount of Rs.20,96,43,295 within ten days, otherwise steps for disconnection of electric line would be undertaken (Annexure-35 to Supplementary affidavit, Page 66). The petitioner made a representation on 6.12.2010 with a request for grant of installation to avoid disconnection of line (Annexure-36 of Supplementary Affidavit, page 67), under protest. The respondent Board vide letter dated 27.12.2010 agreed to allow installments but limited the facility to only 36 equal monthly installments (Annexure-37 at page 68). The Board insisted for execution of agreement. The request Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 7 of the petitioner for inclusion of protest clause in the agreement was turned down as conditional agreement was not acceptable to Board. The agreement was signed on 5.2.2011 followed by another agreement on 3.11.2011 (Annexure-C/2 and C/3 to the counter affidavit). 10. Later on the State Government vide letter no.902 dated 20.7.2011 approved exemption of Rs.27 crores against MMG charge. A copy of letter dated 20.7.2011 of Special Secretary, Industries Department, Government of Bihar is annexed at Annexure-15 to I.A. No.2780 of 2012. I.A. No.2780 of 2012 was filed for addition of reliefs based on subsequent developments. The Director (Technical Development) Industry Department conveyed the said decision of Government to BIFR approving the reliefs and concessions made in letter dated 20.7.2011 (Annexure-15) vide its letter dated 21.10.2011 (Annexure-16). The BIFR vide its letter dated 21.10.2011 in the meantime sanctioned the Rehabilitation Scheme under section 18(4) read with section 19(3) of the SICA Act, the relevant part of which as regards BSEB reads as under: “The Bihar State Electricity Board (BSEB) to agree to redraw the bill so that the net balance due payable as per redrawn bill of Rs.13.5 crores will be paid by the company”. Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 8 A copy of letter dated 16.10.2011, copy of sanctioned Scheme with copy of the order dated 3.2.2012 of BIFR are annexed at Annexure-16 and 16/1. 11. The petitioner paid a sum of Rs.9,49,89,302.00 which included the entire DPS amount of Rs.6.27 crores (disputed) + 1.96 crores (admitted). According to the petitioner as per BIFR directives, a total sum of Rs.13.65 crores was to be paid over the period 2010-11 to 2013-14, out of which it has already paid Rs.9,49,89,302/- and a sum of Rsw.4.14 cores remains to be paid. The details is as follows: Financial year Amount payable (Rs. In lac) 205 2010-11 422 2011-12 422 2012-13 316 2013-14 1365 12. The petitioner based his claims mainly on the following grounds namely (i) the Bihar State Electricity Board cannot charge D.P.S. over the admitted amount of Rs.13.65 corers payable by the company without serving a correct bill and without giving due date for payment of the said amount; (ii) The Board cannot charge D.P.S. over exempted amount of Rs.27.09 crores under Industrial Policy which is payable by the government to the Board; (iii) the Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 9 Board cannot go back on its commitment or representation made before the BIFR wherein it is stated that the company’s liability was about Rs.13 cores. The scheme framed under Sick Industrial Companies Act has a statutory flavour and is arrived on the basis of consent of parties with an object of rehabilitation of a sick company and thus has a overriding effect in view of non-obstante clause under section 32 of the Act; (iv) the agreement dated 5.2.2010 contained in Annexure-C as well as agreement dated 3.11.2011 contained in Annexure-C/3 to the counter affidavit of the Board was not executed with free will and volition, as the petitioner had made written protest vide Annexure-36 and had also made a request for incorporation of the protest clause in the agreement. The petitioner’s case is that it succumbed in signing the agreement because of threat of electric disconnection. 13. In nutshell, the claim of the petitioner is founded on the ground that no D.P.S. can be charged without drawing a correct bill and without giving an opportunity to the consumer to pay the said bill within the grace period. According to the petitioner, the Board time and again has been raising incorrect and exorbitant bill against which it Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 10 has registered its protest. In order to resolve the dispute, the Board constituted an Expert Committee which was referred to as ‘Second Committee’ to examine the dispute with respect to raising of bills. The Committee vide its report dated 3.4.2009 worked out the amount due against the petitioner at Rs.38,78,78,964/- as on 31.3.2008 (Annexure- 2) which included a sum of Rs.27.10 crores against AMG/MMG charges to which the company was otherwise entitled for exemption in term of Industrial Incentive Policy, 2006 as it was declared sick on 28.5.2002. Had the Committee deducted the said amount which was liable to be exempted, the liability of the petitioner would come around Rs.13.65 crores. 14. The petitioner’s stand is that the amount payable by it reached finality for the first time on 24.5.2010 in the meeting of the Apex Committee held under the Chairmanship of Chief Secretary, Bihar in which the Chairman of the Board informed the Committee that the petitioner company was liable to pay the amount of Rs.13 crores (approx.) on account of electric charges agaisnt different heads (Annexure-5). 15. The petitioner states that for the first time after the Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 11 report of the Second Committee dated 3.4.2009 communicated vide letter dated 6.4.2009 (Annexure-2) and the report of the Apex Committee dated 24.5.2010, the electricity bill dated 5.6.2010 was served on the petitioner in which the payable figure was shown as Rs.274.16 cores (Annexure-6 and 6/A). The said bill was obviously a mistake and the respondents served another bill contained in letter no.154 dated 28.6.2010 revising the figure to Rs.40,74,84,737/- which included the arrears of energy charges as well as admitted delayed payment surcharge up to 31.3.2008 to the tune of Rs.1,96,05,773/- as well as AMG/MMG charge which ought to have been deducted from the bill. The petitioner contends that again if the energy charge of Rs.27.10 crores deducted as per clause 3.2(viii) of Industrial Policy, 2006 granting exemption of MMG charge to the sick industry from the date it was declared sick, the amount liable to be paid would be Rs.13.65 cores. The petitioner states that the said bill had the requisite due date and grace period for making payment of the amount as per clause 9.2 of Supply Code. 16. The petitioner contends that if the due amount shown in the bill is not paid within the grace period allowed in the Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 12 bill, the respondent Board could charge D.P.S. thereafter. The petitioner states that the first such bill was issued on 5.6.2010 which was a wrong bill and the Board pursuant to objection dated 3.7.2010 rectified it by bill dated 28.6.2010 which too was not a correct bill as it included AMG amount of Rs.27.10 crores, which ought to have been excluded being exempted under I.P. 2006. 17. On the other hand the Board contends that the petitioner company is a perennial defaulter since August, 1993 and has been always avoiding its liability to pay energy bill on one flimsy ground or the other. It has unnecessarily dragged the Board in various baseless litigations. The Board has also questioned the maintainability of the writ application as the company had entered into an agreement dated 5.2.2011 to pay the reconciled amount of Rs.13.65 crores along with D.P.S. of Rs.6.27 crores along with interest. The petitioner cannot go back on its agreement disputing its legality. The Board has its right and authority to levy D.P.S. and realize all outstanding dues notwithstanding any order of BIFR as it has sanction of law under the Electricity (Supply) Act, 2003. The consumer cannot claim exemption of charge under Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 13 AMG/MMG/DPS under Industrial Policy, 2006 prior to the date of its notification. The Board had calculated the bill as per the statutory provisions of the Tariff and the petitioner cannot take recourse to its own way of calculation and payment. The petitioner suppressed the Board’s letter no.596 dated 21.10.2010 and letter dated 6.12.2012 requesting for installments which has been brought on record by way of supplementary affidavit. According to Board, the writ application is liable to be dismissed on this count alone as the petitioner did not act honestly and fairly. Further more there is no legal sanction and basis for splitting up bill or billing in piecemeal. The HT Consumer is bound to pay D.P.S. under Tariff which has legislative force like Supply Code, 2007. Section 170 of the Electricity (Supply) Act, 2003 provides for recovery of penalty as arrears of land revenue. Section 168 states that no suit shall lie against the authority under the Act. The Board in the context has relied upon decisions reported in 2012 (2) SCC 108, 2011(2) SCC 1, 2010(5) SCC 23, A.I.R. 2001 SCW 733 and (2010) 11 SCC 90. 18. Before I deliberate on the issues raised by the parties, it would be necessary to notice the relevant Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 14 provisions of Electricity Laws. The Electricity (Supply) Act, 2003 was enacted to consolidate the law relating to generation, transmission, distribution, trading and use of electricity and for taking measures conducive for development of industries, rationalization of electricity tariff etc. Section 82 of the Electricity (Supply) Act, 2003 provides for constitution of State Commission to be known as Electricity Regulatory Commission (hereinafter referred to as ‘the Regulatory Commission’). One of the functions of the Commission is to determine the tariff for generation, supply and transmission of electricity, issuing license, waiving fees for different purposes under the Act. Section 181 authorizes State Commission to make regulations in respect of matters detailed therein. Section 50 vests authority with the State Commission to make Electric Supply Code to provide for recovery of electricity energy, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity etc. The Commission has authority under section 62 of the Act to determine tariffs in accordance with Act. 19. The Regulatory Commission in exercise of powers so Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 15 conferred made Electric Supply Code vide gazette notification dated 10.1.2008 read with corrigendum dated 24.4.2008. The Electricity Supply Code deals with general terms and conditions of supply of electricity. Chapter X of the Code, which would be relevant in the context deals with payment and disconnection. Clause 10.1 states that consumer would make payment of energy used by them as per the bill and the licensee would issue a proper receipt in token of having received the payment. Clause 10.8 provides that due date of payment for all consumers shall normally be 15 days from the date of issue of bill. In case the due date falls on public day the succeeding working day will be treated as due date. In case of non-receipt of bill as per clause 9.2, the consumer shall contact the bill issuing office and obtain a duplicate bill for payment. In case the licensee is not in a position to provide duplicate bill, the consumer shall pay on the basis of average bill amount of previous three consecutive bills. Clause 10.12 states that in case of default in payment of billed amount, the consumer would be liable to pay the D.P.S. on the amount outstanding at the rate approved by the Commission. Clause 10.13 talks about installment facility but with interest @ equal to D.P.S. with Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 16 possible rebate for timely payment. Clause 10.14 relates to disputed/erroneous bills which states that in case of a dispute the consumer may lodge a complaint with the Designated Officer. However, supply of electricity shall not be cut off if such person deposits under protest (i) the amount equal to the sum claimed from him (ii) if he pays electric charges on the basis of average charge for preceding six months. Clause 10.14(e) states that if investigation establishes that the original bill was correct, the consumer shall be intimated accordingly to pay the balance if any with D.P.S. as applicable within 7 days. 20. The Board at the outset raised the issue of maintainability of this writ application as the petitioner had subjected itself to agreement dated 5.2.2011 contained in Annexure-C to the Counter affidavit. As per agreement the petitioner has agreed to make payment of outstanding dues to the tune of Rs.13.65 crores up to 31.3.2008 with D.P.S. amount of Rs.6.27 crores totaling Rs.20,39,764,293.00 in installments as specified therein. According to the Board the petitioner cannot go back on the said agreement after having availed the advantage thereof. Furthermore, the petitioner have neither challenged the agreement nor brought the Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 17 notice threatening disconnection of electric supply in case of non-payment of Rs.20 crores. 21. The petitioner’s case is that the agreement was entered with not free volition as the Board had threatened to disconnect the electric connection. The petitioner’s request for inclusion of protest clause in agreement was turned down. A draft scheme based on consensus of the parties was already circulated by the BIFR in 2010. The petitioner under protest sought installment to save its plant in which it had heavy stake.
Decision
22. The issue is whether the writ petition can be dismissed at the threshold on the ground that the petitioner has submitted to the agreement to make payment of the reconciled amount of Rs.13.65 crores along with unconciled D.P.S. of Rs.6.27 crores. 23. While considering the issue one has to first take into account the circumstances under which the agreement was made. The Board vide its letter dated 21.10.2010 noticed the petitioner that in case a sum of Rs.20.96 crores approx. is not paid within prescribed period, electric line would be severed. As disconnection loomed large, petitioner pleaded for installment under protest vide letter dated 6.12.2010 Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 18 (Annexure-36) and the respondent Board only agreed to allow 36 installments and asked the petitioner to enter into an agreement. The petitioner asserts that request for inclusion of protest clause in agreement was not accepted. 24. It cannot be lost sight of the fact that the Board has monopoly in supply of electricity and the petitioner would have no corresponding bargaining capacity with the Board. Further more, the BIFR had circulated a draft scheme in 2010 to which the Board did not make any objection. In such circumstances, one cannot come to the conclusion beyond reasonable doubt that the agreement was entered with free volition. I may point out here, agreement or no agreement, the petitioner or any consumer would be still liable otherwise to pay the energy charges in accordance with tariff, regulations, Rules, Act or Code. As such, I am not convinced to hold the writ application not maintainable on this count. 25. This brings us to the next issue. The mainstay of the petitioner’s case is that the Board cannot charge D.P.S. over the admitted amount of Rs.13.65 crores payable by the company unless it serves a correct bill and without giving due date for payment of the said amount. Further more, the Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 19 Board is not entitled to charge D.P.S. over exempted amount of Rs.27.10 crores which is payable by the Government to the Board. The petitioner is claiming exemption of Rs.27.10 crores charged towards the A.M.G./M.M.G charges between 5.2.2002 to February, 2007 in view of Industrial Policy, 2006 on the ground that the said benefit is available to a unit from the date it has been declared sick. 26. The case of the Board is that the Industrial Policy came in the year 2006 and as such the petitioner cannot claim benefit under the said policy from an earlier date. Further more, the petitioner became entitled to the said amount only with effect from 3.2.2012 when the scheme was finalized by the BIFR. 27. I will take up the second issue first whether the petitioner was entitled to exemption of a sum of Rs.27.10 crores towards AMG/MMG for the period 5.2.2002 to 4.2.2007 in terms of I.P.2006 and whether the board was right in including the aforesaid sum in its bill raised from time to time. 28. There cannot be any dispute that the petitioner is entitled to exemption of AMG/MMG charge for five years, if it has been declared sick. The dispute is with respect to the Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 20 date of entitlement of this exemption. According to the Board, the exemption would be permissible from 3.2.2012, the date on which the BIFR finalized the scheme whereas according to the petitioner the exemption would date back w.e.f. 5.2.2002, the date on which the company was declared sick. On this basis, contention of the petitioner is that a sum of Rs.27.10 crores ought not to have been included in the bill, much less DPS on it while computing the accounts or making of bills. 29. The Government in the Department of Industries in order to provide incentive to industry has provided exemption from AMG/MMG charge for five years under Industrial Incentive Policy, 2006. Clause 3.2 (viii) of I.P. 2006 (Annexure-17, Page 114 of I.A. No.2870 of 2012) states that the benefits would accrue from the date, the industry was declared sick. Further more, in the meeting of High Empowered Committee headed by the Chief Secretary, Bihar, the Board’s representative too admitted that the company stands exempted from making payment of Rs.27.10 crores of total dues of Rs.40.75 crores standing on 31.3.2008, thus, leaving a sum of Rs.13 cores payable as on 31.3.2008.The relevant extract contained in clause 11(iv) is Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 21 quoted herein below: “11. (iv) dEiuh ij fcgkj jkT; fo|qr cksMZ dh nsunkjh gSA ;g nsunkjh fookfnr jgh gSA fcgkj jkT; fo|qr cksMZ ds izfrfuf/k us cryk;k fd fookfnr jkf”k dk feyku dj fy;k x;k gSA feyku ds ckn Hkqxrs; jkf”k 40-75 djksM+ :i;s r; dh x;h gSA bl jkf”k dh x.kuk fnukad 31-03-2008 dh gSA vkS|ksfxd izksRlkgu uhfr&2006 ds vUrxZr bl jkf”k esa ls ,0,e0th0@,e0,e0th0@Mh0ih0,l0 ds en ls feyusokyh NwV dh jkf”k ?kVkdj tks “ks’k jkf”k gksxh] ogh jkf”k dEiuh dks fcgkj jkT; fo|qr cksMZ dks Hkqxrku djuk gksxkA cSBd esa fcgkj jkT; fo|qr cksMZ ds izfrfuf/k us cryk;k fd ,0,e0th0@,e0,e0th0@Mh0ih0,l0 ds en esa dEiuh dks 27- 00 djksM+ :i;s dh jkf”k vkS|ksfxd izksRlkgu uhfr&2006 ds vUrxZr ns; gksxhA bl izdkj dEiuh dks yxHkx 13 djksM+ :i;s dk Hkqxrku djuk gksxkA” 30. The Industries department vide its letter dated 20.7.2011(Annexure-15, Page 27 of I.A.No.2780 of 2012) has conferred benefit under the Policy to an unit from the date it has been declared sick e.g. 5.2.2002. The Industries department once again vide its letter dated 21.10.2011(Annexure-16, Page 32 of I.A. No.2870 of 2012) addressed to the BIFR reiterated same stand. 31. The Board too acknowledged that the resolution of the Industries department granting exemption of Rs.27.10 crores was accepted by the BIFR in its scheme on 3.2.2012, the date on which scheme was finally sanctioned. If the State Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 22 Government decides to give such benefits and concessions in respect of AMG/MMG charge to the petitioner unit from the date it has been declared sick e.g. 5.2.2002 under its Industrial Incentive Policy as has been clarified in Annexures- 5, 15 and 16, it would not be open for the Board to take a contrary view that such benefit cannot be granted retrospectively. The Board can reclaim the amount from the Government which is committed to compensate the Board for any fiscal loss owing to its Industrial Policy. 32. Even the Finance Controller too vide his letter dated 16.7.2010 addressed to the Electrical Superintending Engineer, Electricity Distribution Circle, Dehri-on-sone stated that a decision has been taken to exempt a sum of Rs.27.10 crores (approx) in view of I.P.2006. Thus the petitioner would be liable to pay a sum of Rs.13.65 crore w.e.f. 31.3.2008. A copy of the letter dated 16.7.2010 of Finance Controller-I is quoted herein below for easy reference: “fcgkj jkT; fo|qr cksMZ] iVuk …jktLo foHkkx‰ i=kad vks0,l0Mh0…jsHk‰@,p0Vh0@500@2009 1162 iVuk] fnukad 16-07-10 izs’kd%& lsok esa] fo(cid:217)k fu;a=d&I fo|qr v/kh{k.k vfHk;ark fo|qr lapj.k vapy Msgjh&vkWu&lksu fo’k;% loZJh dY;k.kiqj lhesUV~l fyfeVsM] cutkjh dks la”kksf/kr foi= fuxZr Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 23 djus ds laca/k esaA lax (i) cksMZ dk i=kad 1059 fnukad 24-06-2010 (ii) vkidk Kkikad 154 fnukad 28-06-2010 egk”k;] d‘i;k cksMZ dk i=kad 1059 fnukad 24-06-2010 dk funs”k djsa ftlds vuqikyu esa vkids i=kad 154 fnukad 28-06-2010 ds ek/;e ls miHkksDrk dks fnukad 31-03-2008 rd ds cdk, jkf”k dqy :0 40]74]84]737-00 dk Hkqxrku djus gsrq fnukad 28-06-2010 dks foi= fuxZr fd;k x;k gSA mijksDr lanHkZ esa lwfpr djuk gS fd jkT; ljdkj ds vkS|ksfxd izksRlkgu uhfr 2006 ds vUrZxr bl miHkksDrk dks :Xu rd‰ dk vof/k ,0,e0th0@,e0,e0th0 ,oa Mh0ih0,l0 esa dqy :0 27]09]66]594-00 dk vkSicaf/kd NwV iznku djus dk fu.kZ; bl izR;k”kk esa fy;k x;k gS fd jkT; ljdkj }kjk bl jkf”k dh HkjikbZ dh tk;xhA 28-05-2002 ls 27-05-2007 …fnukad mDr ifjis{; esa lwfpr djuk gS fd cdk;s dh dqy jkf”k :0 40]74]84]737-00 esa ls mDr vkSicaf/kr NwV dh jkf”k :0 27]09]66]594- 00 dks LFkfxr j[krs gq, dqy :0 13]65]18]143-00 …fnukad 31-03-2008 rd cdk;k‰ dh ns;rk miHkksDrk ij curh gSA rnuqlkj miHkksDrk dks ,d la”kksf/kr foi= fuxZr fd;k tk;A mijksDr NwV iw.kZr% vkSicaf/kd gksxh ftls jkT; ljdkj }kjk izfriwfrZ ds ckn gh miHkksDrk ds [kkrk esa rnuqlkj ys[kkadu fd;k tk;xkA tcrd bldh izfriwfrZ jkT; ljdkj }kjk ugha gksrh gS rcrd ;g jkf”k miHkksDrk dks Hksts tkusokys izR;sd ekg ds foi= esa Kept in abeyance ds :i esa vafdr gksrk jgsxkA d‘i;k bls loksPp izkFkfedrk nh tk; rkfd cdk;s dh olwyh “kh?kzrk”kh?kz gks ldsA fo”oklHkktu] g0@& vLi’V …,l0,l0ih0 flag‰ fo(cid:217)k fu;a=d&I” 33. All these overwhelming documents unmistakably lead to the conclusion that the Government in the department of Industries exempted the petitioner from payment of AMG/MMG charge of Rs.27.10 crore approx. from the date the company was declared sick on 5.2.2002. The plea of the respondent Board that it would be applicable from 3.2.2012 Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 24 when the Scheme was finally sanctioned has no basis to stand and is rejected. 34. As the Board was not entitled to charge AMG/MMG amount of Rs.27.10 crore approx. under the bill, no DPS can be charged on it. The Board in its turn would be entitled to retrieve all such amount/charges from the State Government in terms of I.P. 2006, letters of Industries Department contained in Annexures 15, 16 and report of Apex Committee chaired by Chief Secretary in which Energy Secretary and Chairman of the Board had also participated. 35. This brings us to the next issue whether the petitioner would be liable to pay DPS on a sum of Rs.13.65 crores which includes the reconciled DPS amount of Rs.1.96 crores w.e.f. 31.3.2008. 36. The petitioner does not dispute the reconciled figure of Rs.13.65 crore arrived at by respondents as due on 31.3.2008. The dispute is whether the respondents are entitled to charge DPS on the said figure unless it serves a correct bill. According to the petitioner, the first bill with respect to dues outstanding between 1993 to 31.3.2008 was served vide bill dated 5.6.2010 for a sum of Rs.274.16 crore. The said bill had a due date of payment. As the said bill was Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 25 obviously wrong, the respondent Board served corrected bill vide letter no.154 dated 28.6.2010 revising and reducing drastically the figure by Rs.234 crores (approx) to Rs.40,74,84,737.00. The said figure was also not correct as it included a sum of Rs.27.10 crore as AMG/MMG charge which ought to have been exempted in view of clause 11(viii) of the Industrial Policy, 2006. The petitioner thus submits that as the bill dated 28.6.2010 too was not a correct bill, no DPS could be charged in terms of clause 10.2 of the Supply Code. On the other hand, the Board contended that the petitioner should have paid the bill in terms of the provisions of the Supply Code and then could have made an objection. The petitioner thus cannot escape liability to pay the DPS on the principal amount due w.e.f. 31.3.2008. 37. I have already held that in view of Industrial Policy (Annexure-17), letters of the Industries Department (Annexures-15 and 16) as well as decision of the High Empowered Committee chaired by the Chief Secretary (Annexure-5) and letter of Finance Controller-I of the Board dated 16.7.2010 (Annexure-18), the petitioner is entitled to exemption of Rs.27.10 crores towards AMG/MMG charge w.e.f. 5.2.2002, the date on which it was declared sick by Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 26 the BIFR. 38. Now coming back to the issue whether any DPS could be charged if a correct bill is not served on the petitioner. What would constitute a correct bill may at times differ from consumer to consumer. What may be a correct bill as per licensee may not be a correct bill in eyes of a consumer. The dispute or objection can be only resolved by adjudication on consideration of cases of both sides which may take time. Clause 10.14 which deals with the issue provides that in case the consumer disputes the bill, he may file a complaint before the Designated Officer. However, electric connection would not be severed if such person deposit under protest (i) the amount equal to sum claimed from him, (ii) if he pays electric charges on the basis of average charge for preceding six months. Clause 10.12 states that if there is default in payment of billed amount, the consumer would be liable to pay DPS on the outstanding amount. Similarly the converse would be also true that if subsequently it is found that the billed amount was not correct and in excess, then the respondent Board would refund the excess amount with similar rate of interest as chargeable in case of DPS. It may be pointed out here and is Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 27 mandate of law that in case a bill is disputed, the Board would be under obligation to accept the energy bill paid on average amount of preceding six months in terms of clause 10.14 of Supply Code and would not insist for payment of the billed amount. If the bill is ultimately found to be correct for the period in question, the consumer would be liable to DPS on unpaid amount. Thus, I am not in agreement with submission that merely because a consumer doubts a bill to be correct, no DPS will be levied if petitioner avoids to make payment. As consumer as per clause 10.14 of Electricity Supply Code, 2007 is under mandate of law to make payment as per average billing of preceding six months if it finds the bill to excessive. 39. In the instant case, I find that the controversy with respect to the dispute is period, preceding 31.3.2008. The Second Committee constituted to concile and settle the controversy under its letter dated 22.9.2008 assessed the due as on 31.3.2008 at Rs.38,18,76,119.00. However, the said Committee itself by its letter dated 6.4.2009 on the basis of verifications made by the Expert Committee revised the bill as Rs.38,78,78,964.00 on 31.3.2008. A copy of the said revised statement of accounts dated 6.4.2009 was sent to the Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 28 petitioner company as well. I find that the Apex Committee vide its deliberation dated 25.6.2010 headed by the Chief Secretary found that the liability as on 31.3.2008 was only Rs.13 crore as the representative of the Board informed that the company is entitled to exemption of Rs.27 crore towards AMG/MMG charge. Then ensued the regular bill dated 5.6.2010 obviously with wrong figure of Rs.274 cores which was corrected and revised on 28.6.2010 vide Annexure-7 to Rs.40.74 crores (approx). It is thus not in dispute that the total liability as existing on 31.3.2008 was Rs.13.65 crores which included the admitted DPS of Rs.1.96 crores. 40. On considerations of documents of respondents, it is evident that the principal amount due on 31.3.2008 was Rs.11.74 crore. The Second Committee constituted for settlement of bill vide memo no.541 dated 6.4.2009, in its revised statement of accounts (Annexure-2) fixed liability at Rs.38.78 crores (approx), which also wrongly included AMG/MMG charge of Rs.27.10 crores. If the said AMG/MMG charge is excluded, the liability would come to Rs.13.65 crores (approx.). The sum Rs.13.65 crores comprised of principle due of Rs.11.74 crore plus admitted D.P.S. to the tune of Rs.1.96 crore as on 31.3.2008. Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 29 41. According to the petitioner, the revised statement of accounts as arrived at by the Second Committee could not be constituted as bill as it was not a regular bill under section 10(12) of the Supply Code. The bill dated 5.6.2010 could be said to be the first bill but it contained a wrong figure of Rs.274 crores which was revised itself on 28.6.2010 to Rs.40.74 crores. The petitioner even contends that as subsequent revised bill dated 28.6.2010 was also not a correct bill, no DPS could be charged. 42. I would only disagree with the submissions made by the petitioner. Firstly, it would not be appropriate not to reckon the revised statement of accounts dated 6.4.2009 as a bill as the Committee was constituted to resolve the dispute regarding electric charge over last many years between the parties. It is true that the said revised statement of accounts did not contain due date for payment of bill. But this alone because of special circumstances in which the old dispute was trying to sorted would not be a ground for not payment of the amount shown in letter of Second Committee. The petitioner would definitely be entitled to a reasonable period for payment of long standing dues from the date of issuance of revised statement of accounts dated 6.4.2009 which could Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 30 be extended by a month or so. On expiry of such period in case of non-payment, the petitioner would be liable to pay DPS on the principal due. 43. Secondly, it is equally difficult to accept the submissions of the petitioner that one would not be liable to pay the bill unless a correct bill is served. Clause 10.14 of the Electric Supply Code states that in case the bill is disputed the electric line would not be disconnected, if the petitioner pays the billed amount or the average bill of preceding six months after lodging a complaint. However, the petitioner while disputing the bills did not make payment on the basis of average bill of preceding six months as stipulated under clause 10.2 of Supply Code, the unit would be liable to DPS on principal component of Rs.13.65 crore as per law, as it included admitted D.P.S. of Rs.1.96 crore as per revised statement of accounts dated 6.4.2009 after allowing a reasonable time e.g. 6.5.2009 or 30.5.2009 for payment of the bill. The respondents would make necessary calculation of DPS on the due as on 31.3.2008 from 6.5.2009 or 1.6.2009 minus any amount paid in the intervening period. The contention of the petitioner that it would not be liable to pay DPS on principal component of Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 31 Rs.13.65 crore as no correct bill was served, is rejected. 44. Now I come to the last issue whether provisions of ‘SICA’ and directives of BIFR constituted therein would have an overriding effect on the respondent Board and whether the order passed by the BIFR would bind the Board. The petitioner states that the BIFR formulated a draft rehabilitation scheme for its revival to which the Board was also a party. The said draft rehabilitation scheme was sanctioned by order dated 3.2.2012 to which all the parties gave their consent under section 19(2) of the Act. An extract from the order of BIFR is quoted herein below: “(f) The BSEB to agree to redraw the bill so that the net balance dues payable as per the redrawn bill of rs.10.43 crs will be paid by the company without interest as indicated in the fund flow and also to agree to provide exemption from Annual Min. Guarantee and Delayed Payment Surcharge for 5 yrs from the date of sickness as per Ind. Policy 06”. 45. The petitioner states that as the Board was a consenting party and did not raise any objection, it cannot now turn around to negate its effect. The petitioner states that ‘SICA’ is a special statute and comprehensive code to deal with all cases of rehabilitation and revival of a sick unit. The scheme framed under the provisions of ‘SICA’ has a Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 32 statutory flavour and as such will prevail over any other law and instrument in view of non-obstante clause contained in section 32 of SICA. The petitioner does not deny that Electricity Act is a special statute but on this score alone the scheme framed by BIFR would not loose its significance in respect of its implementation as long as the scheme is not in conflict with the Electricity Act, 2003. The respondent Board would come within the meaning of ‘any institution’ and other authority under section 19(1) of SICA. The petitioner further submits that the purpose of enactment of SICA is in public interest for revival of sick unit. 46. The petitioner states that the industry has more than 4500 workers and it paying Rs.100 crores approximately per annum on account of sales tax, excise duty, service tax and mining royalty. Any arbitrary decision on the part of the Board would not only lead to closure of such big industry but the State too would be a looser of crore of revenue per annum. 47. On the other hand, counsel for the Board submits that the provisions of ‘SICA’ would not have an over riding effect over Electricity Act, 2003 which is a later statute and a complete code unto itself. According to the Board, section Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 33 174 of the Electricity Act gives an overriding effect on all other Acts including SICA. He further submits that the provisions of SICA do not prohibit the Board from charging DPS on delayed payment. Furthermore, section 32 of the SICA is applicable to the constituent of the Scheme under section 19 of the SICA and not upon the Board which is neither Financer, nor loanee nor share holder nor creditor. The Board submits that section 18 would indicate that the scheme of rehabilitation includes all majors involving the financial institutions, State Government, Secured Creditors, Nationalised Bank and share holders who are necessary constituents in the rehabilitation. The Board further submits that the legal maxim UT RES MAGIS VALATE PEREAT provides for validating the legal provision and also Courts always validate the statute by upholding the force of statutory provision under which the Electricity Act, 2003 and the Supply Code provisions are to be validated, protected and reinforced in the public interest. Reference has been made to a decision of Hon’ble Apex Court, reported in A.I.R. 1990 SC 123. 48. As per Board, the sanctioned scheme of BIFR no where provides to exclude DPS payable by the consumer on Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 34 outstanding balance or to adjust the principle amount first from payment received. 49. I have heard counsel for the parties on the issue. The Hon’ble Apex Court in its various pronouncements has held that the scheme framed under SICA has a statutory flavour and thus in my considered view it will bind the parties which had concurred with the scheme or consented to it. 50. Section 32 of the ‘SICA’ also has an overriding effect. It states that any rule or scheme made there under shall have effect notwithstanding anything inconsistent there with contained in any other law except Foreign Exchange Regulation Act, 1973 and Urban Land (Ceiling Regulation) Act, 1976 or Memorandum or Article of Association or Memorandum and Article of Association of Industrial Company or any other instrument having effect by virtue of any law other than this Act. The Electricity Act, 2003 is a latter Act and is a complete code unto itself. Section 174 of the Electricity Act gives it an over riding effect over other laws. As the Electricity Act is a latter Act and too has an over riding effect over other Acts, the provisions or the scheme framed under the BIFR would not bind the Board unless and until it has concurred or had given consent to the Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 35 scheme. Both provisions requires harmonious construction and merely because the latter Act has a non-obstante clause, cannot mean that the earlier enactment which is a special statute too having non-obstante clause, would become totally redundant and be of no use. 51. The petitioner states that as per draft rehabilitation scheme BIFR, the total sum of Rs.13.65 crores was to be paid over the years 2010-11 to 2013-14 in the following manner: Financial year Amount payable (Rs. In lac) 2010-11 2011-12 2012-13 2013-14 205 422 422 316 1365 As per the petitioner it has already paid as per schedule a sum of Rs.9,49,89,302.00 up to May, 2012 and only a sum of Rs.4.14 crores remains as due which is to be paid by 2013-14. The petitioner states that as per direction of BIFR, no interest was to be charged on a sum of Rs.13.65 crores 52. The Board disputes that it has agreed to payment of Rs.13.65 crores without DPS on the principle component of the said amount. Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 36 53. The Board has refused to accept that it ever agreed to waiver of DPS on a sum of Rs.13.65 crores as on 31.3.2008 which included admitted DPS of Rs.1.96 crores whereas the order of BIFR shows that the Board agreed to redraw the bill without interest. 54. In view of such diametrically apposite stand taken by the parties, it would be difficult for the Court to go into the factual aspects. As such, I remit the matter to a Committee comprising of the Industrial Development Commissioner, the Energy Secretary and the Chairman of the Board in which representative of the petitioner would be a participant to examine the directives of BIFR vis-a-viz the stand of the Board. The parties would be bound by the stand they have professed before the BIFR. It is expected that the Committee would complete the work within three months from the date of the order. 55. In the facts and circumstances of the case, notwithstanding the remand of the matter for examining the directions of BIFR vis-a-viz stand of the Board, I issue the following directions: (i) As per the Board’s case the reconciled amount as on 31.3.2008 was Rs.13.65 crores which amount included admitted Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 37 D.P.S. of Rs.1.96 crores. The Board would issue fresh bill calculating D.P.S. charge w.e.f. 6.5.2009 or 1.6.2009 as for the first time the revised statement of account was issued on 8.4.2009 by the Second Committee constituted to resolve the dispute with respect to energy charge for the period preceding 31.3.2008. (ii) The respondents would not take into account a sum of Rs.27.10 crores exempted towards AMG/MMG charges much less DPS on it in view of the Industrial Policy, 2006 (Annexure- 17) as well as decisions of the High Empowered Committee chaired by the Chief Secretary (Annexure-5), resolution of Industries Department (Annexures-16 & 17), letter of Finance Controller-I dated 16.7.2010 (Annexure-18). (iii) The petitioner company would be entitled to adjustment of any amount paid either in view of agreement or Scheme of BIFR or even otherwise against DPS charge and Principal amount. (iv) In case the Committee affirms the stand of the Board that it has not consented for waiver of DPS before the BIFR, the directions, as above, would stand. (v) If the Committee accepts the stand of the petitioner company, the liability and payment schedule would be Patna High Court CWJC No.20367 of 2010 (14) dt.12-08-2013 38 accordingly redrawn and payment made earlier would be adjusted. 56. Before parting with the judgment, I would be failing, if I do not express my deep sense of appreciation to Mr. Sashi Anugrah Narain, Sr. Advocate for invaluable assistance rendered to the Court. I equally have good words for both Mr. Anand Kumar Ojha, learned counsel appearing for the Board as well as Mr. Rajiv Ranjan Prasad, learned counsel assisting Mr. Narain for their efforts and assistance. 57. With the aforesaid observations and directions, this writ application stands disposed of. (Samarendra Pratap Singh, J) Md.Jamaluddin Khan AFR