Letters Patent Appeal No. 342 of 2013 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.342 of 2013 In Civil Writ Jurisdiction Case No. 11238 of 2008 ====================================================== 1. Bihar State Electricity Board Having Its Office At Vidyut Bhawan Bailey Road, Patna Through Its Chairman 2. The Chairman Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna 3. The Chief Engineer (Commercial) Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna 4. The Electrical Executive Engineer Electric Supply Circle And Revenue, Patna Electric Supply Circle, Patna .... .... Appellant/s Versus 1. M/S Singhania Re-Rolling Mills Pvt. Ltd., A Company Incorporaated Under The Provisions Of Companies Act, 1956 Having Its Registered Office At Karmali Chak, Deedarganj, Patna City Through Its One Of Its Director, Sanjaay Kumar Singhania S/O Sri Devi Prasad Singhania, R/O Pushp Vihar, Flat No. B-413, Exhibition Road, P.S.- Gandhi Maidan In The Town And District Of Patna .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. S. D. Sanjay, Adv. For the Respondent/s : Mr. Vinay Kirti Singh, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 4 26-06-2013 The present Appeal arises from order dated 24.4.2012 permitting the respondent to deposit the balance amount due from the payment of Rs. 66,71,380/- within four weeks with interest at the rate of 6% per annum with effect from 1.8.2008. The petitioner, a rolling mill had its „secured meter‟ commissioned on 10.1.2008. It then made a voluntary declaration under Clause 11.4 of the Electricity Supply Code, 2 Patna High Court LPA No.342 of 2013 (4) dt.26-06-2013 2 / 10 2007 (hereinafter referred to as the „Code‟ ) that its meter was tampered and requested to raise the bill as per Annexure-7 of the Code and also sought replacement of the meter. Clause 11.4. of the Code reads as follows:- 11.4 Tampered Meters Voluntary Declaration of In case a consumer comes forward and voluntarily declares tempering of meter and/or seals: (a) The tampered meter shall be replaced with a new meter by the Licensee/consumer, as the case may be, immediately and the Licensee shall raise the assessment bill at normal tariff for the period of last 3 months for domestic and agriculture, and 6 months for all other consumers of declaration. reckoned from date (b) The energy bill, for the period the meter is not replaced, shall be sent as per the procedure for defective meters. (c) No case shall be lodged in case a consumer voluntarily declares the tampered meter and pays the requisite charges in time. (d) in payment, the procedure for booking the case of consumer shall be followed.” In case of default A bill in terms of Clause 11.4 of the Code was raised by the Appellants on 9.7.2008 for Rs. 66,71,380/- not disputed by the respondent. The due date for payment was 24.7.2008. The respondent by letter dated 24.7.2008 stated to have been received on 25.7.2008 requested for grant of 48 equal installments and then preferred C.W.J.C. No. 11238 of 2008 on 28.7.2008 from which the present Appeal arises. By an interim order dated 12.8.2008, after considering the submission on behalf of the respondent that the factory was 3
Facts
Patna High Court LPA No.342 of 2013 (4) dt.26-06-2013 3 / 10 closed on account of modernization and expansion leading to financial difficulties and after hearing the Appellants also it was directed that no coercive steps would be taken against the respondent subject to deposit of 25% of the bill amount by 13.8.2008 which is acknowledged to have been deposited. It was then submitted on behalf of the Appellants that the respondent had applied for installments before the Superintending Engineer who was not the competent authority and the Financial Controller (Revenue) alone was competent to grant the same. Liberty was granted to file such representation before the Financial Controller (Revenue). The respondent submitted a fresh representation dated 13.8.2008 asking for 24 monthly installments which the Financial Controller rejected on 27.10.2008 holding that Clause-11.4 required the bill to be paid in time. The Financial Controller held as follows:- It that the is very unfortunate “ consumer though involved in unauthorized use of electricity, and he made a declaration of his own that he has tampered the meter installed in its premises on one hand, where as on the other hand he has preferred to dispute and litigate the amount of the genuine bill raised on him of Rs. 66,71,380/-”. The Financial Controller opined that the Code does not empower the Board or its officers to grant installment facility to a consumer who has tampered the meter and made voluntary declaration under Clause 11.4 of the Code. The Appellants on 11.8.2008 had raised 4 Patna High Court LPA No.342 of 2013 (4) dt.26-06-2013 4 / 10 another bill for Rs. 1,28,60,266/- on account of failure to pay by the due date i.e. 24.7.2008 and also lodged a First Information Report against the respondent on 12.8.2008. The learned Single Judge after noticing the interim order dated 12.8.2008 and the deposit made of 25% observing that no material had been placed before him with regard to the disposal of the representation by the Financial Controller gave directions to deposit the balance amount due of Rs. 66,71,380/- within four weeks with interest at 6% per annum with effect from 1.8.2008. Under the Tariff Regulation, Delayed Payment Surcharge (D.P.S.) is to be levied at 1.5% per month from the original date until the payment is made to be calculated from 10 days grace period after the due date. Learned counsel for the Appellants submitted that the order of the Financial Controller dated 27.10.2008 has not been challenged by the respondent at any time. The Financial Controller held that he had no jurisdiction in the law to grant installments. The submission made on behalf of the Appellants as noticed in the interim order dated 12.8.2008 that the respondent may move the Financial Controller for grant of installments being beyond the statutory powers of the Board does not bind the Appellants. It was next submitted that under Clause 11.4 of the Code, grant of installments did not arise if the bill was not paid within the due date and criminal prosecution had been 5 Patna High Court LPA No.342 of 2013 (4) dt.26-06-2013 5 / 10 initiated. No request had been made thereafter for grant of installments. The order under Appeal is therefore bad to the extent that it directs payment of balance dues with 6% interest per annum contrary to the Tariff provision for 1.5 % per month. The Appellants had filed I.A. No. 5522 of 2008 on 10.9.2008 for modification of the interim order dated 12.8.2008. Counsel for the respondent submitted that the Board has issued a clarificatory circular bearing no. 33 dated 11.1.2012 in furtherance of its office order No. OSD(R)/INST/310/2003/4653/EB dated 24.12.2003. It provides for grant of installments to a consumer and contains no prohibition for the same with regard to claims arising under Clause 11.4 of the Code and on the contrary is widely worded. Apart from urging that the order of the Financial Controller dated 27.10.2008 was never communicated to it, it was urged that in view of the interim order dated 12.8.2008, passed after hearing the Appellant Board, the Financial Controller could not have declined jurisdiction especially after the directions of the Court. He was bound to decide the claim by either accepting it or rejecting it by a reasoned order. If the Financial Controller has declined jurisdiction, the question of the respondent challenging the order does not arise as it is
Legal Reasoning
prima facie in teeth of the directions of the Court. We have considered the respective submissions. The parties have not placed before us the circular dated 6 Patna High Court LPA No.342 of 2013 (4) dt.26-06-2013 6 / 10 24.12.2003. Since the later circular is in continuation we shall read it in continuity. Clause 2.1 to 2.3 of the circular dated 11.1.2012 read as follows:- “2.1 It has also been observed that in number of cases, Hon‟ble High Court, Patna has allowed payment of assessed/theft amount in installment to a consumer and ordered for restoration of supply line of electricity on payment of first installment amount by the consumer. to vide office
Decision
order power Board 2.2. You are aware that grant of installment facility to a consumer for payment of outstanding arrear has already been issued no. by dated OSD(R)/INST/310/2003/4653/EB grant 24.12.2003 wherein installment has been delegated to different categories of officers based on monetary limit and fulfillment of specified condition. On careful reading of Clause 10.13, Clause 11.1(e) of Bihar Electricity Supply Code, 2007 read with installment Policy of the Board, it is clear that installment payment allowed to a consumer for payment of assessed amount under Section 126 is an agreed and accepted mode of deposit or payment of assessed amount. 2.3 Therefore, in view of above, it is clarified that wherein action is taken for offence covered under Section 135 and the situation of alleged commitment of office is also covered under the provisions of Section 126 of the Electricity Act, the facility of installment or deposit of payment of the assessed amount under Section 126 shall be available to a consumer and payment of such installment may be granted by the competent authority of the Board, and on payment thereof, necessary action for restoration of supply line of electricity has to be initiated.” Section 126 of the Act deals with unauthorized use of electricity while Section 135 deals with theft of electricity. The circular dated 11.1.2012 has to be read and understood in its entirety and cannot be read and/or understood in a 7 Patna High Court LPA No.342 of 2013 (4) dt.26-06-2013 7 / 10 truncated manner. Clause 2.1 is couched in very wide language. It covers cases of assessment for unauthorized use of electricity. The definition is wide and shall take within its ambit both Section 126 of the Act and also cases under Clause 11.4 of the Code. The fact that the discovery may be made under the former by the Board and declared by the consumer under the later, cannot be sufficient justification for classification having no objective or nexus for differentiating to grant installments under the former and not under the later. Detection of unauthorised load by the Appellants is a far more serious matter than a consumer voluntarily making a declaration. Clause 11.4 of the Code does not contain any such restriction and there is no permissibility of installments stipulated under Section 126. The submission on behalf of the Board that the benefit for grant of installments can be made only in cases of assessment covered under Section 126 and not Clause 11.4 of the Code does not appeal to us. Section 135 of the Act is entirely different dealing with the theft of electricity The submission of the Board that the concession given on its behalf on 12.8.2008 before the Court was beyond the provisions of the Act, the Code and the instructions thereunder does not appeal to us and merits no consideration in view of the aforesaid discussion. It has been noticed above that the circular dated 24.12.2003/11.1.2012 provides for grant of 8 Patna High Court LPA No.342 of 2013 (4) dt.26-06-2013 8 / 10 installments for payment of the assessed amount. Once this Court granted liberty to represent for grant of installments and that too after hearing the Appellants, the Financial Controller was obliged to consider the grant of installment on merits. The only option available to him was to either grant the installments or to reject it by a reasoned order. He could not have abdicated jurisdiction overreaching the order and direction of the Court. If the Appellants were of the opinion that the order dated 12.8.2008 was contrary to the Act, Code and circulars, the Financial Controller (Revenue) could not have arrogated unto himself jurisdiction contrary to the order of the Court. The mere filing of an application for modification of the interim order on 10.9.2008 would not tantamount to modification. In a case, several applications are filed. Some of them are pressed, others are not. At times applications are filed more as a precautionary measure laying a foundation for further defence to be taken at a later stage if necessary. Nothing has been placed before us that the I.A. application was pressed by the respondent at any time. On the contrary, I.A. No. 1462 of 2012 was filed by the Appellants placing on record the order of the Financial Controller urging that I.A. No. 5522 of 2008 had already been filed for modification of the interim order dated 12.8.2008. That alone is sufficient to demonstrate that I.A. No. 5522 of 2008 was never pressed by the Appellants. No sooner that the Financial Controller passed 9 Patna High Court LPA No.342 of 2013 (4) dt.26-06-2013 9 / 10 order on 27.10.2008, I.A. No. 5522 of 2008 filed earlier for modification of the interim order became infructuous. The Act of the Financial Controller declining jurisdiction was not only in teeth of the directions of the Court but also if we may say so, in contumacious disobedience of the order of the Court. The Board cannot take shifting stands before the Court and before the authority when the matter is remanded to it. We now come to the order dated 27.10.2008 of the Financial Controller to consider whether it is even otherwise disclosing application of mind and is in consonance with the law. We have extracted above from the order of the Financial Controller. We are of the opinion that the Financial Controller has completely misdirected himself when he holds that the respondent indulged in unauthorized use of electricity and then has disputed the bill of Rs. 66,71,380/-. The representation of the respondent dated 13.8.2008 does not dispute the bill but only seeks grant of 24 installments. Furthermore, the circular dated 24.12.2003/11.1.2012 had been issued by the Board. The Financial Controller is presumed to be wholly aware of that circular whether it was cited before him or not. It was his sacred and solemn duty as a part of fairness in the decision making process to also consider whether the respondent having indulged in unauthorized user of electricity was entitled to grant of installments on the same after assessment. The Financial Controller refereed to the Code but completely omitted any 10 Patna High Court LPA No.342 of 2013 (4) dt.26-06-2013 10 / 10 reference to the own circular of the Board specific on the issue of installments for unauthorized user. In the circumstances, we are satisfied that it is the Board which delayed consideration by a wrong rejection of the request for installments directed to be considered by the Court. The Appellants therefore cannot take advantage of its own wrong to claim 1.5% interest per month as delayed payment surcharge and we find no reason in the facts and circumstances of the case to interfere with the order under Appeal directing interest at the rate of 6% per annum. The Appellant Board cannot be permitted to take advantage of its own wrong to claim more interest. We therefore find no reason to interfere with the order under Appeal. The Appeal is dismissed. (Navin Sinha, J) (Vikash Jain, J) P. Kumar/-