Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No 1467 of 2013 ====================================================== M/S Singhania Re-Rolling Mills Pvt. Ltd., A Company Incorporated Under The Provisions Of Companies Act, 1956 Having Its Registered Office At Kamralichak, Deedarganj, Patna City Through One Of Its Directors, Sanjay Kumar Singhania S/O Shri Devi Prasad Singhania, R/O Flat No. C-4/A, B- Pushp Vihar Apartment, Exhibition Road, P.S.- Gandhi Maidan, Town & District- Patna .... .... Petitioner/s Versus 1. The Bihar State Electricity Board Having Its Office at Vidhyut Bhawan, Bailey Road, Patna through Its Chairman 2. The Chairman Bihar State Electricity Board, Vidhyut Bhawan, Bailey Road, Patna 3. The Financial Controller-Revenue Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna 4. The Chief Engineer (Commercial) Bihar State Electricity Board, Vidhyut Bhawan, Bailey Road, Patna 5. The Electrical Executive Engineer Electric Supply Circle & Revenue, Patna Electrical Circle, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr Suraj Samdarshi, Advocate For the Respondent/s : Mr Anand K Ojha, Advocate ====================================================== CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 5 02-12-2013 The petitioner has a Re-rolling Mill and falls within the tariff category HTS – I with a contract demand of 600 KVA. The Electricity Board came up with a scheme giving an amnesty to people who had interfered with their meter in any manner to come clean. This was also advertised by the Board in the newspaper as per Annexure 5. These provisions are also contained in Clause 11.4 of the Supply Code. It is provided that if
Legal Reasoning
Patna High Court CWJC No.1467 of 2013 (5) dt.02-12-2013 any consumer makes voluntary declaration thereunder being an 2 HT consumer, he would be billed for a period of six months without any punitive charges and without any fear of prosecution upon such declaration. The bill has to be paid in time. If the bill so raised is not paid in time, the amnesty shall stand withdrawn and prosecution and punitive bills will be raised. It may be clarified that as per the advertisement, it was mentioned that the bill would be raised according to Clause 11.4 and Annexure 7 of the Supply Code. Annexure 7 was the method of calculation of punitive bill which assumes 100% supply at all times and consumption accordingly. Petitioner having made a declaration, a bill as per Annexure 7 of the Supply Code was issued on 09.07.2008 showing due date of payment to be 24.07.2008. This bill was for a period of six months calculated as noted above in accordance with Annexure 7 of the Supply Code and was for an amount of Rs 66,71,380/- (Annexure 6). Petitioner requested the authorities that is General Manager –cum- Chief Engineer, Superintending Engineer and Executive Engineer for being permitted to make this payment in installments. When there was no response, on 28.07.2008, petitioner filed a writ petition in this Court being CWJC No 11238 of 2008 pointing out that authorities are adamant upon realizing the entire dues in one go in Patna High Court CWJC No.1467 of 2013 (5) dt.02-12-2013 a short time and if petitioner does not pay it, not only the 3 electricity would be disconnected but criminal case would be lodged against him. Petitioner sought time for making payment in installments. This writ petition was taken up for interim orders on 12.08.2008. Court noticed the submission of the petitioner that because of modernization and expansion of the factory, there was financial difficulty in paying the dues and installments were sought for. Interim order was passed that if by 13th August, 2008, 25% of billed amount is deposited, no coercive action would be taken against the petitioner. Upon submission of the learned counsel for the Board, it was pointed out that petitioner had wrongly made application for installments before Superintending Engineer. He should make it to Financial Controller who alone was competent to grant installments in the matter. Accordingly this Court, by the said interim order, gave liberty to file the representation before the Financial Controller (Revenue) within two days and directed him to consider the same. Counsel for the Board was directed to inform the situation on the next date. Petitioner, accordingly, represented to the Financial Controller praying for installments to pay the balance of the dues having 25%, as directed by the Court. The representation was filed on 13.08.2008. Let it be noted that at this time, no stand was taken Patna High Court CWJC No.1467 of 2013 (5) dt.02-12-2013 by the Board that the last date of payment having expired, the 4 Board was now raising a fresh punitive bill or the Board was to lodge first information report and more importantly, no stand was taken that the Board has no power to grant payment in installments. What happened thereafter does not appear to be known. The moment this interim order was passed on 12.08.2008, petitioner was served with a punitive bill. The bill is shown to have been issued on 11.08.2008, a day before the interim order. This time it is shown to be a punitive bill where the charges are for twice the number of units or in other words twice the rate chargeable. Thus, the initial demand of about Rs 66 lacs now doubles to Rs 1,28,00,000/-. When it came to grant of installments, the Financial Controller now takes a stand that he has no power to grant installment. He further holds that the bill was payable within the due date and not having been paid, petitioner has to face the consequence of a fresh punitive bill and other actions. The writ petition being pending, it was again taken up. When the writ petition came for final disposal, the said writ
Decision
petition being CWJC No 11238 of 2008 was disposed of directing the petitioner to pay balance of Rs 66,71,380/- after deducting amount already paid alongwith 6% interest with effect from 01.08.2008. Respondents were directed to take a decision in the Patna High Court CWJC No.1467 of 2013 (5) dt.02-12-2013 matter of grant of installments. Petitioner paid the balance amount 5 of about Rs 48 lacs, as directed by this Court. Again petitioner’s representation having been rejected by the Financial Controller (Revenue) by his order dated 19.10.2012, the present writ petition has been filed as the earlier writ petition had been disposed of and for balance of the amount alongwith component interest a bill of Rs 1,62,00,000/- has been served on the petitioner. The only question that is involved in the present writ petition is whether petitioner was entitled to grant of installments or not and whether the respondents could grant installments for payment of the bill aforesaid? Shri Anand K Ojha, learned counsel for the respondents submits that as per Clause 11.4 payment had to be made on due date. What is the due date is to be found in Chapter 10 of the Supply Code. Clause 10.1 obliges consumer to make payment of energy used as per bill. Clause 10.8 provides that due date for payment for all consumers shall normally be 15 days from the date of issue. As notice earlier, the bill which was issued originally to the petitioner on 09.07.2008 showing due date 24.07.2008. The question is can the consumer seek installments and the Board having authority to grant installment? The first clause to be seen is Clause 10.8 of the Supply Code itself which, Patna High Court CWJC No.1467 of 2013 (5) dt.02-12-2013 as noticed above, categorically states that consumer shall normally 6 pay the bill within 15 days. The word and expression normally predicate usually indicating discretion in the matter to the Board otherwise the expression would have been that the bill is due for payment within 15 days of issue. It contemplates the situation where installments can be granted. Thus, it is wrong on part of the respondents to say that they have no authority for granting installment in any situation. Board cannot state that under no condition it has never granted installments. In fact, one such punitive bill and agreement to pay in installment has been annexed in the writ petition itself as Annexure 9 in respect of another consumer. Thus, if one reads Clause 11.4 along with Clause 10.8, the discretion to extend time is there and such discretion even otherwise cannot be fettered. There is yet another reason for so holding. When interim orders were passed or when final orders were passed disposing of the writ petition, nowhere Board took stand that in view of Clause 11.4, there was no question of granting any installment because if that was the stand neither any interim order would have been passed nor any final order would have been passed protecting the petitioner. To the contrary, petitioner has brought on record circular of the Board itself showing that even in Patna High Court CWJC No.1467 of 2013 (5) dt.02-12-2013 cases of theft that is even in cases governed by Sections 126 and 7 135 of the Electricity Board, respondents have been given authority to grant installments of punitive bills. That circular itself refers to earlier circulars as well which was issued immediately after the new Electricity Act came into being in 2003. Thus, to say that respondents have absolutely no authority to grant installment, is neither correct nor can be accepted. Assuming for the time being that Clause 11.4 did not predicate grant of installment, it is well settled that a right in favour of a person can always be waived or modified by that person. That being so, the payment in time was to inure to the benefit of the respondents and that being so they have a right to reconsider the matter and grant installments. They could have themselves changed those situations. There is yet another circumstance. If the stand of the Board that they have absolutely no discretion in the matter which I have shown to be wrong is accepted then the day petitioner filed representation at the very first instance before filing the first writ petition praying for installment, it ought to have been rejected outright. It was neither rejected nor even this plea was made that no installment could be granted. To the contrary, Board’s own stand was that Financial Controller has the authority to grant Patna High Court CWJC No.1467 of 2013 (5) dt.02-12-2013 installment and petitioner should approach him. Thus, to say that 8 petitioner has, thus, violated the amnesty scheme and violated the provisions of Clause 11.4 and, therefore, is liable to pay punitive bill at one stage, cannot be sustained. Accordingly, the punitive bill submitted to the petitioner later on 12.12.2012, bill dated 11.08.2008, as contained in Annexures 11 and 15A respectively, are quashed. Petitioner would be liable to pay the bill first issued that is bill dated 09.07.2008 alongwith any delayed payment surcharge or any payment not made or delayed. As noted earlier, petitioner was directed to make 25% of the bill within one day and, thereafter, petitioner has already paid balance of Rs 48 lacs which was paid in May, 2012 pursuant to order of this Court. The interest component has not been indicated to the petitioner. If and when the same is indicated to the petitioner, petitioner would pay the same within a period of one month as directed in the earlier order of this Court in the earlier writ petition. The interest that the petitioner would liable to pay with effect from 01.08.2008 would be 6% simple interest upto the date when payment was made. Let it be noted that though this order has been passed by this Court on 24.04.2012 and we are in the end of 2013, Board has not yet calculated and indicated to the petitioner the interest component Patna High Court CWJC No.1467 of 2013 (5) dt.02-12-2013 pursuant to that order. 9 The writ petition, with aforesaid directions and observations, stands disposed of. M.E.H./- (Navaniti Prasad Singh, J)