High Court
Case Details
Civil Writ Jurisdiction Case No. 3005 of 1998 (R) ---- In the matter of an application under Article 226 of the Constitution of India. ---- Ranchi Cold Storage Ltd. ... … Petitioner -Versus- Bihar State Electricity Board & ors. ... Respondents For the Petitioner For the Respondents :M/s Biren Poddar, D. Poddar and P. Poddar :M/s Ajit Kumar and Saket Upadhyay. ---- ---- ---- PRESENT : HON’BLE MR. JUSTICE APARESH KUMAR SINGH
Legal Reasoning
Aparesh Kumar Singh,J. Heard counsel for the parties. The revised final bill dated 23rd September, 1998, Annexure-16, for Rs.6,81,042/- issued by the respondent no.4 , Electrical Executive Engineer, Ranchi Electrical Circle, Ranchi, upon the petitioner is under challenge. The petitioner has also raised a claim that an amount said to have been recovered as 3% additional surcharge has not been refunded to the petitioner despite judgment dated 9th May, 1986 passed in CWJC No.138 of 1978 (R) Annexure-12. A levy of Rs.12,263/- towards interest on security deposit payable by the Board @ 4% upto 31.03.1988 and 5% w.e.f. 01.04.1988 have not been given effect to in the final bill. The petitioner has also a grievance that the interest charged on non-deposit of additional security demanded by bill for August, 1995 totaling Rs.9,190/- has not been deducted. The partitioner has also challenged the component of fuel surcharge raised under Annexure 13/1, the bill dated 1.3.1997 for the period August,1995 till September,1996. However, the petitioner accepts that fuel surcharge for the period before August,1995 is payable by him. 2. In order to decide the aforesaid controversy, the brief facts of the case are being noticed herein-below. The petitioner is a High Tension consumer having HT Agreement executed in June,1983. By registered letter dated 16th June,1994, Annexure 2, he served a 12 months' notice under Clause 9(a) of the HT Agreement upon the Board for termination
Legal Reasoning
of the agreement. Though it is the contention of the petitioner that the said notice was received on 20th June,1994 but the petitioner accepts the stand of the respondent that the notice was received in the diary only in July,1994 and as such, the period of one year for termination of the agreement is to be treated by the end of July,1995. However, as a matter of fact, the electric connection of the petitioner continued till 26th September,1996 before it was disconnected by the authorities of the respondent-Board. The Bills, which have been raised for different period, are contained in Annexure 3 series as also the final revised bill is contained in Annexure 16. 3. It is the contention of the petitioner that in terms of Clause 9(a) of the HT Agreement in question, once the agreement stood terminated on expiry of one year period by 31st July,1995, the Board is not entitled to raise AMG bill for the period 1995-96, Annexure-5 totaling Rs.74,005/-, AMG bill for 1996-97 totaling Rs.2,10,158/- and AMG bill for 1997-98 totaling Rs.2.09,268/-. Even though he continued to consume electrical energy because of non-disconnection of the electrical connection by the respondents authorities beyond that period till 26th September,1996.All these AMG bills for the respective years as aforesaid were included in the final revised bill as contained in Annexure 16. Counsel for the petitioner submits that the aforesaid issue whether the electrical connection of High Tension consumer stood terminated on expiry of 12 months' notice or not is no longer res intengra in view of the judgment rendered by the Hon'ble Supreme Court in the case of Bihar State Electricity Board Vs. M/s Green Rubber Industries, reported in AIR 1990 SC 699 as also in a Single Bench judgment of the Patna High Court in the case of M/s Ashok Engineering (Bihar) Ltd. Vs. the Bihar State Electricity Board, reported in 1999(2) PLJR 334. 4. Clause 9(a) of the HT Agreement is being quoted herein-below: “9(a) The consumer shall not be at liberty to determine this agreement before the expiration of three years from the date of commencement of the supply of energy. The consumer may determine this agreement with effect from any date after the said period on giving to the Board not less than twelve calendar months' previous notice in writing in that behalf and upon the expiration of the period of such notice this agreement shall cease and determine without prejudice to any right which may then have accrued to the Board here under provided always that the consumer may at any time with the previous consent of the Board transfer and assign this agreement to any other person and upon subscription of such transfer, this agreement shall be binding on the transferee and Board and take effect in all respects as if the transferee had originally been a party hereto in place of the consumer who shall henceforth be discharged from all liabilities under or in respect thereof. “ 5. The issue raised in the instant writ petition need not engage this Court any longer as the same issue raised before the Hon'ble Patna High Court and the Hon'ble Supreme Court earlier has been settled. From perusal of the judgment in the case of M/s Ashok Engineering (Bihar) Ltd. Vs. the Bihar State Electricity Board, reported in 1999(2) PLJR 334 (Supra), it appears that in the said case also one of the issues was whether on service of 12 months' notice by the consumer, the agreement in question stood terminated or not. In the said case demands raised by the Board even beyond the period of 12 months' notice, were under challenge and after relying upon the aforesaid clause 9 of the HT Agreement the Hon'ble Patna High Court proceeded to quash the impugned bill leaving it upon the Board to make a fresh demand in accordance with law. The judgment rendered by the Hon'ble Supreme Court in the case of Bihar State Electricity Board Vs. M/s Green Rubber Industries, reported in AIR 1990 SC 699 (Supra), was in relation to the interpretation of the terms of HT Agreement and the Hon'ble Supreme Court upheld the validity of the agreement and held in the said case that the agreement in question would stand terminated on 12 months' expiry of the period after disconnection in terms of clause 9(b) of the said Agreement. In the said case, the electrical connection of the consumer had stood disconnected on non-payment of bills and the issue was whether the statutory period stood determined from the date of disconnection or if it has come to an end after expiry of 12 months' period from the date of disconnection. In the said case admittedly the consumer had made no communication of 12 months' notice as per clause 9(a) of the HT Agreement for conveying its intention to determine the agreement in question on expiry of the 12 months' notice period. 6. In the instant case, it is not in dispute, as would appear from the
Decision
pleadings of the writ petition including the stand of the respondents that the petitioner had served a notice on 16th June,1994 for determination of HT Agreement. Annexure 7 is a letter dated 16th August,1996 issued by the Electrical Superintending Engineer to that effect that the notice period stood completed in July,1995. 7. Counsel for the petitioner has contended that after expiry of the statutory period, the petitioner was not at fault if the respondents did not disconnect the electrical connection of the consumer. In any case, the consumer was only liable to pay the energy charges as per the unit consumed by it and not for AMG Charges thereafter as the period of notice of 12 months had already expired by the end of July,1995. It is also contended by the petitioner that as a matter of fact also he did not consume any electrical energy within the AMG thereafter. 8. Under these circumstances, therefore, the raising of the AMG bill for the period 1995-96 after July,1995 and also the AMG bills of 1996-97 and 1997-98 do not appear to be inconsonance with the terms of the agreement entered into between the parties as also the judgment on that issue as laid down by the Hon'ble Patna High Court and the Hon'ble Supreme Court referred to Supra. The impugned bills containing AMG charges for the said period, therefore, cannot be sustained in law as well as on fact. However, so far as the claim for adjustment of the amount of 3% additional surcharge said to have been realised from the petitioner is concerned and has been not refunded in spite of the judgment dated 9th May,1986 passed in CWJC No.138 of 1998(R), the issue appears to be stale and the petitioner could have pursued his remedy if the judgment in the said case was not given effect. At this stage, this Court does not intend to go into the said question for the period prior to 1978. 9. Since the agreement is held to be terminated on expiry of statutory 12 months' period from the end of July,1995, the respondents were also not entitled to charge interest on the additional security demand after August,1995. Therefore, the component of Rs.9,190/- said to be charged on account of interest for non-deposit of additional security against the bill as contained in Annexure 10 is also not sustainable in law as well as on fact. So far as the claim of the petitioner for interest on security deposit payable by the Board for the period upto 31st March,1988 and thereafter w.e.f. Ist April,1988 is concerned, the respondents should consider the same in accordance with the Notification of the Bihar State Electricity Board, which was prevalent at the relevant point of time. 10. In these circumstances, therefore, the impugned bills are quashed. However, it would be open to the respondent-Board to raise any such bill after taking into account what has been held herein-above that the petitioner is not liable to pay the AMG charges for the period 1995-96, 1996-97 and 1997-98 as shown in the impugned revised bill. The respondents should also not be entitled to raise fuel surcharge for the period post August,1995 since the agreement stood terminated by July,1995, as held hereinabove. It is submitted by the petitioner that since the impugned bill itself has been quashed, there is no reason to prosecute the certificate proceeding, which is pending against the petitioner being Certificate Case No.191/98-99. Accordingly, for the grounds indicated herein-above, there is no reason that the certificate case, in which the impugned bills have been raised, should be prosecuted. Accordingly, the impugned certificate proceeding is also quashed. However, in case any fresh bill is issued upon the petitioner in accordance with law, hereinafter, and if the petitioner fails to pay the same, it will be open to the respondents to realise the same in accordance with law. 11. This writ petition is allowed in the aforesaid terms. Jharkhand High Court,Ranchi, The 14th February,2013 Pandey (Aparesh Kumar Singh, J. )