M/s. K.Y.S. Manufacturers And Exporters (P) Ltd., A company registered under the provisions of v. 1. Jharkhand Bijli Vitran Nigam Limited through its Managing Dire
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 3887 of 2020 M/s. K.Y.S. Manufacturers And Exporters (P) Ltd., A company registered under the provisions of Indian Companies Act, having its Works at M-47 and 48, Phase-IV, Adityapur Industrial Area, Gamharia, P.O. and P.S. Gamharia, District Seraikella Kharsawan through its Director Sandeep Malhotra, aged about 55 years, son of Late Kulbhushan Rai Malhotra, resident of Circuit House Area, P.O. and P.S. Bistupur, Town Jamshedpur, District East Singhbhum. Petitioner … … Versus 1. Jharkhand Bijli Vitran Nigam Limited through its Managing Director, having its Head Office at Engineering Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi 2. General Manger-cum-Chief Engineer, Jharkhand Bijli Vitran Nigam Limited, Singhbhum Area, Cooperative Building at Bistupur, P.O. and P.S. Bistupur, Town Jamshedpur, District East Singhbhum 3. Electrical Superintending Engineer, Electric Supply Circle, Jamshedpur, Vikash Bhawan, P.O. and P.S. Adityapur, District Seraikella Kharsawan Electric 4. Electrical Executive Engineer (Commercial & Revenue), Supply Circle, Jamshedpur, Vikash Bhawan, P.O. and P.S. Adityapur, District Seraikella Kharsawan … … Respondents CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Resp.-JUVNL --- : Mr. Devashish Bharuka, Sr. Advocate Mr. Shankar Lal Agarwal, Advocate Ms. Ayushi, Advocate : Mr. Ashok Kr. Yadav, Advocate Mr. Ranjan Kumar, Advocate Mr. Sakla Hembram, EEE (C&R), JSR --- 18/6th March 2024 1. 2.
Legal Reasoning
Learned counsel for the parties are present. This writ petition has been filed for the following reliefs: - “for grant of appropriate writ/order/direction from the Hon’ble Court for quashing the Bill dated 9.11.2020 (Annexure-8) being the bill for the month of October 2020 wherein an amount of Rs. 4,56,64,812/- is kept in abeyance without any authority of law and liable to be refunded/adjusted with interest; And For issuance of appropriate writ/order/direction from this Hon’ble Court for issuance of show cause to the respondents asking them under which provision/order/direction an amount of Rs. 1,60,51,800/- was kept in abeyance in bill dated 9.8.2008 (Annexure-3) when the Court of Vidyut 2 Upbhokta Shikayat Niwaran Forum, Ranchi in its judgment dated 25.09.2007 passed in Case No. 18/07 had directed to issue the monthly bills on the basis of actual KVA recorded in the matter and further to adjust the excess money realized from the petitioner in the subsequent bills with interest; And For issuance of appropriate writ/order/direction from this Hon’ble Court for quashing the letter No. 1380/ESC/Jamshedpur, dated 16.6.21 (Annexure-15) (C&R) Jamshedpur (Respondent No. 4) whereby and whereunder a notice purportedly issued u/S 56/47 of Electricity Act, 2003 whereby a demand of Rs. 8,29,60,071/- has been made and in failure of the payment thereof supply of electricity shall be disconnected; issued by Electrical Executive Engineer And For issuance of an appropriate writ/order/direction from this Hon'ble Court for quashing the letter No.1000/ ESE/ Jamshedpur dated 26.4.23 (Annexure-16) along with revised provisional final bill whereby the respondents have demanded Rs.7, 49, 27, 967/- being the net amount payable by the petitioner as illegal, arbitrary and without jurisdiction as contained in Annexure- Any other relief (s) for which the petitioner may be found entitled, may be found entitled with.” And/or 3. The foundational background of the case is that the petitioner having Consumer No. 7028 HJAP144 Category-HT was having contract demand of 2900 KVA. The date of connection is 01.04.1998. The petitioner was granted electricity connection for 2700 KVA for running the induction furnace. Later on, from March 2006 and after sanction of petitioner’s license, the petitioner was granted 5100 KVA under category tariff No. 2003 effective from 01.01.2004 and the petitioner was to be billed on the basis of actual consumption of electricity recorded in meter and not on the basis of 100% contract demand but the petitioner was billed was billed on 100% of the contract demand from 01.01.2004. 4. In such circumstances, the petitioner filed a case before the Forum constituted under the Electricity Act, 2003 which was registered as Case No. 18/2007 and by a judgment dated 25.09.2007, it was held that the respondents are not entitled to bill the petitioner on the basis of 100% contract demand as KVA charges and consequently the bills impugned for the period from 01.01.2004 onwards in which KVA charges were raised on the basis of 100% contract demand were quashed and the respondents were directed to issue the monthly energy bills on the basis of actual KVA recorded in the meter and the respondents were further directed to adjust the excess money realized from the petitioner in the subsequent bills with interest as per the Supply Code 3 Regulations. It was indicated in the judgment that the judgment would be subject to the decision passed by the High Court in W.P. (C) No. 1687/2007. 5. Thereafter, the judgment of the Forum was challenged in appeal before the Electricity Ombudsman and it was registered as Case No. EOT/16/2007 which was dismissed vide judgment dated 28.02.2008, which in turn has been challenged in W.P. (C) No. 1837/2008. The similar matter arising out of the same issue is pending before the Hon’ble Supreme Court in S.L.P. No. 27764
Decision
of 2016 and consequently the writ petition being W.P. (C) No. 1837/2008 has been disposed of by this Court today itself by a separate order observing that the said case will be governed by the judgment to be passed by the Hon’ble Supreme Court in the aforesaid S.L.P. 6. The grievance of the petitioner which survives and is involved in this writ petition is that the respondents issued a bill dated 09.08.2008 for the month of July 2008 in which an amount of Rs. 1,60,51,800/- was kept in abeyance and it was not clear to the petitioner as to why the said amount was kept in abeyance and it was the understanding of the petitioner that this amount was refundable to the petitioner as per another judgment of the Forum against which the appeal was dismissed by the Ombudsman and the judgement has attained finality. 7. It is further the case of the petitioner in this writ petition that the petitioner was served with another bill dated 09.11.2020 wherein an amount of Rs. 7,82,83,328/- has been shown as arrears but no detail was furnished in connection with such arrear and an amount of Rs. 4,56,64,812/- was shown as amount kept in abeyance for which also there was no detail furnished. 8. The petitioner was also served with a letter dated 16.06.2021 which was a disconnection notice and an amount of Rs. 8,29,60,071/- was shown to be in arrears and the petitioner was to pay the amount excluding Rs. 4,56,64,812/- which was said to be kept in abeyance. The letter dated 16.06.2021 is quoted as under:- “Jharkhand Bijli Vitran Nigam Limited Electric Supply Circle, Jamshedpur, Vikash Bhawan, Adityapur - 831013 Letter No. 1380 /ESC, Jamshedpur Date 16/06/2021 To, M/S K.Y.S. Mfg. & Exporter(P) Ltd. 4 Con. No. HJAP144 4th Phase, Gamharia Sub:- 15 (Fifteen) Days Notice. Sir, This notice is being issued to you in accordance with the HT agreement/Sub-section - I of Section 56/Section 47 of Electricity Act' 2003. Your are requested to pay the following dues within period of 15 (Fifteen) days from the date of issue of this notice failing which your service line will be disconnected. Rs. 82960071.00 (Rupees Eight Crore Twenty Nine Lakh Sixty Thousand Seventy One) Only Excluding Rs. 45654812 Only as Kept in abeyance 1 2. 3. 4. Less the amount specifically stayed by Hon'ble Court, if any, subject to production of certified copy of Judgments to the revenue wing of the circle for any correction in the notice amount within the schedule of time allowed for payment. Yours faithfully, Electrical Executive Engineer(C&R), Jamshedpur.” 9. Still the grievance of the petitioner was that there was neither any break up in connection with dues nor any break in connection with the amount which was shown to be kept in abeyance. However, on account of non-payment of such bill, the electricity line of the petitioner was disconnected in the month of July 2021. 10. Another letter dated 26.04.2023 was issued revising the provisional bill to Rs. 7,49,27,967/- by enclosing a revised provisional final bill dated 26.04.2023. In the said revised provisional final bill certain remarks were made and certain amount was kept in abeyance. The letter dated 26.04.2023 is quoted as under:- “Jharkhand Bijli Vitran Nigam Limited (CIN: U40108JH2013SGC001702) Electric supply circle Jamshedpur Vikas Bhawan Adityapur, Dist-Saraikela Kharsawan, Pin-831013 T. No-0657-2371593, Fax No.-0657-2371367 Email :- [email protected] Letter No. 1.000 E.S.E, Jamshedpur Dated: 26/04//2073. To, M/S K.Y.S. Manufacturers & Exporters (P) Ltd., 4th Phase, Industrial Aren, Gamharia. Cons. No. HJAP-144 5 Sub:- Revised provisional final bill. Sir, With reference to the above, please find enclosed herewith the revised provisional final bill amounting to Rs. 7,49,27,967 /- (Rupees Seven Crore Forty Nine Lacs Twenty Seven Thousand Nine Hundred Sixty Seven) only and Rs. 2,500 /- as meter removal + disconnection charge, as per final reading and Nigam's meter and materials removal report dated 27.07.2021. This is for kind information and to deposit the above said amount in the office of the Assistant Electrical Engineer, Electric Supply Sub - Division, Adityapur - 2 & submit receipt to this office also. Encl: As above. Yours faithfully Sd/- (Deepak Kumar) Electrical Superintending Engineer” 11. The said bill indicated the provisional final bill was already served for an amount of Rs. 9,36,79,135/-; less excess unit charged for the period from June 2011 to August 2011 amounting to Rs. 39,85,9,12/-; less difference of contract demand (CD) and actual KVA with delayed payment surcharge (DPS) for the period from 08/2009 to 04/2010 amounting to Rs. 1,47,65,256/- and grand total was shown to be Rs. 7,49,27,967/- [ Rs. 9,36,79,135/- minus Rs. 39,85,912/- minus Rs. 1,47,65,256/-]. The said revised provisional final bill had certain remarks with regards to certain amounts and further certain amounts were shown to be kept in abeyance, which are quoted as under: - "Remarks: Provisional final bill Rs. 1,21,06,965/- served by this office letter no. 1160 dt. 06.05.2011 against theft of energy and FIR dated 04.05.2011. A sum of Rs. 60,50,000/- only paid on 29.08.2015 as per Hon’ble High Court dated 04.08.2015 in I.A. No. 3675 of 2015 with L.P.A. No. 350/2015 and L.P.A. is still pending before Hon’ble High Court. Amount Kept in Abeyance (A) Difference of KVA of Rs. 3,21,29,513/- is still pending before Hon’ble Supreme Court of India which will be payable by the company if the decision will be in favoour of JBVNL. (B) Difference due to reduction of CD (from 5100 KVA to 2700 KVA) amounting to Rs. 2,58,42,428/-.” 12. So far as the provisional final bill of Rs. 1,21,06,965/- is concerned, the same was said to be pending in L.P.A. No. 350/2015 and part payment was made in terms of order passed by this court and as reported the said L.P.A. is still pending before this Court. The parties have nothing to say, so far as this amount is concerned. 13. The bone of contention between the parties now is with respect to the two amounts shown as kept in abeyance as mentioned above. 6 14. This Court finds that on 13.10.2023 it was submitted by the learned counsel for the petitioner that an amount of Rs. 7, 9,27,967/- has been shown in the bill which has no basis at all; an amount of Rs. 2,58,42,428/-. has been shown as ‘kept in abeyance’ which is refundable to the petitioner with interest as it has not been refunded since 2011. It is submitted that another amount refundable to the petitioner has been shown in the bill which is Rs. 3,21,29,513/- but has been kept in abeyance. The respondents submitted that a supplementary affidavit was required to be filed clearly stating as to under which head the amount of Rs. 7,49,27,967/- has been shown in the bill and to bring on record if there is any previous bill raised in connection with the amount. A direction was also issued to the respondents to clarify their position with regard to the aforesaid amounts shown as ‘kept in abeyance’. 15. The order dated 13.10.2023 is quoted as under: - “1. Learned counsels for the parties are present. 2. Learned counsels for the parties submit that they shall jointly file their convenience compilation referring to the materials available on record, relevant provisions of law, and the judgments on which they seek to rely. 3. It has been submitted by the learned counsel for the petitioner that an amount of Rs. 7, 9,27,967/- has been shown in the bill which has no basis at all. Even from the counter-affidavit, it is not clear as to on what account this bill has been raised. 4. It is submitted that an amount of Rs. 2,58,42,428/-. has been shown as ‘kept in abeyance’ which is refundable to the petitioner with interest as it has not been refunded since 2011. It is submitted that another amount refundable to the petitioner has been shown in the bill which is Rs. 3,21,29,513/- but has been kept in abeyance. 5. The learned counsel further submits that the unit of the petitioner has an induction furnace that has gone out of production since 2021on account of disconnection of electricity and the petitioner is willing to start the unit but is not able to start due to disconnection of electricity. 6. Learned counsel appearing on behalf of the respondents has submitted that a supplementary affidavit is required to be filed clearly stating as to under which head the amount of Rs. 7,49,27,967/- has been shown in the bill on page 120 of the writ petition and to bring on record if there is any previous bill has been raised in connection with the amount. The learned counsel for the respondents is directed to clarify their position with regard to the aforesaid amounts shown as ‘kept in abeyance’ in the supplementary affidavit to be filed. 7. The supplementary affidavit be filed by 9th November 2023. 8. Post these matters on 24.11.2023.” 9. The grievance of the petitioner is reflected in the order dated 13.10.2023 and the petitioner claimed that the petitioner was clueless in connection with break-up of the huge amount which was shown as arrears and also as to why the claim of refund of the petitioner arising out of another case being Case No. 7 03/2015 wherein the petitioner was entitled to refund was also kept in abeyance although the order of refund had attained finality. 10. Pursuant to order dated 13.10.2023, a supplementary affidavit was filed, but that was not satisfactory and consequently order dated 01.12.2023 has been passed which is quoted as under: - “Learned counsel for the petitioner has submitted that though an affidavit has been filed under the order dated 13th October 2023, the same is not in terms of the said order. 2. Upon this, learned counsel for the respondents in W.P.(C) No. 3887 of 2020 has submitted that within a period of two weeks, he shall file the required affidavit in terms of the order dated 13th October 2023. 3. Let the required supplementary counter affidavit be filed on behalf of the respondents and in case the required affidavit is not filed in terms of the order dated 13th October 2023, no further time will be granted and the case will be decided based on the pleadings and materials available on record. 4. Post these matters on 12th January 2024 under the heading “Final Disposal”. 5. Parties are to file their respective written submissions, list of dates, and the judgments on which they seek to rely upon.” 11. Pursuant thereto, a supplementary counter affidavit has been filed and a written submissions has also been filed on affidavit annexing certain bills and break ups. 12. Mr. Sakla Hembram, EEE (C&R), JSR has appeared before this Court with the records and has been assisting the learned counsel for the respondents to explain the break up and details of the bills. 13. During the course of argument, it has been submitted by the learned counsel for the respondents on instruction from Mr. Sakla Hembram, EEE (C&R), JSR that the amount of Rs. 3,21,29,513/- which has been shown to be under the heading “kept in abeyance” in the revised provisional final bill dated 26.04.2023 has already been adjusted in the dues of the petitioner and the said amount has only been shown to be kept in abeyance so that the respondents can claim this amount subject to the result of the judgment to be passed by the Hon’ble Supreme Court. So far as the other amount of Rs. 2,58,42,428/- which relates to reduction of contract demand from 5100 KVA to 2700 KVA is concerned, the learned counsel for the respondents on instructions from Mr. Sakla Hembram, EEE (C&R), JSR submits that this particular amount has already been given 8 adjustment to the petitioner and no dispute in connection with this amount is pending. The learned counsel on instructions from the officer of the respondents submits that these two amounts have been adjusted with interest and the pending demand is only on account of pending energy bills. 14. This Court finds that certain bills have been annexed along with the written submissions filed by the respondents and the earliest bill which has been annexed by the respondents along with the written notes of argument is dated 09.09.2008 which also shows an arrear of Rs. 2,00,67,889/- and amount kept in abeyance as Rs.1,60,51,800/- the other bills annexed with the written notes of argument are dated 11.10.2008, 04.08.2009, 04.09.2009, 05.12.2016, 06.04.2015, 04.11.2010 10.02.2012 and 26.04.2023 which show different amount under the head 'arrears' and different amounts under the head 'kept in abeyance'. In the bill dated 10.02.2022 there are 'remarks' and 'amount kept in abeyance' as under: - “Remarks: Provisional final bill Rs. 1,21,06,965/- served by this office letter no. 1160 dt. 06.05.2011 against theft of energy and FIR dated 04.05.2011. A sum of Rs. 60,50,000/- only paid on 29.08.2015 as per Hon’ble High Court dated 04.08.2015 in I.A. No. 3675 of 2015 with L.P.A. No. 350/2015 and L.P.A. is still pending before Hon’ble High Court. Amount Kept in Abeyance (A) Difference of KVA of Rs. 3,21,29,513/- is still pending before Hon’ble Supreme Court of India which will be payable by the company if the decision will be in favoour of JBVNL. (B) Difference due to reduction of CD (from 5100 KVA to 2700 KVA) amounting to Rs. 2,58,42,428/-.” (C) Fuel Surcharge bill for the period 04/1998 to 12/2003 served by this office letter no. 2410 dated 01.10.2015 as per order passed by the Hon’ble Court Ranchi 06.05.2015 in W.P. (C) No. 3647/2005 and dated 08.05.2015 in CWJC No. 2758 of 2000 (R) Rs. 4,28,95,035/-.” 15. However, this Court is of the considered view that aforesaid bills are not sufficient to iron out the grievance of the petitioner regarding the break-up of the bills. The petitioner against whom bills of huge amounts have been raised from time to time with different figures of amount 'kept in abeyance' and amount of 'arrears' is not only entitled to break-up with regard to amount 'kept in abeyance' and amount of 'arrears' but is also entitled for calculation with respect to the 'delayed payment surcharge' raised and realized by the 9 respondents and also the calculation about the interest which the petitioner is entitled as refundable amount. 16. This Court is of the considered view that the matter regarding the bills and the claim and counter-claim of the parties arising out of bills is required to be reconciled and such reconciliation is possible only when both the parties sit together in the presence of one expert which could be a chartered accountant. This Court is aware that Jharkhand State Legal Services Authority (in short “JHALSA”) has chartered accountants in their panel who have been acting as mediators. 17. Accordingly, the petitioner as well as the respondents are to appear before the JHALSA so that a chartered accountant from the panel of mediators can be appointed only for the reconciliation of the bills/claims of both the parties. Both the parties shall produce the details regarding the bills as well as their respective calculation before the chartered accountant and upon exchange of such documents, if anything admissible is found payable by the petitioner, the parties shall take steps as per law. If any disputes still subsist then it will be open to the parties to approach the Vidyut Forum which is a forum constituted under the provision of the Electricity Act, 2003 for redressal of their grievances. 18. With the consent of the learned counsel for the parties, the parties shall appear before the JHALSA on 08.04.2024. Upon their appearance, the Secretary, JHALSA shall do the needful and appoint a chartered accountant from amongst the panel of mediators for reconciliation of the bills. The needful be done by the chartered accountant within a period of 15 days from the date of appearance of the petitioner. 19. This writ petition is accordingly disposed of with the aforesaid terms. 20. Pending I.A., if any, is closed. Mukul (Anubha Rawat Choudhary, J.)