D.G.R. Patnaik, J. - (1.) HEARD the learned Counsel for the parties.
(2.) THE petitioner, in this writ application, has prayed for the following reliefs: (i) For issuance of an appropriate writ for quashing the order dated -08.12.2000 (Annexure -21), passed by the Chairman, Bihar State Electricity Board, Patna, refusing to accept the petitioner's prayer as contained in its representation, which was filed pursuant to the order passed by this Court in C.W.J.C. No. 1615 of 1998 (R). (ii) For quashing the supplementary Bill of Rs. 7,78,886/ -, raised on the basis of the order dated -16.03.1998, passed by the Chairman, B.S.E.B. on the basis of the H.T. tariff though during the period, the petitioner was having, L.T. Connection only. (iii) For quashing the order dated -28.11.2001, by which a Committee constituted by the Chairman, B.S.E.B. has held that no executive revision of the order passed by the Chairman, B.S.E.B., is possible, (iv) For quashing the final bill for a sum of Rs. 12,13,881/ -, which basically includes the bill for the disconnection period between 14.02.1997 to 11.08.1998 and delayed payment surcharge levied thereupon, (v) For quashing the A.M.G. Bill for the years 1997 -98 and 1998 -99, which has been raised for the period when there was no electric connection. (vi) For issuing a direction upon the Respondents to release the amounts due to the petitioner. The facts of the petitioner's case in brief are as follows: The petitioner has set up its Factory in 1978 for manufacturing Insulated winding wires & conductors. The B.S.E.B. was one of the purchasers of the petitioner's products. Before setting up of the Factory, the petitioner entered into an Agreement with the Respondent -B.S.E.B. on 05.09.1977 for the L.T.I.S. connection having connected load of 90 H.P. The petitioner's unit started production on 01.02.1978. The petitioner entered into another Agreement with the Respondent -B.S.E.B. on 04.12.1980 with a load of 31 HP, totalling its load to 123 HP. On 01.07.1993, a new Tariff was introduced by the Bihar State Electricity Board under which the consumers having load of above 80 HP were to be billed in accordance with the H.T. Tariff. Prior to the introduction of the new Tariff, the petitioner by its letter dated -10.06.1983 (Annexure -1), requested the Respondent -B.S.E.B. to reduce its connected load from 92 HP to 75 HP. This was followed by another letter of request dated 08.09.1993 (Annexure -2), and again by another letter dated -25.11.1993 (Annexure -3). Almost one year later, by letter dated -08.09.1994 (Annexure -4), the Electrical Executive Engineer informed the petitioner that the petitioner is required to change the connection from LT to HT and calling upon the petitioner to execute an Agreement in the prescribed Format. Though the petitioner's request for reducing the load was not considered but in the light of the directions of the Electrical Executive Engineer, the petitioner vide its letter dated 22.02.1995 (Annexure -6), applied for 90 KVA load in H.T. Connection. In response, by letter dated -25.03.1995 (Annexure -7), the Respondent -B.S.E.B. informed the petitioner that the load of 90 K.V.A. was sanctioned. A copy of the H.T. Agreement (Annexure -8) was supplied to the petitioner on 14.05.1996 and the H.T. Agreement was executed by and between the petitioner and the B.S.E.B. on 18.07.1995. More than one year after the execution of the H.T. Agreement, the Respondents raised a bill dated -04.12.1996 (Annexure -9), demanding the petitioner to pay a sum of Rs. 18.84 Lakhs towards the H.T. Charges calculated from October, 1989 till the date of billing. The petitioner protested against raising of such an exorbitant bill amount denying its liability to pay the H.T. Charges from October, 1989 and had submitted several letters requesting the Respondents authorities to withdraw the Bill. In response to the petitioner's protest, the Respondent -B.S.E.B. had constituted a Committee to consider the bill in the light of the petitioner's objections and the Committee after examining the matter, had come to a conclusion that the bill as raised, was not proper. However, on the ground that the bill amount was not paid, the electricity connection to the petitioner's unit was disconnected on and from 14.02.1997. Being aggrieved, the petitioner moved this Court by filing a writ application vide C.W.J.C. No. 3542 of 1997 (R). By order dated -21.01.1998, the writ application was disposed of by this Court remanding the matter to the Respondent -Chairman of the Bihar State Electricity Board with a direction to decide the petitioner's representation by passing a speaking order within a period of one month. In compliance with the directions contained in the order, the Chairman, B.S.E.B. by his order dated -16.03.1998 (Annexure -13), recorded his decision on the petitioner's representation, inter alia, in the following manner: (a) The bill served under the H.T. tariff for the period October, 1989 to January, 1996 is not in accordance with the tariff provision as well as various judgments pronounced by the Hon'ble High Court. (b) The existing L.T. connection having load of 80 HP and above, the HT rates are applicable under Board's tariff effective from July, 1993. (c) The bill for the period after the lapse of two months notice period, i.e. December, 1994 to January, 1996 may be prepared under H.T. Rates. (d) To arrive at actual average consumption and maximum demand of the first full three consecutive months after installation of trivector meters may be taken. Accordingly revised bills may be served. (e) The demand bill of Rs. .21,86,885.85 also includes the dispute under C.W.J.C. No. 1093 of 1987 (R), which has to be recalculated in the light of the judgment. (f) The D.P.S. in such a case will be chargeable on the revised demand w.e.f. the date, when the original supplementary bill was issued. (g) The claim due to the petitioner, in respect of material supplied by the petitioner to the Board can be released after adjustment of the revised bill to be served in accordance with above decision. (h) Power supply to the consumer may be restored after completion of the above -mentioned conditions. Pursuant to the above decision of the Chairman, a fresh Bill dated -23.04.1998 (Annexure -14) for a reduced amount of Rs. 7,78,000 was issued. As per the decision, the bill amount was promptly adjusted against the amount payable by the Board to the petitioner in respect of the materials supplied by the petitioner to the Board. However, the electric connection to the petitioner's unit was restored, only on 19.02.1996. Thus, the electric connection to the petitioner's unit remained disconnected from 14.02.1997 till 11.08.1998. Being aggrieved and not satisfied with the revised bill of Rs. 7.78 Lakhs on the ground that the bill should not have included the A.M.G. Charges for the period December, 1994 to January, 1996, the petitioner filed another writ application vide C.W.J.C. No. 1615 of 1998 (R). Amongst the grounds raised by the petitioner against the disputed revised bill, the petitioner had also referred to the ratio decided by the Division Bench of the Patna High Court, Ranchi Bench in the case of M/s. Bharenagar Carbonisation WorJcs -versus -Bihar State Electricity Board and Ors., in which the 1993 Tariff was under challenge before the Court and in which the Court had observed that the Board can charge a consumer in accordance with the terms and conditions applicable to the H.T. Agreement, only after it has fulfilled all the conditions necessary to make the supply an H.T. Supply and till that is done, the consumer cannot be compelled to pay at a much higher rate without there being any change in the nature of supply so as to qualify as H.T. Supply. After considering the objections raised by the petitioner, this Court vide order passed in C.W.J.C. No. 1615 of 1998 (R) remanded the matter once again to the Chairman, B.S.E.B. with certain observations and directions. In compliance with the directions contained in the Court's order, the petitioner filed a fresh representation before the Chairman, alongwith his written notes of argument on 06.04.1999. In compliance with the directions of the Court, the Chairman, B.S.E.B., by the impugned order dated -08.12.2000 (Annexure -21), recorded his decision on the petitioner's representation in the following terms: (i) Under the facts and circumstances and the available records, I find that there is full justification on the part of the Board to raise the bills on the basis of H.T. rate of Tariff, 1993, during the period from December, 1994 to January, 1996. (ii) The supply line of the consumer was disconnected on 25.02.1997 on account of non -payment of the dues and remained disconnected till 10.08.1998. During this period, there was no notice served by the consumer either for determination or termination of the agreement and as such the agreement is deemed to be in force and in application during the period of disconnection, and accordingly, the demand of the A.M.G. during disconnected period is validly chargeable by the Board, (iii) The D.P.S. is a statutory provision and as such the same is liable to be charged. In the instant case, I find that DPS has been charged on the bills under H.T. rate of tariff for the period from December, 1994 to January, 1996, and on the amount of AMG charges for the period from 25.02.1997 to 11.08.1998. These two charges are basically the charges covered under the schedule of charge which has been rightly charged by the Board as the consumer did not pay the amount on the due date specified and as such, levying of D.P.S. on the aforesaid amount is fully justified and in conformity with the statutory provisions, (iv) This dispute is confined to adjustment of the energy bill of the Board against the bill of supply of material by the consumer petitioner to the Board, is an act of set off, permissible under the provisions of the Civil Procedure Code and there is no illegality in such adjustment of the amounts. However, if the petitioner is aggrieved with such act of adjustment by the Board, the petitioner may have liberty to seek other legal remedy as provided under law. Being aggrieved and dissatisfied with the decision of the Chairman, the petitioner filed a Review application before the Chairman on 08.02.2001 (Annexure -22). This was followed by a similar representation addressed by the petitioner to the Member (Technical), J.S.E.B. after the formation of the Jharkhand State Electricity Board and also to the Chairman, Jharkhand State Electricity Board. In response, the petitioner was informed by letter dated -28.11.2001 (Annexure -25), issued by the Secretary, Jharkhand State Electricity Board that no executive revision is possible. Ultimately, by its letter dated -29.01.2002 (Annexure -27), the petitioner requested the Jharkhand State Electricity Board to disconnect the electric supply to its unit and to raise the final bill. A representation with such request was also addressed by the petitioner to the Chairman of the J.S.E.B. On 18.04.2002 (Annexure -28). In response, the final bill dated 01.05.2002 (Annexure -29) was raised demanding a sum of Rs. 12.13 Lakhs from the petitioner. The petitioner protested against the bill as being highly inflated and illegal. Notwithstanding the protests, the Respondent -J.S.E.B. choose to recover the bill amount from the petitioner by getting a Certificate Proceeding initiated against the petitioner.
(3.) THE controversy involved in the dispute between the parties in the present writ application revolves around two main issues: (i) Whether the Board could have raised the differential Tariff of H.T. vis -a -vis L.T. tariff for the period December, 1994 to January, 1996 without the H.T. Line being actually supplied to the consumer? (ii) Whether the Electricity Board can realise the Annual Minimum Guarantee (A.M.G.) charges for the period from 14.02.1997 till 11.08.1998 during which the electric supply to the consumer had remained disconnected. A third question, which calls for answer is as to whether the Delayed Payment Surcharge (D.P.S.) could have been levied on the amount of differential Tariff for the period December, 1994 to January, 1996 and on the amount of the A.M.G. Charges levied for the period during which the electricity had remained disconnected.;