- (1.) BOTH the writ petitions involving similar questions are being disposed of by this common order.
(2.) PETITIONERS have prayed (i) for setting aside the energy bills from May 2005 onwards raised on the basis of 75% of their contract demand; (ii) to adjust / refund the excess amount realized with interest; & (iii) to revise the bills in terms of the existing tariff. The following submissions were made on behalf of the petitioners : After introduction of the Electricity Act, 2003 w.e.f. 10 -6 -2003, the duty to frame tariff was taken away from the licencee - respondent - Jharkhand State Electricity Board ("the Board", for short) and only the Jharkhand State Electricity Regulatory Commission ("JSERC", in short) is authorized to frame tariff schedule for the Board. JSERC has already framed tariff schedule of the Board after following the procedure provided for the same namely "Tariff O.2003 -04". There is no provision in the Tariff O.2003 -04 for billing on the basis of minimum 75% of the contract demand, but in utter disregard to the tariff, the Board has raised the impugned bills on the basis of 75% of the contract demand though, the demand recorded was less. It was also submitted that the matter is fully covered by the order / judgment dated 17 -4 -2009 passed in W.P.(C) No. 5150 of 2007 : (AIR 2009 (NOC) 2352) in the case of Jharkhand State Electricity Board v. M/s. Kumardhubi Steels Pvt. Ltd. against which Special Leave to Appeal (Civil No. 20104 of 2009) was also dismissed on 29 -9 -2009. The orders dated 7 -2 -2006 and 18 -12 -2006 passed by JSERC were also referred.
(3.) THE contentions of the respondent - Board is as follows: The impugned bills are completely in accordance with the Tariff O.2003 -04 issued by JSERC. The provisions contained in Clause 15.2 (a) of 1993 tariff, and clause 4(c) of the supply agreement whereunder the Board could charge demand charges on the basis of 75% of the contract demand or the actual consumption recorded, whichever is higher; is still in vogue, in absence of any contrary provision in the Tariff O.2003 -04 (The Repeal and Saving Clause contained in S.185(2) of the Electricity Act 2003 was referred). The Tariff O.2003 -04 does not say that the demand charge will be on the basis of actual demand recorded in the meter. The terms and conditions of supply are integral part of the tariff and in view of the word etc. occurring in Clause 1.4 of the terms and conditions of supply of Tariff O.2003 -04, the Board is justified in raising the impugned bills. The demand charge being a fixed charge is levied to meet, the fixed cost incurred by the Board in making supply of electricity to its consumers. (Different portions of the Tariff O.2003 -04 were referred to justify the impugned bills). The judgment of J.S.E.B. v. Kumardhubi Steels Pvt. Ltd. (supra) is not applicable in this case. If the demands in question are quashed the financial structure of Board will collapse as it has to make the electricity available for supply by purchasing it for different sources also. The judgments reported in 2003 (3) JLJR 38 (SC) : (AIR 2003 SC 2206) in the case of Nipha Steels Ltd. and Another v. West Bengal State Electricity Board and Others and AIR 1982 Bom 580 in the case of Mukund Iron and Steel Works Ltd. v. Maharashtra State Electricity Board and another, were relied.;