P.K.BALASUBRAMANYAN, J. - (1.) THE appellant is the petitioner in CWJC No. 3127 of 1994 on the file of this Court. The appellant is a consumer of electrical energy under the present Jharkhand State Electricity Board. For the period October 1991 to January 1992, the petitioner was billed a surcharge at 1% for fall of power factor as contemplated by Paragraph 16.6 of the 1991 tariff. The petitioner made a representation contending that he was not liable to be billed such an amount, though the petitioner paid the amount under protest. Since the representation made by the petitioner was not considered or disposed of by the then Bihar State Electricity Board, the petitioner filed CWJC No. 396 of 1994 before the High Court of Patna, at Ranchi. This Court directed that the representation be considered and disposed of by a speaking order and on merits within the time fixed by that judgment. Thereafter, the Electrical Superintending Engineer, Jamshedpur considered the representation of the petitioner and rejected the same by the order which accompanied Annexure - 9 communication sent to the petitioner. By that order, the claim of the petitioner was rejected and the imposition of surcharge at 1% for fall of power factor was upheld. Feeling aggrieved, the petitioner again approached this Court with the present writ petition challenging the decision of the Electrical Superintending Engineer and contending that it is entitled to a refund of that amount since the amount could not be charged for a period of six months from 20.9.1991, that is upto 19.3.1992. Admittedly, the recovery of surcharge here related to the period that fell within the two dates mentioned above.
(2.) THE learned Single Judge rejected the claim of the writ petition. He held that there was nothing in the tariff which suggested or went to show that during the six months period referred to by the writ petitioner, no shortfall in power factor below 0.85 can be calculated. He also held that the contention that the shortfall in power factor can be charged only after the installation of the shunt capacitor was not acceptable, since it was not so provided by the tariff. Thus, the learned Single Judge dismissed the writ petition, which is challenged by the writ petitioner in this appeal. We shall now read the relevant clauses in the 1991 tariff which is marked Annexure -1. Clause 16.6 deals with the power factor surcharge and installation of shunt capacitor. Sub -clauses (a), (b) and (f) read us under : - - 16.6. Power Factor Surcharge and Installation of Shunt Capacitor. "(a) No consumer shall allow the average power factor of the supply taken by him of fall below 0.85 in any month. In the event of the average power factor falling below 0.85 a surcharge at the rate of 1% for every fall of power factor of 0.01 will be leviable on the demand and energy charges including fuel surcharge in case of H.T. Service, Extra High Tension Service and Railway Traction Service. The fall in the power factor will be calculated on the basis of Trivector meter Kwh and KVA readings Formula P.F. KWH/KVAH. (b) Mo new connection above 3 HP shall be given unless shunt capacitors of appropriate rating are installed to the entire satisfaction of the Board. The consumer shall install shunt capacitor manufactured by the standard manufacturers and duly marked by ISI specifications. (f) For the existing consumers where the capacitors of adequate capacity in good and healthy condition have either been not installed or not being maintained, a period of six months shall be allowed to the consumers for installations of the same to the satisfaction of the Board, failing which they shall also be charged a surcharge @ 1% of the billed amount after the expiry of six months and shall continue to be charged till such time the consumers install the capacitors as stated above.
(3.) IT is not disputed by learned counsel for the appellant that a surcharge at 1% for every fall of power factor of 0,01 was leviable if the average power factor fell below 0,85. But his contention is that a locus penetentiae for six months is given to an existing consumer to install a capacitor of an adequate capacity in good and healthy condition, so as to enable him to rectify the fall in average power factor and, therefore, 1% surcharge referred to in Clause 16.6 (a) could not be imposed for the period of six months from the date of the tariff. Counsel relied upon Clause 16.6 (f) which provided for a surcharge at 1% of the billed amount on the existing consumer not changing his capacitor to one of an adequate capacity within a period of six months. Learned counsel for the Board met this argument by submitting that the two levies are different. The levy under Clause 16.6 (a) was one of imposition of surcharge @ 1% on the energy charges including the fuel surcharge in case of High Tension Service and extra High Tension Service and 1% surcharge referred to in Clause 16.6. (f) is a surcharge on the billed amount as different from the amount referred in Clause 16.6 (a) and the two contingencies contemplated by the tariffs are distinct and different. He therefore, submitted that the moment the existing consumer allowed the average power factor of the supply taken by him to fall below 0.85 in any month, he was liable for the surcharge referred to in Clause 16.6 (a) at 1% of the amount referred to in that provision. This had nothing to do with the obligation of an existing consumer to install an adequate capacitor so as to enable him to take the proper load and for installing the capacitor he has been given a locus penetentiae of six months. If during this six months, the existing consumer does not install a new capacitor of an adequate capacity, he was liable for yet another surcharge of 1% on the billed amount.;