- (1.) Heard learned counsel for the parties.
(2.) The present review application is directed against the order dated 2.5.2013 (modified vide order dated 7.5.2013) passed in C.W.J.C. No. 852 of 2000(R) and has been preferred by the writ petitioner. In the writ petition the petitioner had sought quashing of the tariff for the consumers of the induction furnace contained in the Electricity Board's internal communication dated 24.9.1999 (Annexure-5 to the writ petition) whereby a new tariff for consumers of induction furnace was levied w.e.f. 1.9.1999 and to implement the said tariff schedule for billing purpose for the consumer having induction furnace for the month of December 1999 onwards. As such it was prayed that the respondents cannot enforce such tariff schedule for induction furnace, consequently no bill can be raised on the basis thereof w.e.f. any date what so ever. Further prayer was made for a declaration that otherwise also the aforesaid tariff schedule for induction furnace contained in Annexure-5 to writ application prepared on the basis of consensus between electricity board and Bihar Steel Manufacturer Association is not applicable to the petitioner on the grounds taken therein. The petitioner had further prayed for quashing of the letter dated 30.9.1999 issued by the respondents directing it to execute a fresh agreement for induction furnace installed in its premises as also the letter dated 16.3.2000, whereby it was directed to segregate the load of the induction furnace from other loads. The provisional supplementary bill dated 16.3.2000 for Rs. 32,13,848/- for the month of January-February, 2000 raised on the basis of the aforesaid new tariff schedule of induction furnace was also challenged where under the Respondent- Board had fixed contract demand of the petitioner at 29.131 MVA as against actual contract demand of 10.5. M.V.A. On 24.4.2000, after hearing the counsel for the parties, and upon undertaking of the petitioner the following order was passed:- "Heard Mr. S.S. Ray, Sr. Counsel for the petitioner and Mr. V.R. Reddy Sr. Counsel for the Bihar State Electricity Board. A counter affidavit has been filed on behalf of the Bihar State Electricity Board and yet rejoinder is to be filed by the petitioner side. In the facts and circumstances of the case, limited questions have arisen for consideration as to whether powers under section 49 of the Electricity(Supply) Act, 1948 can be exercised by the Board unreasonably. At the same time a question has also arisen as to whether the decision taken by the Board to apply an uniform policy for raising the tariff on the basis of production as per capacity of the furnace of the petitioner and whether it can be applied in the facts and circumstances of the case without pre-determination of the question of load factor. Let this matter, therefore, be finally heard in the admission matter itself on 18.7.2000. List this case for admission on 18.7.2000, so that it may be disposed of at the admission stage itself. Mr. Ray, learned counsel for the petitioner has prayed for interim orders to the extent that new tariff may not be applied so far unit of the petitioner is concerned. The learned counsel for the Electricity Board, however, is not objecting to this as the mater is fixed for early disposal but submitted that for survival of the Board 50% of the demand should be paid by the petitioner and the petitioner should also pay a sum of Rs. 5,00,000/- per month onwards. However, learned counsel for the petitioner has agreed to pay a sum of Rs. 15,00,000/- as lump-sum towards demand raised by the Board and has also agreed to furnish bank guarantee of Rs. 15,00,000/- in the name of the Registrar, Patna High Court, Ranchi Bench:Ranchi without prejudice to the right and interest of the petitioner. On the basis of the undertaking given by the learned counsel for the petitioner, it is directed that new tariff shall not be enforced till the disposal of this writ application and there shall be no coercive steps pursuant to Annexures-13 and 13/1 of the writ application provided the petitioner pays a sum of Rs. 15,00,000/- to the Electricity Board within a period of 2 weeks from today and furnishes a Bank guarantee of Rs. 15,00,000/- in the name of the Registrar of this Bench within the same. However, it is made clear that the petitioner will have no grievance so far as 1993 Tariff is concerned". The matter was admitted thereafter, for hearing on 18.7.2000 and interim order dated 3.4.2000 passed earlier was continued. On 14.9.2007 the respondents raised the question relating to maintainability of the writ petition before learned Single Judge of this Court as the petitioner had sought quashing of the tariff which was subordinate legislation and according to the High Court Rules, the Division Bench has jurisdiction to hear these matters. On behalf of the petitioner it was submitted that the petitioner abandons the prayer under relief no. 1 whereby the petitioner had sought for quashing of the tariff. On the basis of the aforesaid submission following order was passed on 14.9.2007:- "Mr. V.P.Singh, learned Sr. counsel appearing on behalf of the J.S.E.B, raised a preliminary objection regarding the maintainability of these writ petitions before this Court. It has been submitted that the petitioners have sought for quashing the tariff which is a subordinate legislation and according to the High Court Rules, the Division Bench has jurisdiction to hear such matter. Dr. Devi Pal, Learned Sr. Counsel appearing on behalf of the petitioners, submitted that in fact the petitioners intend to challenge the letter dated 16.3.2000 as contained in Annexure-13 and also for declaration that the tariff scheduled for induction furnace as contained in Annnexure-5, which is meant exclusive for induction furnace units, is not applicable to the petitioners and as such he abandons the said prayer Relief no.1 whereby the petitioners have sought for quashing the tariff. In that case, Mr. V.P.Singh has got no objection. Accordingly, the petitioners are allowed to abandon their prayer as sought for in Relief No. 1. As jointly prayed for, put up both the cases on 21.9.07". Thereafter, the matter was finally heard on 11.4.2013 by this Court.
(3.) Learned Sr. Counsel Mr. N.K. Poddar who had appeared on behalf of the writ petitioner, at the outset very fairly and categorically submitted that the petitioner had initially challenged the vires of the tariff for the consumers of the induction furnace contained in the Board's internal communication dated 24.9.1999(Annexure-5) and the retrospective application of the said tariff w.e.f 1.9.1999 but the petitioner had abandoned the said prayer made in para 1(i) of the writ application as has also been recorded in the order dated 14.9.2007 passed in the said writ application. Learned Sr. counsel, therefore, confined himself to the sole question whether the tariff schedule communicated by the Bihar State Electricity Board(B.S.E.B.) vide Annexure-5 dated 24.9.1999 was applicable to the petitioner or not and consequently, whether the bills raised by Annexure-13 dated 16.3.2000 for a sum of Rs. 32,13,848/- for the month of January February, 2000 were fit to be quashed. It is relevant to point out herein that the gazette notification dated 15.3.2000 which apparently was published on 6.4.2000 was brought on record as Annexure-C to the counter affidavit filed by the respondent- Board . However, no challenge to the gazette notification dated 15.3.2000 notified on 6.4.2000 was made on behalf of the petitioner during the entire course of the proceeding of the writ petition. A mere perusal of the same would show that the terms of the instant tariff notification dated 6.4.2000 where in the same terms as that of the tariff schedule contained in letter dated 24.9.1999 (Annexure-5) to the writ application which had initially been challenged by the writ petitioner. However, as indicated earlier the writ petitioners had consciously abandoned its prayer no. 1.;