RONGON MUKHOPADHYAY, J. - (1.) HEARD Mr. M.L. Verma, learned senior counsel for the petitioner, Mr. Ajit Kumar, learned senior counsel for Respondent Nos. 1 to 4 and Mr. Sudarshan Srivastava, learned counsel for respondent no. 5. The present writ application has been filed by the petitioner with the following prayers: - a). For issuance of an appropriate writ or a writ in the nature of certiorari for quashing the Bill dated 10.06.2013 which is for a sum of Rs.2,72,03,25,445.72, which is allegedly a Bill which has been communicated vide letter no. 1583 dated 10.06.2013 by the Electrical Superintending Engineer ( Respondent no. 3), being a rectified bill as a result of the order passed by the Hon'ble High Court dated 02.05.2013 in CWJC No. 852 of 2000 ( R) and which also includes an amount of fuel surcharge for the period July, 1993 to August 1999 for a sum of Rs.5,92,84,086.72, though the said issue of fuel surcharge was not a subject matter of dispute in CWJC No. 852 of 2000 (R). b) For issuance of an appropriate writ (s), order(s) or Direction (s) or writ for a declaration that 1999 Induction Furnace Tariff is applicable from 06.04.2000 from the date on which it was published in the Gazette and continued till 6th May, 2001 in as much as in terms of letter dated 07.05.2001, the said tariff was extended by the Bihar State Electricity Board only to areas falling within the territorial jurisdiction of the State of Bihar and not the areas falling within the State of Jharkhand since the said extension of the tariff was never adopted by the Jharkhand State Electricity Board nor it was published in the official gazette of the State of Jharkhand and consequently from 07.05.2001 up till 31.12.2003 the erstwhile 1993 tariff of the Bihar State Electricity Board would be applicable. c) For issuance of an appropriate writ (s), order(s) or direction (s) for a direction upon the respondents to revise the impugned Bills in the manner as stated herein below and which is supported by the various Circulars, Tariffs as well as the judgments of this Hon'ble Court: i) The Bill on the basis of 1999 tariff schedule should be raised w.e.f. 06.04.2000 till 31.03.2002; ii) The bill for the month of April, 2000 has to be levied proportionately i.e. from 01.04.2000 till 05.04.2000, which should be levied on the 1993 tariff and subsequently on the basis of Induction Furnace Tariff. iii) Since the respondents have increased the contract demand from 10500 KVA to 19233 KVA w.e.f.16.04.2000 and consequently on account of increase in tariff, a new agreement has to be signed and, therefore, in terms of Clause 4(c) of the Agreement for the first 12 months, the demand charge has to be levied on the basis of what is recorded in the maximum demand indicated. iv) From January, 2004, the contract demand has to be treated as 10,500 KVA and 12,500 KVA from March, 2005 whereas, the respondents have treated contract demand of the petitioner to be 19,233 KVA on the basis of 1999 Induction Furnace Tariff, which was notified on 06.04.2000 in the Official Gazette. v) That from January, 2004 till April, 2010, whatever KVA, which has been recorded, has to be charged in terms of the Tariff order of 2004 and this issue is also fortified by a judgment of the Division Bench of this Hon'ble Court. vi) That from May, 2010, a contract demand has been treated to be 14,524 KVA , which is without any basis and the bills should have been on the basis of 12,500 KVA. vii) No delayed payment surcharge should have been levied because when the Bills itself are wrong and needs to be rectified/revised, there is no question of levying of delayed payment surcharge. The amount paid earlier by way of interim order passed in CWJC No. 852 of 2000 (R) has to be adjusted from the total demand. d) For issuance of an appropriate writ or a writ in the nature of certiorari for quashing the letter dated 22.06.2013, received by the petitioner on 24.06.2013, by which the Electrical Superintending Engineer has summarily dismissed the objections of the petitioner without any cogent reasons and false and frivolous assumptions.
(2.) THE fact, which emanates from the averments made in the writ application is that the petitioner (Tata Yodogawa Limited) is having a Roll Manufacturing Unit at Gamharia in the district of Saraikella, Kharsawan. The petitioner is involved in manufacturing of Rolls, for which Induction Furnaces are used merely in conjunction with other types of Furnaces for manufacturing the said Rolls and is also used as an intermediate process in the manufacturing of Rolls. The foundry of melting set up consists of Heat Treatment Furnaces, Mould Drying Ovens, Roll Casting Facilities. The Machine Shop comprises of several heavy duty machine tools like Lathes, Grinding Machines and Milling Machines. The petitioner company had acquired the technology for manufacturing of Rolls from Yodogawa Steel Works Ltd., Japan and the detailed equipments selections and facilities were done under the Foreign Technical Collaboration. The manufacturing of Rolls started in 1970 and the petitioner company claims to be a leading supplier of quality Rolls to all integrated steel plants and defence establishments in India and a sizeable production is also exported outside. Initially, the petitioner had entered into an agreement in the year 1968 with the Bihar State Electricity Board (hereinafter referred to as BSEB for the sake of brevity) with the contract demand of 12500 KVA. A fresh agreement was entered into by the petitioner and BSEB on 1.4.1979 , wherein the Contract Demand was reduced from 12500 KVA to 10500 KVA. The BSEB with the approval of the State Government came out with a tariff as contained in Tariff Notification No. COM/TAR/1010/1993 -430 dated 21.06.1993, which covered within its ambit all categories of consumers and also laid down the terms and conditions for supply of electricity to its consumers and which is commonly referred to as 1993 Tariff. Dispute arose between certain members of the Bihar Steel Manufacturers Association, who were basically manufacturers of ingots in their Induction Furnace and since allegations were levelled with respect to large scale theft of electricity, First Information Reports were instituted against those consumers and the electricity lines were also disconnected by the Board. To resolve the dispute, the members of the Bihar Steel Manufacturers Association held a meeting with the authorities of the Electricity Board, at which a consensus was arrived at for framing of tariff of such category of consumers, who were basically members of the said Association and consequent thereupon, the Secretary of BSEB issued a letter dated 24.09.1999, introducing a New Tariff Schedule for HT Consumers having Induction Furnace and the consumers of Induction Furnaces came within the purview of New Tariff Schedule with effect from 1.9.1999. The New Tariff Schedule of 1999 with respect to Induction Furnaces came to be known as High Tension Specified Services (HTSS) and it was made applicable to all consumers who were having a contract demand of 300 KVA and more for Induction Furnaces and the casting units having Induction Furnace of melting capacity of 500 K.G. or below were excluded. The New Tariff Schedule of 1999 was published in the gazette on 6.4.2000. The BSEB had raised bills upon the petitioner on the basis of 1999 Induction Tariff for the period January and February -2000 and the bills as well as the applicability of Induction Tariff was the subject matter of a writ application being CWJC No. 852 of 2000 R. The writ application was finally decided by this Court on 2.5.2013, in which it was held as follows: - "36.In these circumstances therefore and the reasons discussed herein -above, the sole question raised for determination in the instant writ application is answered against the petitioner. It is accordingly held that the tariff schedule notified by the Bihar State Electricity Board vide annexure -5 dated 24thth September 1999 and the Gazette Notification dated 15thth March 2000 is applicable to the petitioner Unit as well. Accordingly, the petitioner is liable to pay the electricity Bills raised on the basis of the said tariff. 37.For the reasons indicated herein -above, respondents would rectify the impugned Bills in question after carrying out necessary correction in the computation of the capacity of the induction furnaces of the petitioner based upon the measurement undertaken by it during physical inspection of the petitioner Unit within a period of six weeks. The petitioner would be liable to pay the outstanding Bills raised after rectification. It will also be liable to pay the delayed payment surcharge on the rectified Bill reckoned from 16thth March 2000 (Annexure -13) after adjustment of any amount deposited by it pursuant to the interim orders passed earlier till the same are paid. The petitioner cannot be absolved of the liability to pay delayed payment surcharge on the rectified Bill which is due to the respondents after the challenge to the applicability of the tariff to their Unit has failed. In view of what has been held herein above, the respondent Board would be entitled to raise electricity Bills against the petitioner for the remaining period thereafter on the basis of the instant tariff in question, till they are replaced by any subsequent tariff as notified by the Jharkhand State Electricity Regulatory Commission. 38.Therefore, the challenge to the applicability of the tariff to the petitioner Unit raised in the present writ application fails. However, the writ petition is disposed of with the aforesaid observations and directions."
(3.) PURSUANT to the judgment dated 2.5.2013, passed in CWJC No. 852 of 2000R, the Electrical Superintending Engineer issued a letter no. 1583 dated 10.06.2013, enclosing the rectified bills amounting to Rs.2720325445.72, which also included an amount of Rs.59284086.72 kept in abeyance raised against fuel surcharge for the periods 7/1993 to 08/1999. The petitioner had filed an application for review of the judgment dated 2.5.2013, passed in CWJC No. 852 of 2000 R, which was, however, dismissed on 17.07.2013 with an observation that in case the petitioner is aggrieved by any such bill raised thereafter pursuant to the judgment in question that may be a fresh cause of action for the petitioner but cannot be a ground for seeking review. Having been unsuccessful in the matter of review of the order dated 2.5.2013, passed in CWJC No. 852 of 2000 R, the petitioner has sought to challenge the bills raised vide letter dated 10.06.2013 in the present writ application. Mr. M.L. Verma, learned senior counsel for the petitioner, at the outset, has submitted that the issues with respect to the petitioner being a HTSS consumer as well as the issue of delayed payment surcharge , which have been decided in C.W.J.C. No. 852 of 2000 R are already the subject matter of an appeal and the said issues are being kept alive as and when the same is decided by this Court in LPA No. 217 of 2013. Learned senior counsel contends that the question on which amount the delayed payment surcharge has to be levied has to be decided as the respondents have whimsically calculated the electricity dues without considering the applicability of various tariffs for the various periods. The fountain head of raising the bills is the tariff but the Board has to first consider as to which tariff would apply to the petitioners and on what basis and for what period the said tariff would be made applicable.;