IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15096 of 2007 SHAKTI TUBES LIMITED, a company incorporated under the Companies Act, 1956 having its registered office at 401 Kashi Place, Dak Bungalow Road, Patna through one of its Directors, Sri Dilip Kumar Churiwal, son of Sri Bishwa Nath Churiwal, aged about 48 years, resident of Flat No.52, Kaveri Apartmentments, Bander Bagicha, in the town and District of Patna. . . . . Petitioner. Versus 1. THE BIHAR STATE ELECTRICITY BOARD, Vidyut Bhawan, Bailey Road, Patna through its Chairman. 2. The General Manager-cum-Chief Engineer, Tirhut Area Electricity Board, Muzaffarpur. 3. The Electrical Superintending Engineer, Muzaffarpur circle, Muzaffarpur. 4. The Electrical Executive Engineer (C & R), BSEB, R Block, Patna. 5. The Electrical Executive Engineer, BSEB, Hajipur, Dist. Vaishali. 6. The Assistant Electrical Engineer, Hajipur, Dist. Vaishali. . . . . . . Respondents. ----------- 13/ 08.02.2010 Heard learned counsel for the petitioner and the Board. The instant writ petition has been filed for issuance of direction to the respondent Bihar State Electricity Board to implement Clause (1) of the agreement / understanding arrived in meeting held on 21.12.2005 and for issuance of final and corrected bill to enable the petitioner to make payment of outstanding dues. The petitioner further prays to hold that he is not liable for AMG or any other charges on and from 30.10.2007, the date transformer stopped functioning. The petitioner is a Company, incorporated under the Companies Act, 1956 and has a factory at Industrial Area, Hajipur, being engaged in manufacturing of M.S. Black Pipes, G.I. Pipes. The case of the petitioner in short is also follows: The petitioner was granted HT connection for his factory for a contract demand of 200 KVA in the year 1987 by Bihar State Electricity Board (hereinafter referred to as B.S.E.B.). The petitioner installed a transformer of 350 KVA capacity, which was within the - 2 - then permissible limit of 175 % of the sanctioned load. In December, 1998, a team of officials of the BSEB inspected the transformer. After 15 months, on 23.03.2000, it was informed that capacity of the transformer was tested by expert of MIT, Muzaffarpur and found to be 600 KVA, which was in excess of the permissible limit. The petitioner has disputed the aforesaid determination of transformer’s capacity. The petitioner filed C.W.J.C. no. 9153 of 2000, in order to avoid litigation offering to replace the transformer within two months and the writ application was disposed of in aforesaid terms on 18.08.2005. The respondents did not provide the necessary shut-down to enable the replacement of transformer, as such the petitioner was not able to carry out the commitment before this Court. The petitioner made representations to the Board ventilating his grievance. Finally a meeting was held on 21.12.2005 with the officials of the Board. The petitioner states that as per the agreement / understanding, he was to make payment of year wise AMG and other charges on the basis of actual consumption in MDI, and for this purpose a bill would be issued. Further more, after verification of payment already made, petitioner would clear the dues. Further once the payment of outstanding dues has been cleared, efforts would be made for obtaining the Board’s decision on petitioner’s request for installing new transformer. A copy of agreement dated 21.12.2005 is annexed as Annexure-1. The case of the petitioner is that no final and correct bill was issued to him. However, statement of dues showing out standing sum - 3 - of Rs. 2,42,277.18 was issued vide letter dated 23.06.2006 of respondent no. 3. The petitioner vide his letter dated 29.07.2006 pointed certain anomalies in the bill and expressed willingness to pay the balance amount of Rs. 1,42,10.03 paise, which would have been the correct bill. However, no rectified bill was issued and in the mean time on 24.10.2007 the transformer suffered a short and stopped functioning. An intimation was given to respondent no. 2 on 30.10.2007 itself and 12.11.2007, copy of which are annexed as Annexures- 5 and 5/A. The petitioner states that thus, he would not be liable to pay AMG charges since 30.10.2007. The petitioner on 18.12.2007 filed an interlocutory application being I.A. No. 7068 of 2007 for amendment in the prayer for adding further relief for holding that letter no. 11.12.2007 annulling the agreement dated 21.12.2005 is bad and illegal. The petitioner has filed another interlocutory application being I.A. No 4200 of 2008 for staying the legal notice issued to the petitioner vide letter no. 2327 dated 28.06.2008 passed by Electrical Executive Engineer (Commercial and Revenue), Electric Circle, Muzaffarpur requiring the payment of dues of Rs. 34,93,300/- for the period from April, 2004 to 31.03.2008. He submits that the bill contains obvious arrear as would be apparent from the statement of dues, as contained in Annexure-3, relevant to April 2006 as compared with the bill dated 05.05.2006 raised for the same period. He submits that the bill dated 05.05.2006 suffers from other anomalies as well. The last bill dated 09.04.2008 - 4 - issued for the month of March, 2008 shows an exorbitant amount of Rs. 28,36,755/-. The petitioner has prepared a chart showing huge and arbitrary demands raised between April, 2006 to March, 2008 and the amounts admitted by him and duly paid. The Board has filed counter affidavit and controverted the claim of the petitioner. Learned counsel for Board submits that despite issuing of outstanding dues, the petitioner did not make the payment as per agreement / understanding in paragraph 1 of Annexure-1 dated 21.12.2005. In course of inspection, it was found that in place of installing transformer of the capacity of 350 KVA, the petitioner had installed a transformer of the capacity of 600 KVA. Further more, despite demand dated 18.08.2005 petitioner did not take any concrete step to replace the same. He further contended that there is no provision of charging of AMG units as per new tariff, which became effective from 11.01.2006. However, petitioner was liable to pay other charges as per the provisions of the tariff of the Board. Moreover the request for shut-down without submitting any requisite paper was only a camouflage. The petitioner failed to keep its commitment in terms of Clause (1) of agreement / understanding dated 21.12.2005 and as such the agreement was annulled on 11.12.2007. The Board submits that petitioner has not made payment of revised and correct bills. Heard counsel for the parties. The I.A. No. 7068 of 2007 for making amendment in the prayer challenging the letter dated 11.12.2007 issued by respondent no.2, as contained in Annexure-6, declaring the same to be arbitrary, illegal and unsustainable, is - 5 - allowed. In I.A. No. 4200 of 2008, the petitioner has prayed for staying the legal notice dated 28.06.2008 for starting a certificate proceeding. It would appear from order dated 18.08.2005 passed in C.W.J.C. No. 9153 of 2000 that petitioner sought two months time to replace the transformer in question. The petitioner in spite of assurance before this Court did not replace the transformer and tried to shift the blame on the board, which is not well founded. It would appear from the affidavit of the Board that the petitioner did not submit any papers of transformers to be installed. Further more, it would appear from Annexure-3 of the writ petition, which contains the statement of Bill as well as the affidavit of the Board that despite issuance of revised statement of bill and also subsequent bills, the petitioner did not make the payment as agreed in terms of Clause (1) of the agreement / understanding dated 21.12.2005, as contained in Annexure-1. The stand of the petitioner that Board ought to have issued bill instead of issuing statement of dues would not hold much substance. The objection of the petitioner that Annexure-3 would not be considered to be a compliance of Clause (1), Annexure-1 is too technical and stands on too thin an edge to be sustainable. The Annexure-3 forms the details of the dues over the period and would amount to substantial compliance of annexure-1. The petitioner having not paid the dues as raised vide Annexure-3, it did not comply clause (1) of the understanding / agreement, as contained in - 6 - Annexure-1. Thus no fault can be found with letter dated 11.12.2007 (Annexure-6) of respondent no.2, General Manager-cum-Chief Engineer, Tirhut Area Electricity Board, Muzaffarpur communicating the decision of the committee to nullify the agreement arrived at meeting dated 21.12.2005 (Annexure-1). It further appears that petitioner has also failed to clear the other bills raised by the Board. The petitioner submits that the Bills are faulty, whereas the stand of the Board is that the Bills are correct. As the issues of facts are in dispute, this Court is not inclined to stay the legal notice issued by respondent no.4 vide his letter dated 28.06.2008 purporting to initiate a certificate proceeding. However, it will be open to the petitioner to represent to the concerned respondents against the legal notice. In this view of the matter, I do not find any merit in this application and the same is dismissed, subject to observation made above. Uday/ (Samarendra Pratap Singh, J.)