IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10139 of 2008 M/S J.M.D.ALLOYS LIMITED Versus THE BIHAR STATE ELECTRICITY BO ----------- For the petitioner: Mr. Y.V. Giri Senior Advocate Mr. Raju Giri,Advocate Mr. Vikas Ratan Bharti,Advocatge For the Respondents: Mr. Chitranjan Sinha Senior Advocate Mr. Vinay Kirti Singh,Advocate ---- 6. 4.9.2008 Heard Mr. Y.V. Giri, learned Senior Counsel for the petitioner and Mr. Chitranjan Sinha, learned Senior Counsel for the Bihar State Electricity Board. The petitioner has approached this Court for quashing the revised punitive bill dated 16.6.2008 ( Annexure-8) raised by the Bihar State Electricity Board, by which the petitioner has been asked to make payment of Rs. 1,74,79.090/- and for further direction to raise a fresh energy bill for the period from 3.4.2008 to 24.4.2008 in terms of Clause 9.16 of the Bihar Electricity Supply Code, 2007 and although denying the tampering or theft but in the event the said plea is not accepted then for a direction to correct the impugned punitive bill for 32 days instead of 100 days and also to declare the agreement dated 14.5.2008 entered into between the petitioner and the Electricity Board for payment of punitive bill in instalments as void under Section 23 of the Contract Act. The brief facts of the case are that on 16.1.2008 a new H.T.T.V. meter was installed and commissioned by the Bihar State Electricity Board in the petitioner’s factory, which was supplied and installed by M/s. Secure Meters Ltd. It is stated that on 1.2.2008 and 1.3.2008 the readings were made and the bills for the month of January 2 and February, 2008 were raised, which were duly paid by the petitioner. On 2.4.2008, the officials of the Board visited the factory premises of the petitioner where it was detected that the meter was not functioning and the same was removed and sealed. A fresh meter was, thereafter, installed on 23.4.2008. The case of the petitioner is that without any approval from him merely a letter was written subsequently to the petitioner that the meter was being sent to the Laboratory of M/s. Secure Meters Ltd. situated at Udaipur for testing but the petitioner, not intending to be a party to the testing by the manufacturer itself did not present himself at the time of test . Subsequently, in the test report, it was alleged by M/s. Secure Meters Ltd. that the meter was tampered. Pursuant to the said report, an F.I.R. being Bihta P.S. Case No. 127/2008 was instituted on 13.5.2008 against the Director of the petitioner company and a punitive bill of Rs. 1,72,10,639/- dated 13.5.2008 was raised. Apprehending threat of disconnection, the petitioner filed a representation on 14.5.2008 for making payment of the amount under punitive bill in 24 equal monthly instalment, but the respondents agreed to accept 25% of the bill at the first instalment and the balance amounts to be paid in four equal monthly instaments, for which an agreement dated 14.5.2008 was entered into between the petitioner and the Electricity Board. The petitioner claims to have deposited Rs. 43,02,660/- on 5.2008 itself and thereafter three instalments out of four instalments till 14.8.2008. Learned counsel for the petitioner submits that the authorities of the Board could not have sent the meter for testing at the laboratory of M/s. Secure Meters Ltd. or at any other Laboratory contrary 3 to the requirement of fairness and the provisions of Clause 8.14 (c) (iii) of the Bihar Electricity Supply Code, 2007. It is submitted that under the said provision, the same could have been sent for testing either at the licensee ( Electricity Board) Laboratory , independent Laboratory or Electrical Inspector as agreed by the consumer, i.e., the petitioner in the presence of the representatives of the Board. The licensee Board , however, without obtaining any such consent or agreement from the petitioner, but merely after sending the subsequent letter, on its own had sent the same for testing at the Laboratory of M/s. Secure Meters Ltd., which was itself the manufacturer of the said meter. It is further contended that the said action of the Board is further vitiated since the said M/s. Secure Meters Ltd. was an interested party in the matter and being the manufacturer had entered into an agreement with the Board whereby it had given a guarantee to replace any defective meter by a new one and the meter being found defective during the guarantee period, it was in the interest of the supplier to show that it had been tampered. In support of the aforesaid proposition, learned counsel for the petitioner relies upon a decision of this Court given on 12.8.2008 in the case of M/s. Shakti Cold Storage & Another V. The Bihar State Electricity Board and others. It is further submitted by learned counsel for the petitioner that the so-called agreement for payment of the dues under the punitive bill in five instalments entered into between the petitioner and the Electricity Board is no agreement in the eye of law and fit to be declared void in view 4 of the fact that the petitioner had no choice in the matter but to succumb to the dictates of the Electricity Board officials; otherwise the electrical connection of the petitioner would have been disconnected leading to massive loss being caused to the petitioner industry and it was under such a situation that the petitioner was forced to enter into the said agreement. It is submitted by learned counsel for the petitioner that this aspect of the matter has also stood concluded by the aforesaid decision dated 12.8.2008 in the case of M/s. Shakti Cold Storage (supra). The further contention of learned counsel for the petitioner is that the punitive bill could not have been raised for the period from 3.4.2008 to 24.4.2008 in terms of the provisions of Annexure-7 of the Bihar Electricity Supply Code, 2007 which lay down that a punitive bill can be raised only for the period prior to the date of inspection. Learned counsel also contends that the meter itself having been installed on 16.1.2008 and thereafter having been reported as correctly showing reading regarding consumption of electricity on 1.2.2008 and 1.3.2008 and bills with respect to the same also having been raised and duly paid by the petitioner, it was not open to the authority of the Board to have raised the punitive bill from 16.1.2008 itself and at best the punitive bill could have been raised for a period from 2.3.2008 to 2.4.2008, i.e., 32 days. Lastly, it is submitted by learned counsel for the petitioner that although in terms of the public notice issued by the Electricity Board as per Clause 11.4 of the Bihar Electricity Supply Code, 2007, the petitioner had approached the authorities of the Board under the said provision, which amounts to an admission of tampering with the meter, 5 which was installed on 23.4.2008, but the same was also done under pressure from the authorities of the Board , since as per the report of the Vigilance authorities of the Board by their report dated 9.5.2008 ( Annexure-15) no defects were found in the said meter. Learned counsel for the Electricity Board, on the other hand, submits that no benefit can be derived by the petitioner from the decision of this Court in the case of Shakti Cold Storage (supra) since the facts of the said case were entire differently. It is submitted that in the said case the meter had been removed from the premises of the petitioner of that case without the same being sealed in the presence of the consumer and it had been sent for testing more than a year after it had been so removed and for the said reason, this Court had come to the conclusions enumerated above in the said case. It is urged by learned counsel that in the present matter after the removal of the meter on 2.4.2008, the same was sealed in the presence of the petitioner / petitioner’s representative and immediately thereafter it was sent for testing to the accredited laboratory of M/s. Secure Meters Ltd. at Udaipur under proper intimation to the petitioner with a request to be present at the time of analysis and testing. It is submitted that the petitioner should not be permitted to take any advantage of the decision in the case of Shakti Cold Storage (supra). Learned counsel also submits that the petitioner has a previous history of theft of electricity also. He was found to have committed theft of electricity in which action taken against the petitioner was upheld upto the Supreme Court. It is further submitted that by applying under the provisions of Clause 11.4 of the Bihar Electricity Supply Code, 6 the petitioner has come forward and admitted the fact that even with respect to the new meter installed on 23.4.2008, he has made tampering and thereby committed theft of electricity. For the said reasons, learned counsel for the Board submits that since the petitioner has not approached this Court with clean hand, no benefit of the earlier decision should be granted to him. On a consideration of the facts and circumstances of the case, this Court is unable to accept the submissions of learned counsel for the Electricity Board. Whatever the previous history of the petitioner regarding theft of electricity, the fact remains that in the present matter there has been a violation of the provisions of the Bihar Electricity Supply Code, 2007 by the authorities of the Board. So far as the provisions of the Bihar Electricity Supply Code,2007 in the matter of testing of defective meter are concerned, it has been clearly laid down in Clause 8.14 ( c ) (iii) of the said Code in this regard. This Court has already examined in detail the said issue in the case of Shakti Cold Storage (supra) and, therefore, the same does not require to be repeated. It is needless to say that while the issue of sealing of the meter in the presence of the consumer is of utmost importance but it is equally important that the meter should be sent to the Laboratory among three alternatives specified in the Bihar Electricity Supply Code, 2007 at the option of the petitioner and not that of the Electricity Board. That has not been done in the present case. It has also been held by this Court that sending the meter for testing to the accredited laboratory of M/s. Secure Meters Ltd. which is the manufacturer and supplier of the said meters under guarantee to 7 replace the defective meter to the Electricity Board, is likely to create a strong bias on the part of the suppler/ manufacturer in testing the meter, even though its laboratory may be an accredited laboratory. The said point has also been concluded by the aforesaid decision. Lastly, on the issue of agreement dated 14.5.2008 for making payment under the punitive bill also, this Court finds, as has already been held in the aforesaid Shakti Cold Storage case (supra), that such an agreement was entered into between the petitioner and the Board in a situation in which the petitioner had no option but to accept the electric supply on the terms and conditions imposed by the Board even unreasonably, it being a monopoly supplier, on account of the loss which stoppage of such supply would entail for a manufacturer or other commercial consumer. Thus for the reasons indicated in the aforesaid decision, this Court further finds that the agreement dated 14.5.2008 for making payment in instalments is void and fit to be set aside and is, accordingly, set aside. In view of the findings recorded on the aforesaid points, it is not at all required to consider the other submissions made by learned counsel for the petitioner. The writ application is, accordingly, allowed, the punitive bills, as contained in Annexures 3 and 8 are quashed and the authorities of the Board are directed to adjust the amounts already deposited against the said bills in the future bills of the petitioner. VPS ( Ramesh Kumar Datta,J.)