IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5244 of 2000 NALANDA ELECTRO STEEL (P) LTD, 2nd Floor, Biscomaun Tower, West Gandhi Maidan, Patna-800 001, through its Managing Director Sri Sunil Kumar Singh. . . . . . Petitioner. Versus 1. BIHAR STATE ELECTRICITY BOARD, Vidyut Bhawan, Bailey Road, Patna, through its Chairman. 2. The General Manager cum Chief Engineer, Central Bihar Area Electricity Board, Serpentine Road, Patna. 3. The Electrical Superintending Engineer, Patna Electric Circle, Patna. 4. The Electrical Executive Engineer (C & R), BSEB, R Block, Patna. 5. The Electrical Executive Engineer, Bihar State Electricity Board, Fatuha, Patna. 6. The Assistant Electrical Engineer, Fatuha. . . . . . . Respondents. For the Petitioner : Mr. Y.V. Giri, Sr. Advocate : Mr. Raju Giri, Advocate For the Respondent : Mr. Vinajy Kirti Singh, Advocate : Mr. Vijay Kumar Verma, Advocate ----------- 16/ 25.01.2010 Heard learned counsel for the petitioner and the State. In the instant writ application, the petitioner prays for quashing the bill dated 01.06.2000 issued for the month of May 2000 by respondent Bihar State Electricity Board on the ground that the petitioner having complied with the required conditions for reduction of Contract Demand for 5100 KVA to 2550 KVA with effect from 18.05.2000, the bill for the period 01.05.2000 to 18.05.2000 should have been on the basis of the Contract Demand of 5100 KVA and for the remaining period on the basis of the 2550 KVA. The petitioner is aggrieved that respondents have raised the bill for the entire month on the basis of 5100 KVA. The petitioner submits that in view of Clause 15.3 of 1999 tariff, petitioner can reduce the capacity of the furnace by giving six months notice. Learned counsel submits that petitioner was running two units. He closed one unit and in terms of Sub-clause 3 of Clause - 2 - 15 of 1999 tariff, as contained in Annexure-1, he filed an application for reduction of contract demand by 50 per cent i.e. 5100 KVA to 2550 KVA. A copy of the application is annexed as Annexure-2 to this application. The Electrical Superintending Engineer vide letter dated 27.04.2000 issued certain directives in respect of the request made by the petitioner for reducing the capacity of the furnace and the corresponding contract demand (Annexure-6). The petitioner vide his various letters stated that he has complied with all the required conditions mentioned therein. Learned counsel submits that it would appear from Annexures-13 and 14, the letters of the respondents that one induction furnace and the transformer used thereof were removed on 16.05.2000. Learned counsel submits that in such circumstances, and in view of the Board’s own letter, he was entitled to be charged at the reduced contract load of 2550 KVA with effect from 16.05.2000. However, later on a dispute was created by the Electrical Superintending Engineer vide letter dated 05.06.2000 (Annexure-18) in terms of Clause 8 and 9 of the HT agreement whether the load would be reduced only after expiry of a period of three years, which would be 07.08.2000 or whether it would be 05.06.2000 in view of Clause 15.3 of the Tariff notification, as contained in Annexure-1. Learned counsel submits that in the mean time Annexure-19 was issued on 01.06.2000 raising the bill on the basis of load capacity of 5100 KVA. The petitioner states that the raising of bill is in violation of Clause 15.3 of the Tariff Act. He further submits that pursuant to the instructions of the Electrical Superintending Engineer - 3 - himself, the petitioner has reduced one furnace and the transformer thereof to the tune of 50 per cent of the contract load of 5100 KVA. He further submits that the respondent cannot approbate and reprobate at the same time. This Court by order dated 21.12.2000 directed after hearing the counsel for the parties that in case the petitioner deposited Rs. 30,00,000 (Rs. 30 Lakhs) his line shall be restored forthwith. Learned counsel submits that as he was not able to pay the demand raised on contract load of 5100 KVA, his electrical line was disconnected. The petitioner thereafter filed an interlocutory application. The Court directed that during the pendency of this writ application, the Electricity Board shall raise bill on the basis of 2550 KVA and if petitioner goes on paying current charges, the electric line of the petitioner shall not be disconnected. The petitioner for some period continued to make payment on the basis of load demand of 2550 KVA but later on defaulted, as the petitioner was not able to raise its resources. This Court on 10.03.2006 observed that the best course would be for the petitioner to approach BIFR to sort out the matter and thereafter petitioner approached BIFR for rehabilitation. Learned counsel has drawn attention to Annexure I/1, which is letter dated 28.11.2006 issued by Section officer, Bench III of BIFR communicating the order of the Board. The order shows that the case of the petitioner was registered as Case no. 216 / 02. The Board noticed that disconnection of power supply would be adverse to both company as well as the workers. Accordingly, Board advised the Electrical Superintending Engineer, Bihar State Electricity Board to - 4 - restore the power supply so long as the company continues to pay the current dues. As far as the arrears are concerned, the same would be appropriately taken care of while preparing the rehabilitation package for the company. Learned counsel submits that pursuant to the direction of the Board, he filed a representation before the respondents but they have not responded favourably. The petitioner further states that once the case of the petitioner for rehabilitation is registered under Section 16 of the Sick Industrial Companies (Special Provision Act, 1985), then in view of Section 22 thereof no coercive action would be taken against the company in view of decisions in the case of Real Value Appliances Vs. Canara Bank reported in (1998) 5 SCC 554, Tata Davy Vs. State of Orissa reported in (1997) 6 SCC 669 and HMP Sugar Ltd Vs. State of Bihar reported in 2000 (1) PLJR 159. Mr. Vinay Kirti Singh, learned counsel for the Board, refers to a decision in the case of Bihar State Electricity Board, Patna & Ors. Vs. M/s Green Rubber Industries & Ors reported in AIR 1990 SC 699. He submits that Board is entitled to raise minimum guarantee charges irrespective of whether energy was consumed or not. Heard counsel for the parties. The petitioner’s units became functional from 07.08.1997. The petitioner was running the two furnaces with contract demand of 5100 KVA. The petitioner subsequently decided to close one of its furnaces and as such applied for decrease in the capacity of furnace to the tune of 50 per cent of the total contract load of 5100 KVA on 17.11.1999. Clause 15.3 of the - 5 - Tariff provides for reduction of furnace capacity with a prior six months notice. The petitioner’s application was processed and the respondent Electrical Superintending Engineer, Bihar State Electricity Board directed him to observe certain formalities in respect of closing of the furnace and removing of the transformers, as contained in Annexure-6. Annexures-13 and 14 would show that the respondents had complied with the instructions given by the Electrical Superintending Engineer after proper verification. Thus, the respondents were entitled only to charge demand load at the rate of 2550 KVA with effect from 18.05.2000, after lapse of statutory period of notice under Clause 15.3 of the Act. However, the letter dated 05.06.2000 issued by the Electrical Superintending Engineer (Annexure-18) would show that the petitioner would be entitled to reduce contract demand of 2550 KVA with effect from expiry of three years from the date of functioning of the furnace on 19.05.1997. Thus, the dispute is whether bill would be raised on 2550 KVA capacity from 18.05.2000 claimed by the petitioner or whether it would be charged at the aforesaid rate with effect from 07.08.2000, as has been claimed by the Board. The respondents also relied upon agreement entered into between the parties. In the instant case, I find that pursuant to the instructions given by the Electrical Superintending Engineer himself, the petitioner had closed down one of the two furnaces. It would appear that after due application and authorization from the respondents, the petitioner closed one furnace and the transformer thereof, reducing the load - 6 - capacity to 2550 KVA. The instructions issued by the respondents (Annexure-13) would also show that petitioner had closed one of the furnace and the transformer thereof reducing load capacity to 2550 KVA. Annexure-14, which is letter dated 19.05.2000 of the Electrical Superintending Engineer, also shows that petitioner had removed one furnace and the transformer thereof reducing the contract load capacity to 2550 KVA. As the petitioner had closed one of its furnaces and the transformer thereof after due application under Clause 15.3 of the Tariff Act and authorization, the Board cannot turn back and say now that petitioner could have got the installed capacity reduced only after 2 ½ months thereafter. In this view of the matter, I am of the view that the respondents erred in raising the bill of demand capacity to 5100 KVA for the period 18.05.2000 onwards. The petitioner would be liable to pay bill for the period in question on reduced capacity load of 2550 KVA. So far as the request letter of the BIFR is concerned, it will be open to the petitioner to make a representation before the General Manager, Bihar State Electricity Board, who would consider the matter in accordance with law. This writ application is, accordingly, disposed of. Uday/ (Samarendra Pratap Singh, J.)