IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3229 of 2003 BINITA RANI w/o Mahesh Prasad, Advocate, r/o Mohalla- Budha colony, P.S. Budha Colony, District- Patna. Versus 1. THE BIHAR STATE ELECTRICITY Board, Patna through its Chairman 2. Executive Engineer, New Capital Division, P.E.S.U., Patna. 3. Sri Gauri Shankar Jha, Assistant Engineer, Electricity, Revenue, PESU, Patna. 4. Sri Naresh Prasad Yadav, Assistant Engineer, Supply N.C. Division, PESU, Patna. 5. Sri P.N. Srivastava, Junior Engineer, Supply, PESU, Patna. ----------- For the petitioner: Mr. Dhanraj Kumar, Advocate Mr. Mahesh Kumar No.2, Advocate Mr. R.K. Raman, Advocate For the B.S.E.B.: Mr. Vinay Kirti Singh,Advocate Mr. Akhileshwar Singh, Advocate. --- 7. 6.4.2010 Heard learned counsel for the petitioner and learned counsel for the respondent Bihar State Electricity Board. The petitioner seeks quashing of the bill for the month of May, 2002, by which the minimum monthly consumption was enhanced from the month of July 2001, on the basis of new tariff notified in the Gazette on 5.11.2001 with retrospective effect, from 350 units to 1200 units for L.T.I.S. connection and also for quashing the notice dated 21.1.2003 giving threat to disconnect the electric connection if arrears amounting to Rs.32812/- is not deposited within seven days as also to refund the money which the respondent Board had already realized or will realize as excess amount on the basis of load factor on average monthly charge. - 2 - The short facts of the case are that the petitioner was given a new electrical connection of 5 H.P. load on 26.12.1998. After 13.5.1999, the meter turned defective and the Board allegedly started charging in an arbitrary manner 1750 units per month at the rate of 350 units per H.P. on the basis of the minimum monthly guarantee. The same was realized till April, 2002. On 6.4.2002, the petitioner supplied a new meter, which was, accordingly, installed. Thereafter on 25.6.2002, the electricity bill for Rs. 33,730/- showing arrears of Rs. 28,820/-was given to the petitioner; under threat of disconnection the petitioner subsequently deposited the amount. The grievance of the petitioner is that the tariff itself was notified in the Official Gazette on 5.11.2001 but was given retrospective effect from 1.6.2001 which, according to learned counsel for the petitioner, is not permissible. It is further submitted that in terms of the provisions of Section 26 of the Indian Electricity Act read with Rule 4 of the Electricity Rules, it was the duty of the Board to have supplied the meter. In support of the same, learned counsel for the petitioner relies upon a decision of this - 3 - Court in the case of Baleshwar Prasad v. The Bihar State Electricity Board and Ors.: 2002 (2) PLJR 416. It is also the stand of the petitioner that the Board was required to intimate the petitioner for supply of the meter, otherwise it was not entitled to charge on the basis of the new notification with effect from 1.6.2001. In support of the same, learned counsel relies upon two decisions of this Court in the cases of Tirupati Techpack Pvt. Ltd. v. Bihar State Electricity Board & Ors. : 2003 (4) PLJR 544 and in M/s. Bajrangwali Iron Industry v. Bihar State Electricity Board & Ors. : 2003 (4) PLJR 555, in paragraph No.11 of Tirupati Techpack case ( supra ) it was held as follows: “11. The mere narration of the facts makes it clear, without the need of any arguments that the Board has not acted in this case fairly and reasonably. As noted above, the meter was defective from its very inception and this fact was fully in the knowledge of the officials of the Board. Yet no steps were taken either - 4 - to replace it or even to ask the petitioner to supply another meter. That was the position when the notification was issued on 31.5.2001. At that time it was not even published in the official gazette that might give rise to the legal presumption of its knowledge to all and sundry. To all one knows it might have been locked in the Board’s closets and yet it was invoked to drastically penalize the petitioner for its failure to supply a good meter. The Board is a statutory body and its actions must be informed by fairness and reasonableness. In this case, it cannot be said that the Board has acted fairly and reasonably to the petitioner. Hence, even without going into the question of validity of the notification, dated 31.5.2001, it must be held that all the bills raised on that basis were invalid, illegal and liable to be set aside.” - 5 - Similarly in M/s. Bajrangwali’s case in paragraph No.7 it was held as follows: “.The question whether or not the notification was required to be published in the gazette for its enforceability is an issue of legality. On being published in the gazette the notification would undoubtedly become enforceable. Publication in the gazette would also give rise to the legal presumption about its knowledge to everyone and no one would be able to escape its rigors on the plea that he had no knowledge about it. But even assuming that the provisions of the two notifications were legally enforceable without/before their publication in the gazette, as it is contended on behalf of the board, the question arises can the action of the Board be said to be reasonable, just and fair in taking out a draconian - 6 - provision one fine day out of its closets and making the consumer pay dearly on its basis without any prior warning or information. There is nothing to indicate that the notifications were given any publicity or were circulated by any other means. Having regard to the highly stringent nature of the provisions, the least that was expected was that the petitioner should have been asked to supply a new meter for replacement of the previous one that got burnt and the petitioner should have been informed regarding his liability in case of failure to do so.” Learned counsel further submits that the petitioner having deposited the amounts raised in the bill under protest is entitled to refund of the same. It is also urged that two per cent delayed payment surcharge is also not leviable on the said bill from the due date. According to learned counsel the amounts were already paid on - 7 - the basis of average bill were quite sufficient. However, even if new alleged tariff after 5.11.2001 is taken into consideration, then the rest amount may be refunded to the petitioner. Learned counsel for the Electricity Board, on the other hand, submits that the Board has rightly raised bill on the basis of the notification dated 31.5.2001, but at worst in view of the law laid down in the case of Tirupati Techpack (supra) the Board would be entitled to charge the higher amount with effect from 5.11.2001 when the notification was published in the Official Gazette. It is contended that the tariff, which is statutory in nature issued under Section 49 of the Electricity (Supply) Act, 1948 and has not been challenged in the writ petition nor has been set aside by any earlier decision, would be applicable at the very least in the case of the petitioner from 5.11.2001 when the same was notified in the Official Gazette. I have considered the submissions of learned counsels for the parties. Admittedly the petitioner has not challenged the tariff as duly notified on 5.11.2001 as being effective at least from the date it was published in the Official - 8 - Gazette. The challenge is only to the retrospective application of the same. So far as the retrospective application of the tariff with effect from 1.6.2001 on the basis of notification of the Board dated 31.5.2001 is concerned, the same is not permissible in view of the law laid down by this court in the case of Tirupati Techpack (supra). It was clearly held therein that the Board’s notification dated 31.5.2009 which was not even published in the Official Gazette at that time will not give rise to any presumption regarding its knowledge and thus its drastic provisions could not have been invoked to penalize the petitioner for its failure to supply the meter. Similarly, in Bajrangwali’s case (supra) it was held by this Court that on being published in the Official gazette the notification would undoubtedly become enforceable and its publication give rise to the legal presumption about its knowledge to everyone and no one would be able to escape on the plea that he had no knowledge about it. In view of the aforesaid observations in these two cases relied upon by the learned counsel for the petitioner, it is evident that there would - 9 - be no question of issuance of any further notice by the Board to the petitioner to supply a meter after tariff was notified in the Official Gazette on 5.11.2001. Reliance placed upon Tirupati Techpack case (supra) by learned counsel for the petitioner in this regard is wholly misconceived as in those cases, the question of raising higher bill was confined to the notification dated 31.5.2001, which was not yet published in the Official Gazette till the date the higher bill was submitted, which was before 5.11.2001 in both the cases. This Court is thus of the view that, in view of the law laid down in the case of Tirupati Techpack (supra), the Board can charge on the basis of the tariff notification only from 5.11.2001 when the same was notified in the Official Gazette. That being the position of law the Bill dated 29.6.2002 in so far as it has raised arrears on the basis of the new tariff with effect from 1.6.2001 is set aside. The respondent authorities of the Board are directed to raise a fresh bill with regard to the arrears applying the previous tariff notification up to the period 4.11.2001 and - 10 - only for the period thereafter raise the arrears bill on the basis of the tariff notified on 5.11.2001. Any delayed payment surcharge shall also be levied in accordance with the fresh calculation of arrears in the fresh bill raised by the Board. Since the amount under the said bill has already been paid by the petitioner, the Board is directed to refund the amount recovered by it in excess on the basis of the fresh bill to be raised, within a period of two months from the date of receipt/production of a copy of this order. The writ application is accordingly partly allowed in terms of the aforesaid observations and directions. VPS ( Ramesh Kumar Datta, J. )