IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.650 of 2008 THE JHARKHAND STATE ELECTRICIT Versus SAVITA CHEMICALS LTD.,MUMBAI & ----------- For the appellant: Mr. Dhruba Mukherjee For the respondent nos. 2 to 6 : Mr. Vijay Kumar Verma P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Kishore K. Mandal --- Dated, the 22nd August, 2008 The appeal suffers from delay of 41 days and for condonation thereof, an application (IA. No.5063 of 2008) has been made. Even if we condone the delay for the cause shown in the application, and that we do, we find that appeal does not deserve to be admitted. 2. In our view, the controversy raised in this appeal stands concluded by the order dated 23rd May, 2008 passed in LPA. No.204 of 2008; The Jharkhand State Electricity Board vs. M/S Bhojpur Engineering Works & Ors. 3. The matter was considered thus: M/s Bhojpur Engineering Works Pvt. Ltd. and one Ashok Kumar who are presently respondent nos. 1 and 2 (hereinafter referred to as ‘the petitioners’) filed a writ petition before this court seeking direction to the Bihar State Electricity Board (for short ‘BSEB’) and Jharkhand State Electricity Board (for short ‘JSEB’) to pay the entire 2 bill amount relating to supply of transformers to the erstwhile BSEB of unified Bihar. In the writ petition, the petitioners have set out the facts relating to the contract for supply of distribution transformers of different capacities. It has been submitted that ultimately the contract came into existence between the petitioners and the erstwhile BSEB for supply of 63 KVA, 100 KVA and 200 KVA distribution transformers on the computed landed cost rates. Although payments were made but a sum of Rs.18,72,131.22 remained unpaid and that led the petitioners to approach this court. On behalf of BSEB, counter affidavit was filed to the writ petition and it was stated that 49.73% of the total claim prior to bifurcation of BSEB has been paid to the petitioners. According to them, remaining 50.27% of the total claim of Rs.18,72,131.22 was liable to be paid by JSEB. The stand of the JSEB, in their counter affidavit, was that the contract agreement was between erstwhile BSEB and the petitioners; purchase orders were issued by the BSEB prior to creation of JSEB and the transformers were supplied to the Central Store of BSEB and, therefore, no liability of unpaid amount towards purchase of transformers could be fastened on them. It was also submitted that paying authority was a Deputy Director of Accounts, HQ., BSEB, Patna and during this period, the entire revenue collection from territorial jurisdiction of JSEB were deposited in BSEB account. Thus, JSEB denied their liability. The Single Judge, after hearing the parties, by the impugned order, has directed JSEB to pay the balance amount to the petitioners with liberty to JSEB to get the amount restituted if ultimately the apportion order was modified by the Supreme Court. That vide notification dated 4th November, 2004 issued by the Ministry of Power, Government of India, the liability of BSEB has been apportioned, is not in dispute. As per that apportionment, the liability of BSEB is 49.73% while the liability of JSEB is 50.27%. It also appears that the State of Jharkhand as well as JSEB have not accepted the apportionment order issued by the Ministry of Power, Government of India and that a suit has been filed before the Supreme Court vide Suit No. 1 of 2005 which is yet pending. 3 The question that falls for determination is whether during the pendency of suit before the Supreme Court, JSEB must be asked to discharge its liability as per notification of apportionment dated 4th November, 2004. While dealing with the aforesaid question that needs to be considered is whether section 54 of Bihar Re-organization Act, 2000 (hereinafter referred to as ‘the Act of 2000’) is attracted to the present fact situation, and if yes, what is its effect. We deem it proper to refer section 54 of the Act, upon which strong reliance has been placed by counsel for the appellant. Section 54 reads thus: “Where, before the appointed day, the existing State of Bihar has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be deemed to have been made in the exercise of the executive power- (a) if the purposes of the contract are, on and from the appointed day, exclusive purposes of either of the successor State of Bihar and Jharkhand; and (b) any other case, of the State of Bihar; and all rights and liabilities which have accrued or may accrue under any such contract shall, to the extent to which they would have been rights or liabilities of the existing State of Bihar, be rights or liabilities of the State of Jharkhand or the State of Bihar, as the case may be: Provided that in any such case as is referred to in clause (b), the initial allocation of rights and liabilities made by this sub- section shall be subject to such financial adjustment as may be agreed upon between the successor State of Bihar and Jharkhand or in default of such agreement, as the Central may, by order, direct. (2) 2 For the purposes of this section, there shall be deemed to be included in the liabilities which have accrued or may accrue under any contract --- (a) any liability to satisfy an order or award made by any court or other tribunal in proceedings relating to the contract; and (b) any liability in respect of expenses incurred in or in connection with any such proceedings. 3. This section shall have effect subject to the other provisions of this Part relating to the appointment of liabilities in respect of loans, guarantees and other financial obligations; and bank balances and securities shall, notwithstanding that they partake of the nature of contractual rights, be dealt with under those provisions.” 4 A close look at section 54 of the Act would show that it relates to contracts entered into by the then State of Bihar prior to 25th Aughst, 2000 in relation to its executive power for any purposes of the State. The contract referable to section 54 of the Act are the contracts made by the State of Bihar and not its instrumentalities or the State Public Undertakings. The contracts that have been entered into by BSEB are not covered by section 54 of the Act at all. As a matter of fact, the relevant provision with regard to BSEB is found in section 62 of the Act. Sub-section (3) of Section 62 reads thus: “62. (1) ……… (a)………… (b) ………… ( c ) …………. (2) ………….. (3) The Board or the Corporation referred to in sub section (1) shall cease to function as from, and shall be deemed to be dissolved on such date as the Central government may, by order, appoint; and upon such dissolution, its assets, rights and liability shall be apportioned between the successor State of Bihar and Jharkhand in such manner as may be agreed upon between them within one year of the dissolution of the Board or the Corporation, as the case may be or if no agreement is reached, in such manner as the Central Government may, by order, determine: Provided that any liabilities of the said Board relating to the unpaid dues of the coal supplied to the Board by any public sector coal company shall be provisionally apportioned between the State Electricity Boards constituted respectively in the successor States of the existing State of Bihar or after the date appointed for the dissolution of the Board under this sub-section in such manner as may be agreed upon between the Governments of the successor States within one month of such dissolution or if no agreement is reached, in such manner as the Central government may, by order, determined subject to reconciliation and finalization of the liabilities which shall be completed within three months from the date of such dissolution by the mutual agreement between the successor State or failing such agreement by the direction of the Central Government: Provided further that an interest at the rate of two per cent, higher than the Cash Credit interest shall be paid on outstanding unpaid dues of the coal supplied to the Board by the public sector coal company till the liquidation of 5 such dues by the concerned State Electricity Board constituted in the successor State on or after the date appointed for the dissolution of the Board under this sub- section.” What is provided in sub-section (3) of Section 62 is that BSEB shall cease to function from the date appointed by the Central Government and also deem to be dissolved from that date and upon such dissolution, its assets, rights and liabilities would be apportioned between the State of Bihar and Jharkhand as per the agreement entered into between them within one year of the dissolution of the Board and if no agreement was reached, as per the determination by the Central Government. It is an admitted position that the then Electricity Board stood dissolved on and from 1.4.2001. Obviously, from that date, its assets, rights and liabilities were liable to be apportioned within one year as per the agreement between the State of Bihar and State of Jharkhand but since these two states could not reach an agreement about apportionment of right, assets and liabilities of the then Electricity Board, the Central Government, in accord with the power conferred upon it under section 62(3) of the Act, determined the aspect relating to apportionment. As per the notification dated 4th November, 2004, the BSEB is liable to discharge its liability to the extent of 49.73% and JSEB is to discharge its liability to the extent of 50.27%. It, therefore, has to be held that the liability of JSEB of unpaid dues to the petitioners stands so long as the notification dated 4th November, 2004 holds the field and is not set aside or modified by the Supreme Court. Whatever be the dispute between BSEB and JSEB about their respective liability, the petitioners who have supplied distribution transformers to the erstwhile BSEB, cannot be asked to be left in lurch indefinitely. The BSEB having discharged its liability, the act of JSEB in not discharging its liability as per apportionment, cannot be justifiably countenanced. Thus, the order of the Single Judge cannot be said to be erroneous. We, thus, find no justification in entertaining this appeal. It is, accordingly, dismissed in limine.” 6 4. For the self-same reasons, this appeal is liable to be dismissed and is dismissed in limine. This disposes of IA. No.5063 of 2008 as well. 5. Since the appeal has been dismissed in limine, the application for interim relief (IA. No.5064 of 2008) does not survive. 6. I. A. No.5064 of 2008 stands rejected. R. M. Lodha, CJ. Kishore K. Mandal, J. Neyaz/-