IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.620 of 2005 M/S Pulak Enterprises, a Partnership Firm, having its place of business at 23, Industrial Area, Patna-800 013, through its Partner, U.C. Sahay … … Petitioner Versus 1. The Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna, though its Chairman, 2. The General Manager-cum-Chief Engineer, Patna Electrical Supply Undertaking, Mangles Road, Patna, 3. The Electrical Superintending Engineer, Patna Electrical Supply Undertaking, Mangles Road, Patna, 4. The Executive Engineer, Patna Electrical Supply Undertaking, Mangles Road, Patna, … … Respondents For the Petitioner: Mr. Suraj Samdarshi, Advocate For the BSEB: Mr. Vinay Kirti Singh, Advocate … 10 02.09.2011 Petitioner seeks quashing of the notice dated 11.07.203 issued by the respondent no. 1 as contained in Annexure 12, whereby and whereunder a demand of Rs. 9,26,670/- has been made against it as outstanding energy dues. Petitioner being a partnership firm applied for electrical connection for manufacturing of Steel Strip and accordingly, entered into an Agreement with Bihar State Electricity Board(hereinafter to be referred to as “the Board”) for a contract demand of 75 KVA. Subsequently, the same was raised to 150 KVA and an agreement with the Board was entered into for the enhanced load of 150 KVA 2 on 15.02.1997, a copy of which stands appended as Annexure 1. However, according to the petitioner, it gave notice to the Electrical Superintending Engineer on 20.04.2000(Annexure-3) for termination of the agreement in terms of Clause 9(a). The notice, as claimed, was sent by a registered post. However, the petitioner was served with Annual Minimum Guarantee(AMG) bill dated 29.06.2001 for the period 2000-2001. Petitioner filed an application for remission of the said amount. However, subsequently, petitioner’s supply was disconnected on 01.11.2001 on the ground of non-payment of charges and, thereafter, a demand has been made vide Annexure 7 considering the aforesaid date as the date of termination of agreement as per Clause 9(b) of the Agreement. Thus, a further demand for AMG for the period 2001-2002 was also made. The aforesaid facts are admitted. However, learned counsel for the petitioner at the time of hearing of this writ application has confined his prayer only with respect to challenging the notice as contained in Annexure 7, whereby a further demand of AMG with respect to one year notice period commencing from 01.11.2001, i.e., the date of disconnection, had been made. Learned counsel for the petitioner has placed 3 reliance upon Clause 15 of the Agreement and it has been submitted that it has been incorporated therein in clear terms that any notice sent by registered post would be presumed to be delivered on the following day of the day the same was posted. Thus, it is contended that since such notice of termination of the Agreement was sent by registered post on 20.04.2000, the respondents could have charged only one year’s notice period annual minimum guarantee from 21.04.2000, which the petitioner is ready to deposit. At best, it has been submitted that the respondents could have charged the bill against the actual consumption of energy after expiry of twelve months’ notice period after termination of the Agreement till the date of disconnection. Learned counsel has placed reliance upon a decision of the Apex Court in Vijay Kumar Agrawal v. Bihar State Electricity Board & Ors. (2003(2) Patna Law Journal Reports(SC), 121), wherein it has been held that a communication sent through a registered post, properly addressed, and postal charges pre-paid, raises a presumption of its having reached the addressee and such presumption cannot stand rebutted by a bare denial. A counter affidavit has been filed on behalf of the 4 respondents and at the time of hearing, a stand has been taken by learned counsel for the respondents that though it has been confirmed by the Postal Department that a registered post had been booked, however, the same never reached the office of the respondents and as such the notice as per Clause 9(a) of the Agreement, as claimed by the petitioner, cannot be considered for the said purpose. It is next contended that even if it is assumed that such notice would be presumed to have reached the addressee, however, since the petitioner has not only consumed the energy even after such notice period of one year but also after expiry of the said period till the date of disconnection, i.e., 01.11.2000. In above view of the matter it has been contended that by its conduct itself the petitioner’s case of termination of contract falls flat. Learned counsel has placed reliance upon a decision of this Court in M/s Gaya Roller Flour Mills v. Bihar State Electricity Board and ors. (1995(2) Patna Law Journal Reports, 715), holding that if the customer, even after giving a notice for disconnection, continued to utilize energy, then he could be liable to pay as per the contract/agreement. Learned counsel has further placed reliance upon a decision of this Court rendered in M/s 5 Gurunanak Re-Rolling Mills v. The State of Bihar and others (C.W.J.C. No. 1258 of 2007) to impress upon that in a case of identical nature, when a certificate case was going on for recovery of the amount, this Court has held that the conduct of the petitioner itself has extended that period of notice and so long as the petitioner continued to consume power on the supply made by the respondents, the liability of the petitioner to pay the bills not only of the current consumption but also of the annual minimum guarantee will have to be met. However, learned counsel for the petitioner submits that in the aforesaid decision a direction was given to the certificate officer to delete the part of the claim with regard to 28.05.1998 to 28.05.1999, i.e., subsequent one year minimum guarantee charges after disconnection. Learned counsel for the respondents has also placed reliance upon a decision of the Apex Court in Bihar State Electricity Board, Patna and others v. M/s Green Rubber Industries and others (AIR 1990 Supreme Court, 699) in support of his stand that stipulations to pay minimum guarantee charges are irrespective of charges whether the energy was consumed or not and that minimum guarantee continued till the actual determination of the contract. Thus, it is submitted that in 6 view of the fact that the petitioner continued to consume energy even after the alleged notice against Annexure 3 and even after one year notice period, its conduct shows that the notice was showy and should be ignored. Learned counsel for the petitioner tried to distinguish the decision of this Court in M/s Gaya Roller Flour Mills on the ground that the facts of the case were different from this case inasmuch as a notice for disconnection and, thereafter, again a request for reconnection was made in that case and, thus, this Court had come to the conclusion that the petitioner of that case would be liable to pay the charges as per the contract. The petitioner has placed reliance upon a decision of the Orissa High Court in Niranjan Das v. Orissa State Electricity Board (AIR 2004 Orissa, 53), a judgment passed by a learned Single Judge in a Second Appeal. Having heard learned counsel appearing on behalf of the parties and upon perusal of the records, this Court finds force in the submission raised on behalf of the respondents. It is true that if a notice for termination of the contract is posted under registered cover in terms of Clause 15 of the Agreement that would be treated to have been 7 delivered on the following day as has been held by the Apex Court in Vijay Kumar Agrawal (supra) and a mere denial by the defendants of receiving such notice would not stand as rebuttal of the presumption. However, the conduct of the petitioner definitely goes to show otherwise as it had continued to consume energy not only for the period of one year of notice but also after exceeding that period by another period of six months till the supply was disconnected on 01.11.2001. The petitioner had ample chance to inform the respondents that he had already sent a notice of termination of the contract, therefore, he is not ready to consume energy. It could have informed the respondents again regarding the termination notice when AMG bill dated 29.06.2011 was served upon it. However, as pointed out by learned counsel for the respondents, even in the letter dated 08.08.2000 as contained in Annexure 5, the aforesaid fact does not stand incorporated. This Court is in agreement with the decision taken by a learned single Judge of this Court in M/s Gaya Roller Flour Mills(supra), because in view of the conduct of the petitioner, if it is held that he would not be liable to pay the charges from the date of disconnection, then it would give rise to anomalous situation. A consumer has a right to 8 determine the agreement the moment a notice is given. Such right has already accrued on the petitioner, however, as has been held in the aforesaid decision, the accrual of right of determination of contract is one thing and the actual determination of contract, in exercise of that right, is something quite different. Petitioner had extended his contract further by his conduct as it continued to consume energy not only after the termination notice dated 20.04.2000 but even after expiry of one year notice period and the disconnection of supply. A right might have accrued to the consumer on the basis of determination of contract but notwithstanding the notice the contract was kept alive and subsisting by the action of consumer in continuing to receive and utilise electricity as has been held in the aforesaid decision. Of course, in the subsequent decision in M/s Gurunanak Re-Rolling Mills(supra) the learned single Judge of this Court held that the certificate officer would be bound to delete that part of the claim with regard to 28.05.1998 to 28.05.1999, but in the opinion of this Court, this was due to the reason that the Collector, while remanding the matter back to the Certificate Officer, had 9 already held that no bill would be chargeable after the date of disconnection, i.e., dated 28.05.1998. Thus, a direction was given in view of the fact that had arisen in that particular case. However, in that decision also, it has categorically been held that in view of the conduct of the petitioner that he continued to consume power even after expiry of the period of notice he would be liable to pay the charges. Payment of charges would definitely mean payment of charges as per the agreement between the parties. Another decision cited by the petitioner of the Orissa High Court in Niranjan Das (supra) would also not come to his help as while deciding the Second Appeal it has been held that the respondents had supplied the energy to the Saw Mills without any gratuitous intention and also the petitioner had paid more than the dues. In the aforesaid case, as would appear from the concluding part of paragraph 10, the power supply to the consumer was disconnected after termination of the contract whereas in the case in hand, the power supply was not disconnected as the Board claims that it had never received the registered notice and the petitioner continued to consume energy even after one year notice period from the date of notice of termination, thus, extending the period of agreement by its conduct. The 10 power supply was disconnected after about 1½ years of notice on account of non-payment of bills. Thus, the respondents have considered the date of such disconnection as the deemed date of notice for termination of contract and have charged one year further AMG as per clause 9(b) of the agreement. In above view of the matter, in my considered opinion, the respondents have correctly issued a notice charging annual minimum guarantee for further one year from the date of disconnection as per Clause 9(b) of the Agreement. Accordingly, this writ application stands dismissed. However, this order will not come in the way of the respondents in deciding the other claims raised by the petitioner under Clause 13 of the Agreement expeditiously, preferably within four months from the date of receipt/production of a copy of this order. SC ( Dr. Ravi Ranjan, J.)