IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9803 of 2000 Mritunjay Kumar, son of Shri Anup Lal, resident of Tulsi Mandi, Guljarbag, District- Patna. --- Petitioner. Versus 1. Bihar State Electricity Board, Vidyut Bhawan, Patna, through its Secretary. 2. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna 3. The Electrical Executive Engineer, Guljarbagh, Patna. – Respondents. ----------- O R D E R 7/ 15.12.2010 Heard the parties. 2. The present writ petition under Article 226 of the Constitution of India has been filed by the petitioner with a prayer for quashing the supplementary bill dated 29.06.2000 (Annexure-3), raised against the petitioner by the respondent- Bihar State Electricity Board, making a demand of Rs. 1, 26, 451/- towards arrear of electricity dues and fuel surcharge etc. 3. The facts involved in the present writ petition may be put in a very narrow compass. The petitioner, a Low Tension Industrial Supply (LTIS) consumer of Bihar State Electricity Board (hereinafter referred to as the “Board” only), was sanctioned 5 HP electrical load in the year 1994. He was running a stove factory in his business premises and claims to have made regular payment of electricity bill raised by the respondent-Board and its functionaries. The petitioner further claims to have closed his factory in March, 2000 and, accordingly, submitted an 2 application before the respondent Electrical Executive Engineer for disconnection of his electrical line. A bill for the month of March 2000, vide Annexure-1, and for the month of April, 2000, vide Annexure-2, were raised by the Board, when , according to the petitioner, the factory had already been closed down, yet he paid the aforesaid bills on 17.05.2000 and on 31.05.2000, respectively. 4. The grievance of the petitioner is that suddenly he received impugned supplementary bill dated 29.06.2000 (Annexure-3) for an amount of Rs. 1,26,451/- towards the arrear for additional consumption of electricity as also towards the arrear of fuel surcharge etc. for the months of November, 1994 to March, 2000. Aforesaid bill has been raised as per inspection report submitted by the officials of the respondent-Board. 5. Mr. Raju Giri, learned counsel appearing on behalf of the petitioner, has submitted that factory of the petitioner had already been closed down in the month of March, 2000 and, therefore, there was no occasion for the respondent Board to issue the impugned supplementary bill for the previous period. He has contended that neither any inspection of factory premises was made by the officials of the respondent-Board in presence of the petitioner nor he was given an opportunity of hearing before issuance of the impugned supplementary bill. 3 Therefore, in his submission, impugned action of the respondent is in violation of the principles of natural justice and is fit to be set aside by this Court. He has drawn attention of this Court that as per the case of the respondents, inspection of the factory was held as far back as on 21.07.1999, but no supplementary demand was made till March, 2000, when factory came to be closed down and after almost one year, from the date of inspection impugned supplementary bill was raised on 29.06.2000, which creates a grave doubt about its genuineness and bonafides of the respondents. 6. Mr. Vinay Kirti Singh, learned counsel appearing on behalf of the respondents, has heavily placed reliance on the counter affidavit filed on behalf of respondent no. 1 and 2 and the tariff notification dated 21st June, 1993 of the respondent Board, published in extraordinary gazette dated 23rd June, 1993, and in his submission the petitioner has no case and the writ petition is liable to be dismissed by this Court. Paragraph no. 5 and 8 of the counter- affidavit filed on behalf of respondent no. 1 and 2 are relevant and are reproduced herein below: “ Para-5: That it may first be relevant to give a brief outline of the case in hand. An inspection was carried out on 21.07.1999 in the premises of the petitioner. The petitioner’s sanctioned load was 5 H.P. During the course of inspection held on 21.07.1999 two welding machines 4 without name plates, grinder, pressure machine motor, cooler, bulbs and fans were found connected to the Board’s system of supply as would be apparent from a copy of the inspection report annexed herewith and marked as Annexure-A to this court- affidavit. Para-8: That according to the Board’s tariff 1993:- “In the case of Arc Welding set where the name plate is missing then the capacity of the set will be treated as 15 B.H.P. and billed accordingly. Hence the load of 2 welding sets have been taken to be 30 H.P. The total lights/fans/cooler load comes to 2.180 KW= 2.92 H.P. The load of grinder and pressure machine motor is 1.5 H.P. Hence, the total connected load will add up to 34.42 H.P. say 35 H.P. i.e. 30+ 2.92+ 1.5.” 7. It has been submitted on behalf of the respondents that admittedly total load sanctioned for the petitioner’s factory was only 5 H.P., but at the time of inspection held on 21.07.1999 he was found to be consuming about 35 H.P., details of which have been given in inspection report, Annexure-A. It is submitted that since the petitioner had already paid the electricity charge for 5 H.P., therefore, he was liable to pay additional charge for remaining 30 H.P. electrical consumption and, accordingly, the impugned supplementary bill has been raised by the respondents against the petitioner. Though it has been contended that the factory premises was inspected by the 5 officials of the respondent- Board in presence of one Ajay Kumar, a man of the petitioner, but it has been fairly conceded that the petitioner was not present at the time of inspection. It has further been fairly conceded that before issuing the impugned supplementary bill, opportunity of hearing was not given to the petitioner. 8. Learned counsel for the respondents in order to justify the impugned supplementary bill dated 29.06.2000 (Annexure-3), has placed reliance on the following judgments:- (A) Bihar State Electricity Board and others v. M/s Sri Bir Ispat, reported in 1999(1) PLJR 466 (D.B.), (B) Shiv Shambhu Hard Coke Vs. Bihar State Electricity Board and Ors., reported in 1999(2) PLJR 665 (S.J.) (C) Bihar State Electricity Board vs. Smt. Kishori Devi, reported in 2002 (2) PLJR 773 (D.B.). 9. After having heard the parties and on perusal of the material available on record, it is apparent that petitioner was sanctioned electricity load of 5 H.P. only for running his factory and he was paying the bills raised by the respondent Board and its officials. The factory premises of the petitioner were inspected on 21.07.1999 in 6 presence of one Ajay Kumar. If he is not treated to a man of the petitioner, he can be termed as an independent person. At the time of inspection, the petitioner was found consuming more than sanctioned load of the electricity. The petitioner was admittedly not present at the time of inspection and he claims to have closed down his factory in the month of March, 2000. It is further apparent that despite inspection having been held on 21.07.1999, the supplementary bill was not raised against the petitioner for almost one year. Therefore, it was incumbent upon the respondents to give an opportunity of hearing to the petitioner before raising a supplementary bill. A Division Bench of this Court in the case of Bihar State Electricity Board and others Vs. M/s Sri Bir Ispat (Supra) has held that premises of the consumer can be inspected by the officer of the Board any time without any notice or information to the consumer to find out/ detect the use of unauthorized load of the electricity. But inspection is required to be made in presence of either the consumer or his representative. If at the time of inspection, the consumer is found using excess electricity than the sanctioned/contracted load, then a copy of the inspection report is required to be given to the consumer. It has been further held that before imposing any additional liability the consumer must be given a reasonable opportunity of 7 being heard. Paragraph- 8 of the aforesaid judgment is relevant and is reproduced herein below:- “ The Board’s officials are empowered to inspect the consumer’s premises. As the inspection is carried out in order to find out/detect the use of unauthorized load and other irregularities in consumption of the electricity, it is not necessary for the Board to give advance notice about the inspection to the consumer, because such a notice will frustrate the very purpose of the surprise inspection. But inspection must be made in the presence of the consumer or his representative if available on the spot. If they are either not available or are not willing to co-operate with the officials in the inspection, it will be open to the Board to carry on the inspection. But fairness demands that in such a case as far as possible the inspection must be done in presence of some independent persons other than the employees of the Board. If at the time of inspection, the consumer is found using the electricity in excess of the contracted load and/or is guilty of other irregularities/ illegalities in connection with the electricity supply he must be supplied with the inspection report and given a show cause notice before passing any order against him. Before imposing any additional liability in the form of electricity charges, it is necessary that the consumer must be given a reasonable opportunity of being heard. In absence of such procedural safeguards, if any order is passed 8 or electricity bills are raised adversely affecting the consumer the same are liable to be declared as arbitrary and unfair. In the instant case, the impugned order/bills have been passed without giving any opportunity of being heard to the petitioner. Therefore, they cannot be sustained.” 10. Similar view was taken by another Division Bench of this Court in the case of The Bihar State Electricity Board vs. Smt. Kishori Devi (Supra) and the matter was remitted back to the respondent Board for fresh decision. 11. Learned counsel for the petitioner submits that in the backdrop of the case set forth above, entire matter is required to be considered afresh by the competent authority of the Board and only after giving opportunity of hearing a fresh bill can be raised. Learned counsel for the respondents in the light of the ratio laid down by a Division Bench of this Court, referred to above, has conceded that matter may be remanded to the respondent Board for its consideration, but in his submission, remand should be limited one only with respect to pilferage amount, i.e., extra consumption of electricity by the petitioner during the relevant period. In his submission, fuel surcharge matter and other connected matters, which is subject matter of dispute in the present 9 supplementary bill are not required to be reconsidered and re-decided by respondent Board and its officials. This Court finds that against the impugned supplementary bill the petitioner had already submitted a detailed representation dated 25.07.2000 (Annexure-4) and that has not been disposed of. This Court, further, is of the opinion that in view of non-supply of the inspection report to the petitioner and in view of the issuance of the impugned supplementary bill without giving an opportunity of hearing to the petitioner, the matter is required to be considered afresh by the respondents. 12. For the reasons recorded above, the impugned supplementary bill dated 29.06.2000 (Annexure-3) is hereby quashed. The entire matter is remitted to the respondents for considering the case afresh, after giving opportunity of hearing to the petitioner and for raising a fresh bill against the petitioner for the period in question in accordance with law. The petitioner is hereby directed to appear before respondent no.3 with a certified copy of this order and all other relevant documents in support of his claim within a period of one month from today. Where- after respondent no.3 or any other competent officer of the Respondent - Board shall pass a fresh final order within a period of three months. If the petitioner does not cooperate in passing the fresh order and does not appear on the 10 dates fixed by the authorities for holding enquiry/inspection, if so required, or for hearing the matter for final disposal, then it would be open to the Board and its officials to proceed with the matter ex-parte. It is further made clear that if the petitioner does not appear before respondent no.3 along with the certified copy of this order and all other relevant documents within the time prescribed by this Court, then it would be construed that the present writ petition has stood rejected by this Court. But there shall be no order as to costs. BTiwary/ ( Birendra Prasad Verma, J.)