IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No.14597 of 2004 M/s B.G.S. Steels Pvt. Ltd. Simli Moradpur, Patna City, appearing through its Director, Amit Poddar, son of Sri Sita Ram Poddar, resident of Jhauganj, P.S.- Patna City, Town Patna City, District Patna ……. ……. Petitioner Versus 1.The Bihar State Electricity Board, appearing through its Chairman, Bailey Road, P.S.-Kotwali, Town and District-Patna 2.The Secretary, Bihar State Electricity Board, Bailey Road, P.S.-Kotwali, Town and District-Patna 3.The Elecl. Executive Engineer, Patna City Electric Supply Division, Mittanghat, Patna City, Dist.-Patna 4.The Asstt. Elecl. Engineer, (Revenue), Patna City Electric Supply Division, Mittanghat, Patna City, Dist.-Patna 5.The Asstt. Elecl. Engineer (Supply), Katra Electric Supply Sub-Division, Patna City, Dist.- Patna. --------- For the petitioner: Mr.S.S.Rekhi For the B.S.E.B.: Mr. Vinay Kirti Singh Mr.Akhileshwar Singh -------- 7 1.7.2011. Heard learned counsel for the petitioner and learned counsel appearing on behalf of the respondent-Bihar State Electricity Board. In this case, the petitioner has prayed for quashing of the provisional final electricity bill dated 21.07.2004 as contained in Annexure-1 to the writ petition issued by respondent No 4 charging three months’ minimum charges amounting to Rs 61,901/- which, according to the petitioner, is not applicable in the case of the petitioner. Further, prayer of the petitioner is for a direction to pay compound interest at the rate of 5% per annum for a sum of Rs 20,000/- held by the respondent as security deposit from the petitioner for a period commencing from 28.11.1994 till the date of its adjustment against the bill on 21.07.2004. The petitioner has further contended that it is not responsible to pay penal 2 interest at the rate of 2% per month for delay in payment. The petitioner is a private limited Company and has been a consumer of the respondent-Board from 03.02.1995 to 24.04.2003. Learned counsel for the petitioner submits that the petitioner had applied for electric supply connection for 50 HP to its factory located at Simli Muradpur, Patnacity and the load was sanctioned on 18.11.1994. The petitioner further submits that according to the regulation of the Board, the applicant for electric supply must execute an agreement in a prescribed standard form and, only thereafter, the electric supply is effected. The petitioner entered into such an agreement with respondent No 3 on 30.11.1994 for 50 HP load. The petitioner further submits that due to compelling circumstances, the factory had to be closed and it did not need supply of electricity any more. Hence, it issued a notice for termination of the agreement under Clause 9 (a) of the agreement on 27.08.2003. The petitioner further submits that it requested for closing of its account and sending a final bill on 15.09.2003 for making prompt payment. According to the petitioner, the petitioner’s electric supply was disconnected and meter was removed on 25.09.2003. The learned counsel for the petitioner submits that disconnection of electric supply was effected not due to default in payment of Board’s due nor was any mandatory notice issued by the respondent as required under Section 24 (i) of the Electricity Act and Clause 9 (b) of the agreement prior to such disconnection of electric supply. Learnd counsel for the petitioner submits that respondent No 4 issued a provisional final bill on 21.07.2004 charging three months minimum charges under paragraph 6 (ii) of the 3 revised conditions of supply amounting to Rs 61,090.98 P. Learned counsel for the petitioner submits that the petitioner raised a dispute against the impugned bill dated 21.07.2004 before respondent No 3 and requested him to send a revised bill for payment on 26.07.2004 but the respondent paid no heed to the representation dated 26.07.2004. Learnd counsel for the petitioner has drawn my attention to paragraph 7 of the writ petition wherein relying on extract of English translated copy of the prescribed agreement published by the respondent-Board have been reproduced. For the purpose of adjudication of this case, Clauses 8, 9 (a) and 9 (b) of the agreement is relevant which reads as follows :- “8. The agreement shall be ordinarily enforced for a period of not less than two years in the first instance (except in exceptional cases in which written consent of the Board will be taken) from the date of commencement of supply i.e. … … … and, thereafter, shall continue from year to year until the agreement is determined as hereinafter provided. 9 (a). the consumer shall not be at liberty to determine this agreement before the expiration of two years from the date of commencement of supply of energy. The consumer may determine this agreement with effect from any date after the said period on giving to the Board not less than one calendar month’s previous notice in writing in that behalf and upon the expiration of the period of such notice. This agreement shall cease and determine without prejudice to any right which may then have accrued to the Board hereunder, provided always that the consumer may at any time with the previous consent of the Board transfer 4 or assign this agreement to any other person and upon subscription of such transfer this agreement shall be binding on the transferee and the Board and take effect in all respects as if the transferee had originally been a party thereto in place of the consumer who shall henceforth be discharged from all liability under or in respect thereof. 9 (b). in case the consumer’s supply is disconnected by the Board in exercise of its powers under this agreement and/or law and consumer does not apply for the connection in accordance with law within the remainder period of the above given compulsorily availing of supply or that of notice whichever be longer, he shall be deemed to have given a notice on the date of disconnection in terms of aforesaid Clause 9 (a) for the determination of the agreement and on expiry of the abovesaid remainder period of compulsorily availing of supply or notice whichever is longer, this agreement shall cease and determine in the same way as above.” Learned counsel for the petitioner has also brought to the notice of the Board that the respondent-Board has framed its revised conditions of supply to its consumer under its notification No 477 dated 29.10.2002 applicable from 01.11.2002. paragraph 6 (b) of this notification reads as follows: “Termination of Agreement:- (i) If any consumer terminates his agreement within the minimum statutory period of the agreement or cease to avail supply of energy or the supply is disconnected or where no formal agreement is tendered within the period applicable, he shall be liable to pay the 5 minimum charges and demand charges as per the tariff rate of the Board in force from time to time for the remaining statutory period as per agreement or notice period, as applicable. (ii) if the line of a consumer is disconnected for default in payment of dues of the Board and the same remains disconnected for a period of three months, the date of disconnection of line shall be deemed to be the date of notice for termination of agreement and the agreement shall be deemed to have ceased and determined after a period of three months calculated from the date of disconnection. The consumer shall be liable to pay minimum charges/demand charges, as per tariff provisions for this period of three months. (iii) if after termination of agreement, the consumer comes forward with a request to provide power to his premises, he shall be treated as a new applicant but he shall clear all dues against the erstwhile connection.” Learned counsel for the petitioner submits that from a plain reading of revised conditions of supply of paragraph 6 (b), it is clear that sub para (i) relates to Clause 8 and 9 (a) of the agreement wherein no change has been made whereas in sub para (ii), the period of deemed notice has been enhanced from one month to three months in those cases in which electric supply has been disconnected for payment of dues of the Board. According to the petitioner, this provision is not applicable in the facts and circumstances of this case. Learned counsel for the petitioner alleges that on a complete misreading of the provision of law and without any application of Clause 6 (i) of the revised conditions of supply read 6 with Clause 9(a) of the agreement between the petitioner and respondents, respondent no.4 has issued a provisional final bill on 21.07.2004 charging three months’ minimum charges under para 6 (ii) of the revised conditions of supply amounting to Rs 61,090.98 P. Learned counsel for the petitioner, thus, submits that the petitioner is not liable to pay minimum charges for three months’ period after disconnection of electric supply as his electric supply was not disconnected for default in payment of dues of the Board. With respect to second relief sought for in the writ petition, the petitioner has relied on Clause 7 of the translated form of agreement which reads as follows:- “the consumer shall on receipt of a requisition from the Board in this behalf, deposit a sum of Rs … (Rs …) in cash, as security for the purpose next hereinafter, and shall on a like requisition from time to time renew or replenish such security in the event of the same becoming exhausted or insufficient. The Board shall be at liberty at any time and from time to time to appropriate and apply any security so deposited as aforesaid in or towards the payment or satisfaction of or any money which shall become due or owing by the consumer to the Board in respect of the supply of energy or otherwise under this agreement but the provision in this clause contained shall not prejudice any other remedy to which the Board may be entitled for recovery of any such money. Provided firstly that the amount of abovesaid security deposit is liable to be enhanced suitably at such time and in such manner as has been specified in the tariffs framed by the Board and in force from time to time. The time of security deposit in full or any additional amount 7 over and above the amount already in deposit demanded by the Board on enhancement aforementioned or otherwise shall be paid in cash by the consumer by a date to be fixed by the Board in the same manner as for payment of bills on account of energy and other charges under the tariffs in force and in case of non-payment within the above given time, the service may be disconnected or serving not less than clear seven days’ notice whereafter connection can only be restored if deposit in full is made alongwith the disconnection and reconnection charges. Provided secondly that Board shall pay an interest at the rate as declared by it from time to time on the amount lying in the deposit with it and the amount of interest so calculated shall be adjusted in any bill once in a financial year”. Learned counsel for the petition submits that the petitioner paid security deposit of Rs 20,000/- on 29.11.1994. this security deposit remained with the respondent-Board till it was adjusted against the dues in the impugned bill dated 21.04.2004 as contained in Annexure-1 to the writ petition and, thus, the petitioner is entitled to interest at the prescribed rate once in every financial year in accordance with second proviso to Clause 7 of the agreement entered into between the parties. Learned counsel appearing for the respondent-Baord concedes to this aspect of the matter that security deposit so made by the petitioner would carry interest at the rate as declared by the Board. The submission of learned counsel for the petitioner is that the respondent- Board has issued a tariff amendment order vide its letter No 472 dated 14.08.1996 wherein it has been stated that the tariff notification dated 8 23.06.1993 effective from 01.07.1993 stands amended as follows:- … … … “H. Security deposit : (Clause 15.3 (a). The interest on security deposit is payable at the rate and manner which was being followed prior to the tariff notification dated 23.06.1993. … … …” Learned counsel for the respondent-Board on the other hand submits that the Board had introduced a modified general terms and conditions of supply vide notification No 477 dated 29.10.2002 in partial modification of notification No COM-/TAR-1010/93-430 dated 21.06.1993 together with all subsequent notifications on the subject dated 28.05.2001, 31.05.2001, 28.07.2001, 27.05.2002 and in pursuance of the decision taken by the Board vide Resolution No 7879 dated 21.09.2002, it was notified for general information that by virtue of powers conferred under Section 49 of the Electricity (Supply) Act, 1948, the Bihar Electricity Board modified the general terms and conditions of supply of its tariff for all categories of consumers served or to be served by the Board. According to him, in case of the petitioner, Clause 6 (b) (ii) of revised conditions of supply would apply. The date of disconnection of line shall be deemed to be the date of notification of termination of agreement and agreement shall be deemed to have ceased and determined after a period of three months calculated from the month of disconnection and, thus, the consumer shall be liable to pay minimum charges/demand charges as per tariff period of those three months. Learned counsel for the respondent-Board further submits 9 that supply of line to the petitioner’s factory was disconnected in the month of December, 2003 on the basis of request letter given by the petitioner dated 27.08.2003. He further submits that where the terms and conditions of an agreement entered into between the Board and its consumer are at variance with the terms and conditions as contained in tariff notification, the latter shall prevail and, as such, agreement will be deemed to have been amended accordingly. Relying on the aforesaid submission, the learned counsel for the Board submits that period of notice for determination of agreement was modified by the Board under its tariff dated 29.10.2002, the petitioner would be liable to pay the amount of minimum consumption and demand for three months’ notice period as envisaged under Clause 6 (b)(ii) of the modified general terms and conditions of supply. He, thus, submits that since tariff of the Board had fixed three months’ time for determination of agreement, the petitioner is liable to pay three months’ energy charges/demand charges. He further submits that the petitioner is liable to pay DPS at the rate of 2% on outstanding dues as per clause 16.2 (a) of tariff notification 1993. Learned counsel for the petitioner, in reply, submits that notification No 477 dated 29.10.2002 is not a valid document. The amended notification was issued by the Board in exercise of its powers conferred under Section 49 of the Indian Electricity (Supply) Act, 1948. The powers conferred by the Act is express subject to other provisions of the Act. Section 79 of the Act mandates that if Board chooses to make a Regulation by virtue of power conferred under the Act, it has to publish the same in the official gazette. He submits that all the tariff and 10 conditions of supply framed by the Board in exercise of its powers conferred under Section 49 of the Act have been published in the Bihar Gazette (Extraordinary) including a gazette notification dated June 21, 1993. According to the learned counsel for the petitioner, the amended notification dated 29.10.2002 on which the Board relies has not been published in any manner in official gazette and, thus, the contents of the same is not known to the consumers. It is an internal communication made to the Board’s officials only. Learned counsel for the petitioner submits that the notification dated 29.10.2002 is arbitrary and in violation of Section 79 of the Act. It is not binding on the petitioner and cannot supersede the agreement between the parties. The tariff notification dated June 21, 1993 published in the official gazette. After hearing the submissions advanced on behalf of the parties, I am of the view that disconnection of electric supply was certainly not due to fault in payment of the Board’s dues nor was any mandatory notification issued by the respondent-Board as required under Section 24 (i) of the Act and Clause 9 (b) of the agreement prior to such disconnection of electric supply. Hence, in my view, Clause 9 (b) of the agreement has no application to the facts and circumstances of this case. It is further apparent that the petitioner had already availed supply for more than two years which was the mandatory period in terms of Clauses 8 and 9 (a) of the agreement. Further, from perusal of Clause 9 (a) of the agreement, it is apparent that consumer may determine the agreement with effect from any date after expiration of two years giving to the Board not less than one calendar month’s notice in writing in that behalf and upon 11 expiration of period of notice, the agreement shall cease and determine without prejudice to any right, which may then have occurred to the Board. I am also of the view that part of the notification No 477 dated 29.10.2002 as contained in Annexure-A to the counter affidavit filed on behalf of the Board has not been issued in consonance with Section 79 of the Act which mandates that if the Board chooses to make a Regulation by virtue of powers conferred under the Act, it has to publish the same in official gazette. Since the said notification dated 29.10.2002 has not been published in official gazette, it is not binding on the petitioner and cannot supersede the agreement entered into between the parties and the tariff notification dated 21st June, 1993 published in the Bihar Gazette (Extraordinary). Thus, in my view, the impugned provisional final bill dated 21.07.2004, as contained in Annexure-1 to the writ petition cannot be sustained in the eye of law and, thus, the same is hereby set aside. The respondent-Board is directed to issue a fresh electric bill to the petitioner in terms of the agreement entered into between the parties as also in terms of their own tariff notification dated 21.6.1993. The respondent-Board is also directed to pay admissible interest in accordance with law for a sum of Rs 20,000/- deposited with them as security deposit which remained with the respondents from 28.11.1994 to 21.07.2004. It is relevant to mention herein that learned counsel for the respondent- Board has fairly conceded that the petitioner is entitled for interest over the security deposit. So far as the case of the petitioner that it is not responsible to pay any penal interest at the rate of 2% per month for delay in adjustment of security deposit is concerned, it is made clear that if the respondents while 12 issuing a revised bill finds that the petitioner is liable to pay delayed payment surcharge on outstanding dues as per clause 16.2.(a) of tariff notification of 1993, the petitioner will be liable to make payment thereof. In the result, the writ petition is allowed to the extent indicated above. Md.S. (AFR) (Ashwani Kumar Singh,J.)