1 S.B.CIVIL WRIT PETITION NO. 4384/1999 M/s Nav Bharat Ginning & Vs. R.S.E.B. & Ors. General Mills Ltd. DATE OF ORDER :: 18th July, 2007 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Sunil Bhandari, for the petitioner. Mr. Ravi Bhansali, for the respondents. .... The petitioner, a company registered under the Companies Act, 1956 set up an industrial unit of seasonal nature to manufacture cotton bales, oil and oil cakes. A high tension electricity connection was given to the industrial unit on 4.12.1993 and on inspection the meter regulating electricity consumption was found defective, therefore, the Executive Engineer (MT), RSEB, Bikaner made an average assessment for 2,30,221 units for 25 days and 16 hours working basis for the period commencing from 4.12.1993 to 29.1.1994 the period during that the meter was not working properly. The petitioner with an averment that the meter was in order up to 11.1.1994 and also that at the time of recording meter reading on 26.12.1993 the consumption of electricity recorded was 81,950 units, as such, average charge was to be made only for the month of January 1994, raised a dispute before the Zonal Level Settlement Committee that met on 20.7.1996 to consider the matter and held that the meter was in working order in the month of December 1993, accordingly, the excess amount charged for December 1993 2 recording electricity consumption was ordered to be adjusted in subsequent bills. The petitioner made an application to review the decision taken by the Zonal Level Settlement Committee and the same was considered by Zonal Level Settlement Committee in its meeting held on 23.1.1998. The Zonal Level Settlement Committee reviewed the matter in view of the circular dated 10.7.1997 and ordered as follows: “The case of M/s Nav Bharat Ginning and General Mills Pvt. Limited, Rawla was discussed and decided that for the period the KW meter remained defective i.e. 26.12.93 to 29.01.94, calculation be made as per KVAH reading. As informed the difference between two readings is 29296. The multiplying factor i.e. is 5.5. Therefore, consumption of KVAH becomes 161128 considering power factor as 0.85, the net consumption comes to 136959. Therefore, billing made for 136959 units. Bills be revised accordingly.” A representation was again submitted by the petitioner to the Board Level Settlement Committee with a contention that the consumption of electricity was required to be decided on basis of the electricity consumed in succeeding season in light of notification of the respondent-Board issued while exercising powers conferred by Section 49 of the Electricity (Supply) Act, 1948 dated 20.10.1995. The Board Level Settlement Committee by the order dated 27.10.1998 rejected the 3 petitioner's contention on the count that the consumer-petitioner agreed to the assessment of 1,36,959 units by signing the minutes of meeting that held on 23.1.1998. By this petition for writ a challenge is given to the order passed by the Board Level Settlement Committee on 27.10.1998 and also assessment of 1,36,959 units under the order dated 23.1.1998 passed by the Zonal Level Settlement Committee. The contention of counsel for the petitioner is that mere signing the minutes of Zonal Level Settlement Committee does not establish the petitioner's agreement with a decision but it pertains to show presence of the petitioner's representative in the meeting. On merits, it is contended that the respondents decided the net consumption of 1,36,959 units by taking into consideration the average consumption of succeeding months whereas in accordance with the notification dated 20.10.1995, the case of the petitioner being a seasonal factory was to be decided by taking into consideration average consumption of succeeding season. Per contra, stand of the respondents is that the representative of the petitioner agreed to the assessment of 1,36,959 units by signing minutes of the meeting, therefore, it was not open for the petitioner to 4 challenge the same. It is further contended that the assessment was ordered to be made by the Zonal Level Settlement Committee be taken into consideration average electricity consumption for succeeding months just to maintain fairness and objectivity. Heard rival contentions. From perusal of the document Annexure-5 that is minutes of meeting of Zonal Level Settlement Committee held on 23.1.1998, it is apparent that Sh. Rajkumar attended the meeting as a representative of petitioner firm, however, mere marking of signatures by him on minutes does not prove his agreement with the decision of Zonal Level Settlement Committee. Relevant to note that in the minutes it is also noted that, “the consumer voluntarily agreed to withdraw the court case filed in this matter. The above settlement is subject to withdrawal of court cases relating to aforesaid matter(s) by the consumer/RSEB.” The counsel for the parties are in agreement that such note is in general and as a matter of fact no case relating to present dispute was pending at the time of decision of Zonal Level Settlement Committee before any court. The mention of such note despite the fact that no case was pending before any court clearly establishes that such type of insertions are made by the committee in mechanical manner without ascertaining the facts relating to pendency of dispute. In such 5 circumstances, the signatures of the representative of the petitioner are nothing but a mark of presence and not acceptance of the decision. Thus, I am having no hesitation in accepting contention of learned counsel for the petitioner that no agreement was made by or on behalf of the petitioner to make assessment for net consumption of 1,36,959 units. The applicability of the notification dated 20.10.1995 in the present dispute is not disputed as the dispute was raised by the petitioner on 15.6.1995 and on 20.10.1995 the matter was pending consideration. Para 2 of the General Conditions of Supply and Scale of Miscellaneous Charge relating to the supply of electricity as amended by the notification referred above prescribes that' “in case of seasonal factories in the event of the meter being out of order i.e. stopped/burnt/ceased to function during any month/months, the consumption for that month/months, will be assessed on the basis of the average consumption of the preceding season/succeeding season, whichever is higher.” The condition referred above nowhere empowers the respondents to make assessment on basis of consumption of electricity in the preceding or succeeding months. In the case of seasonal industry the only criteria given for assessment of average consumption is by taking into consideration electricity consumption in preceding season or succeeding season whichever is higher. In the 6 instant matter the electricity connection was extended in the month of December 1993 only, therefore, there was no question of making any assessment on basis of preceding season. The only criteria, therefore, available was on basis of succeeding season. The respondents in light of the amendment introduced in General Conditions under notification dated 20.10.1995 were required to make assessment of average consumption relating to the period in question by taking into consideration average electricity consumption in succeeding season only. The respondents, therefore, erred while determining consumption for the disputed period on basis of the average consumption relating to succeeding months. In view of it the decision of the Zonal Level Settlement Committee dated 23.1.1998 is also illegal. The orders of the Board Level Settlement Committee as well as Zonal Level Settlement Committee, therefore, are quashed. The Zonal Level Settlement Committee is directed to decide the matter afresh by taking into consideration average electricity consumption of the industrial unit run by the petitioner in succeeding season. This petition for writ is disposed of accordingly. (GOVIND MATHUR ),J. Jgoyal