IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12948 of 2001 M/S SSF INDUSTRIES LTD, HAJIPUR INDUSTRIAL AREA, VAISHALI THROUGH ITS DIRECTOR SHRI P.K.AGRAWAL VERSUS 1. BIHAR STATE ELECTRICITY BOARD THRUGH ITS CHAIRMAN 2. THE GM CUM CHIEF ENGINEER, NORTH BIHAR AND TIRHUT AREA ELECTRICITY BOARD, MUZAFFARPUR 3. THE ELE.SUPERINTENDING ENGINEER, MUZAFFARPUR ELECTRICAL CIRCLE 4. THE ELE.EXECUTIVE ENGINEER (C & R), ELECTRIC SUPPLY CIRCLE,MUZAFFARPUR AND 5. THE ASSTT. ELEC.ENGINEER, ELECTRIC SUPPLY DIVISION I, HAJIPUR. ----------- 10. 04.02.2010. Heard learned counsel for the parties. 2. The petitioner prays that Clause 16.8 of the Tariff Notification No. COM/TAR/1010/93-430 dated 21.6.1993 (in short as 1993 Tariff) be declared ultra vires section 26 of the Electricity Act, 1926 as well as sections 46 & 49 of Electricity (Supply) Act, 1948. The petitioner further prays that the bill for July and August, 2001 raised in terms of said clause 16.8 on account of the meter installed in the petitioner’s premises becoming defective on 12.7.2001 be quashed. 3. Petitioner is a company incorporated under the companies Act, 1956. It was granted electrical connection for 224 KVA contract demand, some time in February, 1997 and the supply of electricity commenced on and from 15.4.1997. On 12.7.2001 Electrical Foremen of the petitioner found that the meter of the petitioner was no functioning and the glass of the meter was blackened. On the same day, petitioner informed the Superintending engineer and Executive engineer by letters regarding the incident. He sent reminders on 16.7.2001 and 27.4.2001 to these respondent officials. On 30.7.2001, a team of engineers came to the factory of the petitioner and examined the meter and found all the seals of the meter intact. The team made inspection of the spot and submitted its - 2 - report dated 30.7.2001 contained in annexure 4 advising the petitioner for replacement of meter. The petitioner in turn requested the respondents vide letters dated 31.7.2001 and 7.8.2001 (annexure 5 & 6) for replacement of the meter in view of inspection report. In the meantime, the petitioner received a letter from Executive engineer asking him to deposit a sum of Rs. 46,180/- so that steps for replacement of burnt meter may be taken. The petitioner states that though the estimate was prepared on 16.7.2001, the same was communicated to him after nearly 20 days. The petitioner further states that as per section 26 of the Indian Electricity Act, 1910, respondents were obliged to provide correct meter, unless one elects to have his own meter. 4. On 4.8.2001 respondents issued bills for the whole month of July, 2001 on basis of the Minimum Guarantee Units calculated on the Contract Demand of 224 KVA for month of July, 2001. The petitioner registered his protest against the said bill stating that Clause 16.8 of Tariff notification was not applicable to the petitioner and respondents ought not to have levied charge on basis of Minimum Guarantee as petitioner being a new industrial unit, enjoyed exemption from Minimum Guarantee charge for a period of five years from the date of commencement of supply. The petitioner further vide letter 28.8.2001 protested and requested to amend the bill and charge on the basis of the average consumptions of either the preceding three months or corresponding 3 months of previous year. However, respondents issued bills for August, 2001 also on the same basis, charging for 34748 units calculated on basis of minimum guarantee dividing AMG units by 12. - 3 - 5. The petitioner submits that clause 16.8. of the 1991 or 1993 Tariff do provide that in case the meter has either gone defective or burnt or stopped, then during such period, the reading should be based on average consumption of previous three months from the date of meter being out of order or the average consumption for the corresponding three months of the previous year’s consumption or the minimum monthly guarantee, whichever is the highest. Furthermore, it being a new industrial unit having commenced its supply on 16.4.1997 was granted exemption as per the Industrial policy and in this respect reference was made to annexure 13 to the suppl affidavit, a letter dated 28.5.1999 of the Electrical Superintending Engineer, Electric Supply Division, Muzaffarpur. The petitioner, in course of argument, however, did not insist for first relief that clause 16.8 of the Tariff notification is ultra vires section 26 of the Electricity Act, 1926 as well as sections 46 and 49 of he Electricity (Supply) Act, 1948 in view of a Division bench decision of this Court rendered in case of Bihar Chambers of Commerce, reported in 1993(1) PLJR 36 and in case of BSEB Vs. Bihar 440 Volt Vidyut Upbhokta Sangh, reported in 1997(11)SCC 380. 6. The main plea of the petitioner is that as his unit is a new industrial unit having commenced its supply on 15.4.1997 was enjoying exemption of AMG charge much prior to the meter getting burnt about 12.7.2001. The petitioner in his support has also relied upon a decision of Apex court rendered in case of K.D. Industries Vs the State of Bihar, reported in 2001(4) SCC 210 and in case of M/S Mahabir Petro Products Vs BSEB and others, reported in 2002(1) PLJR 213. He further - 4 - submits that raising of bill on the basis of clause 16.8 of the Tariff notification, prima facie, is in violation of clause 3(C) and 6 of the agreement between the parties, which provides for billing on basis of either average consumption of preceding 3 months or corresponding 3 months of previous year. 7. Learned counsel appearing for the Board submits that the Division Bench of this Court in case of Bihar Chambers of Commerce and Bihar State Electricity Board and others, reported in 1993(1) PLJR 36 has upheld the validity of clause 16.8. Again clause 16.8 of 1991 Tariff notification dated 26th August, 1991 is akin to clause 16.8 of Tariff contained in Notification No. 430 dated 21.6.1993. According to him, supply of electricity began on 15.4.1997 and petitioner was liable to pay the charges on the basis of 1993 tariff. Furthermore, on intimation of petitioner in the month of July, 2001 that his meter has got burnt, the Inspecting team made inspection of the spot and found that upper part cover consisting of mode, reset function, optical post buttons and seals of the electronic trivector meter were detached from the main part of the meter and were lying in the meter box, apart from other facts as recorded in the inspection. Learned counsel for the Board further states that bill for the month of July and August, 2001 were issued on minimum monthly guarantee charges. It is further stated that other H.T. consumers is required to pay its electricity bills under the Tariff and agreement for the energy consumption, subject to restriction of electrical charges as provided under clause 15(2) of the Tariff. Referring to para 16 of the counter affidavit, he states that even if the petitioner is charged for these - 5 - two months on basis of average consumption on account of its meter being burnt, even then the petitioner ultimately would have to make payment of shortfall in consumption of the minimum guaranteed units at the ends of the financial year 2000-01, (if the charges on the basis of said average consumption are less than the monthly minimum guarantee charges). Being a HT consumer, it is liable to pay the bill raised by the Board towards Annual Minimum Guarantee charges which AMG bill is raised so as to meet the shortfall in consumption of minimum guarantee units with the option to it to claim remission under Clause 13 of the said HT Agreement. 8. Learned counsel for the Board submits that judgment rendered in case of M/s Mahabir Petro Products Vs. Bihar State Electricity Board and others, reported in 2002(1) PLJR 213 has been set aside by LPA bench of this Court vide order dated 30.9.2005, passed in LPA No. 1469 of 2001. 9. The main submission of petitioner in this case is that a Unit which is enjoying exemption under the Industrial Policy, 1995 from payment of minimum monthly guarantee charge would not be liable to be charged on the basis of consumption of minimum monthly guarantee units if the meter has become defective, burnt or stopped. The bill can be assessed either on basis of average consumption of previous three months or the corresponding three months of the previous year which also forms two of the three options referred to in clause 16.8 of the said tariff itself. Such calculation would be also in conformity with the agreement. He further submits that if the aforesaid analogy is not followed - 6 - and bill is raised on basis of MMG and calculations so arrived, is higher than the two units under 1st two options, then exemption allowed to the new Unit under the 1995 policy would become meaningless. He states that the Board ought to have raised dispute under section 26(6) of the Indian Electricity Act, 1910, if there is a dispute relating to the reading recorded by a defective meter. 10. I find it difficult to accept the submission of learned counsel for the petitioner, however attractive it may seem at the first instance. As the Tariff notifications are framed by virtue of powers conferred upon the Board under sections 46 & 49 of the Electricity Power (Supply) Act, 1948, the same would be part of the statute. A Division bench of this Court in case of Bihar Chamber of Commerce and another Vs. the State of Bihar and others, reported in 1993(1) PLJR 36, relying upon judgment of Hon'ble Apex court in case of Hukum Chand etc Vs Union of India and others, reported in AIR 1972 S.C. 2427 has held that power vested under section 49 of the 1948 Act in the Board for fixing uniform tariff is like making subordinate legislation. 11. Clause 15.2 of 1991 Tariff notification states that Minimum base Charge would be realizable from the HTS/EHT and RTS consumers as per the appropriate tariff in respect of both, the demand charge and energy charge. The provision of Clause 16.8 of 1991 Tariff notification and 16.8 of 1993 Tariff notification is same and it provides for a situation when meter has either gone defective or burnt or stopped. It states that in the event of meter being out of order , the consumptions for that month/months shall be assessed on average - 7 - consumption of previous 3 months from the date of meter being out of order or the average consumption for the corresponding three months of the previous year or the consumption of the Minimum Monthly Guarantee whichever is the highest. Clause 16.8 of 1991 Tariff which is same as clause 16.8 of 1993 Tariff is quoted herein below:- 16.8. Billing when meter has either gone defective or burnt or stopped.—In the event of meter being out of order i.e. burnt/stopped or having ceased to function for any reason during any month/months, the consumptions for that month/months shall be assessed on average consumption or previous 3 months from the date of meter being out of order or the average consumption for the corresponding three months of the previous year or the consumption of the Minimum Monthly Guarantee whichever is the highest. Such consumption will be treated as actual consumption for all practical purposes until the meter is replaced/rectified. Fuel surcharge, power factor surcharge ad electricity duty shall be levied on consumption so calculated. 12. Clause 16.8 provides a mode of calculation when one does not know actual units consumed as the meter has become defective, or got burnt or has stooped. Clause 16.8 would not affect the exemption of MMG or Minimum annual guarantee if the Unit is otherwise eligible for the same in normal times when meter is functioning properly and reading of units consumed are recorded correctly. The aforesaid clause cannot be said to be deterrent to the consumer. In case, the consumer has consumed more than MMG unit in that period, it would not be a loser but a beneficiary. Furthermore, the petitioner can also exercise its option to claim remission under clause 13 of the agreement, if he qualifies for the same. The Board in paragraph 16 of the counter affidavit has stated that petitioner can exercise option of remission under clause 13 of agreement. Furthermore, as this Court has already observed that the tariff framed u/s 49 of Electricity Supply Act 1948 is a part of statute, the agreement - 8 - arrived at between consumers and on behalf of Board, will be subject to restriction under clause 15.2 and 16.8 of the Tariff notification. 13. The judgment rendered in case of M/s Mahabir Petro Products Vs. Bihar State Electricity Board and others, reported in 2002(1) PLJR 213 would not be of much help of the petitioner as the same has been set aside by the LPA court vide order dated 30.9.2005. It would be relevant to quote relevant part of order dated 30.9.2005 which reads as follows:- The parties are expressly in agreement that this appeal may be disposed of in the above terms. Accordingly, the judgment and order passed by the learned Single judge is set aside and the writ petition and this appeal are disposed of in the above terms. In case a claim of remission is filed by the petitioner within one month from today, the competent authority shall not reject it on the ground of limitation alone. It may further be observed that if such an application is made, the court expects that it will be disposed of without any undue delay and preferably within six weeks from the date of filing of the claim. 14. The case of M/s K.D. Industries Vs BSEB, reported in 2001(4) SCC 210 would also be of no help of the petitioner, as in the aforesaid case the issue involved was whether benefit of exemption of AMG would be applicable to LTIS consumer or not. In the instant case, the admitted position is that the meter was out of order. There is no dispute whether the meter is correct or not. As such, the Board may not be obliged to refer the dispute under section 26(6) of the Act. 15. In the backdrop of the aforesaid discussions, I do not find that petitioner has made a case for grant of exemption in the bill for month of July and August, 2001 from being charged on basis of Minimum Monthly Guarantee units on basis of Clause 16.8 of 1993 tariff - 9 - notification framed u/s 49 of the Electricity (Supply) Act, 1948. The writ petition is thus dismissed but with liberty and option to the petitioner to raise point of remissions under clause 13 of the HT agreement, if it qualifies so. AFR/Shashi. (Samarendra Pratap Singh,J.)