IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12790 of 2002 M/S JAISAL POLY PLAST, a partnership firm having its factory at Sabalpur, Didarganj, Patna City appearing through its partner, Ashok Kumar Salampuria, S/o Shri K.L. Salampuria, resident of Exhibition Road, P.S. Gandhi Maidan, town and district- Patna… Petitioner Versus 1. BIHAR STATE ELECTRICITY BOARD, Vidyut Bhawan, Bailey Road, P.S. Kotwali, town and district- Patna. 2. Financial Controller ( Revenue), Bihar State Electricity Board, Bailey Road, P.S. Kotwali, town and distt. Patna. 3. The O.S.D. (Law), Deptt. Of Revenue, Bihar State Electricity Board, Bailey Road, P.S. Kotwali, town and distt. Patna. 4. Electrical Executive Engineer, Fatwa Electric Supply Division, Fatwah… Respondents. ----------- For the petitioner:- Mr. S.S. Rekhi, Advocate For B.S.E.B. : Mr. Vinay Kirti Singh,Advocate --- 8. 9.3.2010 Heard learned counsel for the petitioner and learned counsel for the Bihar State Electricity Board. The petitioner seeks quashing of the order dated 11.1.2002 ( Annexure-1 ) passed by respondent No.2, Financial Controller (Revenue), Bihar State Electricity Board, by which he has rejected the claim of the petitioner to grant remission and disposed of the representation filed by the petitioner. This is the second round of litigation in the present matter. Earlier, the petitioner had filed C.W.J.C. No.13415 of 2001, which was disposed of by order dated 23.11.2001 in view of the agreement of the parties that the writ petitioner shall approach the Financial Controller - 2 - ( Revenue ) Electricity Board along with the relevant materials and documents in support of his claim within two weeks and the Financial Controller shall consider the same and finally decide it with reasons/speaking order. Pursuant to the aforesaid direction, the impugned order dated 11.1.2001 has been passed. The petitioner claims to be a registered Small Scale Industry which commenced production on 1.6.2000. He applied for a connected load of 50 H.P. under LTIS tariff for running Poly Plast Industry, for which sanction was accorded by the authorities of the respondent-Board. The petitioner also entered into an agreement with the Board in that regard. Under clause 8 of the said agreement, the same was valid for a minimum period of two years and thereafter on a year to year basis until it was terminated in accordance with the provisions of the said agreement. The petitioner claims that although the electrical supply was given to the petitioner in the month of April, 2000 but he was put in heavy loss due to low voltage below the statutory limits. It is further claimed that the meter readings were taken for various months from April to August,2000 and - 3 - a comment was recorded by the Junior Electrical Engineer that the machine did not operate due to extremely low voltage. Thereafter, the actual readings were recorded from November, 2000 to May, 2001 in which the index was advanced and recorded but without any scientific study and without any test, he arbitrarily recorded that the meter was defective. On 19.3.2001 the electrical supply of the petitioner premises was disconnected for non- payment of the bills to the respondent-Board. The petitioner further claims that he applied for benefit of the Industrial Policy Resolution of the State Government for exemption from the payment of minimum guarantee for a period of five years from the date of commencing of supply from 3.4.2000, but the respondents did not grant exemption despite the unit being fully qualified for the same. In the said circumstances, the petitioner moved this Court by filing C.W.J.C. No.1345 of 2001, which was disposed of with the directions aforesaid. Thereafter the impugned order dated 11.1.2002 was passed by the Financial Controller ( Revenue), Electricity Board. In the aforesaid order, the Financial Controller ( Revenue ) after - 4 - recording the aforesaid facts noted that the billing has been done as per the provisions on the basis of clause 16.8 of the Board Tariff,1993, which states that 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 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‟s consumption or 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; operational surcharge, power factor surcharge and electricity duty shall be levied on the consumption so calculated. After noting the fact that in the present matter, the meter was defective from the date of connection, i.e., 3.4.2000, up to the date of disconnection, i.e., 19.3.2001, the Financial Controller came to the conclusion that the billing has been rightly done on the basis of consumption as provided under clause 16.8 of the Board Tariff, - 5 - 1993 and for the said reason rejected the claim of the petitioner to grant remission and disposed of the representation. Learned counsel for the petitioner submits that the petitioner was entitled to the benefits of the Industrial Policy, 1995 as the Unit had commenced commercial production on 1.6.2000, which is prior to the last date,i.e.,31.8.2000 as per the Industrial Policy Resolution, 1995. It is urged that the provisions of the Industrial Policy with respect to exemption have to be construed liberally in favour of the Industrial Unit and no technical ground could be raised to defeat the claims of such Industry for the benefit of exemption under the Industrial policy. Applying the said principle, learned counsel submits that the petitioner ought to have been given the benefit of exemption from Minimum Guarantee Charges under the Industrial Policy but instead of doing so the billing itself has been made taking into account the Minimum Guarantee Charges. In support of the aforesaid proposition, learned counsel relies upon a decision of the Supreme Court in the case of State of Jharkhand & Ors. v. Tata Cummins: 2006 (3) PLJR 20 (S.C.). He - 6 - further relies upon a decision of a Division Bench of this Court in the case of M/s. S.C.I. India ltd. v. The State of Bihar & Ors. : 2002 (2) PLJR 288. The next submission of learned counsel is that there was no applicability of clause 16.8 in the case of the petitioner which is squarely covered by the provisions of Section 26 (6) of the Indian Electricity Act, 1910, which provides that in case of any dispute or difference as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct. It is urged by learned counsel that the meter was running and readings were being recorded by the officials of the Board and thus if the Board was aggrieved that the meter was not recording correctly then the only option open to - 7 - it was to approach the Electrical Inspector to determine the matter instead of the Board itself unilaterally declaring the meter to be defective and raising bills on the basis of Minimum Guarantee Charges, which even otherwise is not permissible due to the prohibition contained in the Industrial Policy. In respect of the same, learned counsel relies upon a decision of a learned single Judge of this Court in the case of Shree Plywoods (Pvt.) Ltd. v. Bihar State Electricity Board and others: 2000(4) PLJR 844, in paragraph Nos. 7 and 9 of which it has been held as follows: “7.This Court finds substance in the submission of the learned counsel for the petitioner. The present case in my opinion, is squarely covered by the aforementioned decision of the Apex Court in the case of Basanti Bai. In the said case the Apex Court on consideration of the Report of the Assistant Engineer of the State Electricity Board that one phase of the meter was not working at all, held that there was undoubtedly a dispute as to - 8 - whether the meter in question was correct one or a faulty meter and this dispute has to be decided by the Electrical Inspector whose decision will be final. The Apex Court also on consideration of the said provision held that till the decision is made no supplementary bill shall be issued threatening disconnection of supply of electricity, as the Board is not empowered to do so under the said Act. 9. Learned counsel for the Board then also tried to place reliance on clause 16.8 of the Tariff which provides that 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 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 - 9 - 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. Operational surcharge power factor surcharge and electricity duty shall be levied on consumption so calculated. This Court fails to appreciate as to how the said provision shall at all be attracted. Learned counsel for the Board has tried to refer to the heading of the said clause which reads „Billing when meter has either gone defective or burnt or stopped‟, in order to contend that in the present case the admitted fact is that the meter is defective and, as such, according to him, the Board under the said clause is competent to raise bill on the basis provided therein. This Court is unable to accept the said submission of the learned counsel for the Board. It is by now well settled that heading of a provision will not control or govern the contents of the - 10 - provision itself. The provision contained in clause 16.8 of the Tariff only talks of the event of meter being out of order i.e. burnt/stopped or having ceased to function for any reason and, thus, there is no scope for covering such cases where in course of inspection it is found that due to any reason the consumption was being recorded less in the meter. It is not a case where the meter has been burnt or completely stopped or ceased to function in which case the method of reading of consumption of the electricity can be calculated in pursuance to the said clause. However, in a case where it is alleged that the recording of consumption is less, in my opinion, there cannot be any difficulty to raise the bill of consumption of electricity on the basis of actual recording in the meter subject to final decision of the Electrical Inspector on reference being made to him either by the Board or by the consumer, whoever, - 11 - feels aggrieved.” Learned counsel also relies upon a decision of the Supreme Court in the case of M.P.E.B. and others v. Smt. Basantibai: 1988 S.C. 71, in relevant paragraph No.10 of which it has been held as follows: “10. In the instant case it appears from the report of the Assistant Engineer of the State Electricity Board that one phase of the meter was not working at all, so there is undoubtedly a dispute as to whether the meter in question is a correct or a faulty meter and this dispute has to be decided by the Electrical Inspector whose decision will be final. It is also evident from the said provision that till the decision is made no supplementary bill can be prepared by the Board estimating the energy supplied to the consumer, as the Board is not empowered to do so by the said Act.” In this connection he also relies upon a decision dated 7.10.1994 of a Division Bench of this Court in C.W.J.C. No.3000 of 1994: M/s. - 12 - Poddar Wire Industries Pvt.Ltd.v. Bihar State Electricity Board and ors., where a similar proposition has been laid down. It is submitted by learned counsel that the petitioner could not have been denied the benefit of the Industrial Policy on the basis of the supply having been discontinued on 19.3.2001 because the relevant date for the purpose of consideration of his claim was on 1.6.2000 when the petitioner commenced production and since the supply had not been disconnected prior to the said date the benefit of policy could not have been denied to him. In support of the same, learned counsel relies upon a decision of the Supreme Court in the case of General Manager-cum-Chief Engineer, Bihar State Electricity Board and others v. Rajeshwar Singh and others: A.I.R. 1990 S.C.706, in paragraph No.7 of which it has been held as follows: “7.We are inclined to take the view that when the firm was registered as a small scale industry on 21/ 31-1-1975 there could be no question of it being granted benefit under the Incentive Scheme prior to - 13 - that date, unless the registration was with retrospective effect. On 16.10.1975 the supply stood disconnected. However, the minimum guaranteed charges were still payable by the firm and benefit to that extent would be available to the firm. Electric connection was restored on 15.6.1977. The Incentive Scheme was amended reducing benefit to a maximum of Rs.1,000/- only per year. Unless the Resolution itself so provided, the new Scheme will supersede the earlier one. From that date the benefit will accordingly be reduced until the firm completed five years of production. As we do not have materials to show that the firm was entitled to the exemption and the subsidy irrespective of its registration with the Industries Department, we are inclined to hold that it would be entitled only since the date of its registration and till it completed five years of production. It will be exempted even if the electric energy supply was disconnected, provided it was still liable to pay the minimum guaranteed charges.” - 14 - Learned counsel for the Electricity Board, on the other hand, submits that the petitioner having applied for and got an electrical connection, in terms of the provisions of the agreement entered into between the parties, the said agreement would continue to apply for a minimum period of two years. It is submitted by learned counsel that despite the said clear provision twice the petitioner applied for rescinding of the said agreement, although he could not have done so within the said two years period. Learned counsel also relies upon clause 13 of the said agreement under which only for certain reasons the benefit of remission can be given but not on the ground as claimed by the petitioner. It is contended by learned counsel that the case of the petitioner is squarely covered by clause 16.8 of the Electricity Tariff and the Board has rightly raised the bill on the basis of the same. The main submission of learned counsel for the Board is that the petitioner was rightly not granted the benefit of Industrial Policy in view of the fact that he did not run his Industry for any period of time after commencing - 15 - production on 1.6.2000. It is submitted that on 19.3.2001, the Board was compelled not to supply the electricity due to non-payment of the bill that was raised and since then the petitioner never made any attempt to run his industrial unit and in the said circumstances he cannot claim the benefit of Industrial Policy which is only meant for such Industries, who run the Industry in the State at least for the entire period during which the exemption is claimed under the Industrial Policy. It is urged by learned counsel that the purpose of granting exemption under the Industrial Policy is to encourage industrial production so as to bring industrial prosperity to the State and the authorities do not merely grant exemption to any person for oblique purpose when the said person has no intention to run the Industry for the benefit of the State but somehow or the other wants to get exemption under the Industrial Policy. In support of the aforesaid proposition, learned counsel for the Board relies upon a decision of a learned single Judge of this Court, (Aftab Alam, J. as his Lordship then was) in the case of M/s. Jayanti Industries v. Bihar State - 16 - Electricity Board & Ors. : 2002 (4) PLJR 400, in paragraph No.6 of which it has been held as follows: “6. In this assumption, however, the petitioner was clearly wrong. The exemptions under the Industrial Policy, including the exemption from payment of A.M.G. charges, are allowed with the object to increase the industrial production and to bring industrial prosperity to the State. If the petitioner was not able to run the „expanded‟ industry even for the full period of the agreement, the firm was clearly not entitled to any exemption, at least for the remaining period of the contract. Taking any other view would be contrary to the aims and objects of the Industrial Policy and also encourage many unhealthy practices; for example, a unit might get exemption as being newly set up or on the basis of expansion and after a few months may close down or go back to its old position and still claim exemption for a full period of five years as provided in - 17 - the Industrial Policy.” It is submitted by learned counsel for the Board that once it is accepted that the petitioner Unit was not entitled to the benefit of exemption under the Industrial Policy being not a bona fide Industry then irrespective of any other fact the Unit would be liable to pay at least the Minimum Guarantee Charges in terms of the agreement which it had entered into with the Board. In the said circumstances, the question of actual consumption being much less than the M.G. would be wholly irrelevant. On a consideration of the submissions of learned counsels for the parties, this Court finds that the petitioner having commenced Industrial production on 1.6.2000 would normally have been entitled to the benefits of the Industrial Policy, 1995, provided it is found that there was a bona fide intention to continue the Industry not only for entire period of five years but on a long term basis. In the present matter, the petitioner having commenced production on 1.6.2000 did not continue the industry after disconnection of the electrical supply. It does not appear from the - 18 - materials on the record that any attempt was made by the petitioner to run the said Industry either by applying to the Board or before this Court for appropriate orders in that regard. Even in the earlier writ petition, the petitioner merely allowed the same to be disposed of on agreement that the matter should be referred to the Financial Controller of the Board for disposal of the claim and even after the claim was rejected by the impugned order dated 11.1.2002, no steps were taken by the petitioner to ensure that at least the Industry of the petitioner keeps running so that it can avail of the benefit of the Industrial Policy. Such conduct on the part of the petitioner shows that the petitioner was not at all serious about running the Industry. In the said circumstances, it cannot be said that on account of commencement of production on 1.6.2000, the petitioner would be automatically entitled to the benefit of exemption under the Industrial Policy, 1995. This Court has observed in the case of M/s. Jayanti Industries (supra) that a person cannot be allowed the benefit of Industrial Policy, if he has not been able to run the industry for the full period of the agreement and is not entitled to any - 19 - exemption, at least for the remaining period of the contract. For the said reasons, the rejection of the representation of the petitioner in that regard does not call for any interference by this Court. Once the aforesaid proposition is accepted that on account of its own conduct the petitioner would not be entitled to the benefit of exemption under the Industrial Policy, the question remains as to whether the Board ought to have raised the bills in terms of clause 16.8 of the Board Tariff or the matter should have been referred to the Electrical Inspector Under Section 26 (6) of the Indian Electricity Act; but the same becomes academic because in terms of the agreement the petitioner Unit would be liable to pay at the very least on the basis of the Minimum Guarantee Charges with respect to LTIS Unit of 50 H.P. irrespective of the fact that the actual consumption may have been less than the same. Thus, the whole claim of the petitioner that the billing should have been on the basis of the actual consumption recorded by the meter or as may have been decided by the Electrical Inspector would fall to the ground, as the Board itself has - 20 - raised the billings on the basis of the Minimum Guarantee Charges, which would be applicable once it is found that the petitioner was not entitled to the benefit of exemption of A.M.G. under the Industrial Policy. The claim of the petitioner that the Board was not supplying the Electricity with proper voltage can not be accepted as an absolute because of a single remark on one occasion. In view of the aforesaid discussions, this Court does not find any merit in the writ petition and it is, accordingly, dismissed. VPS ( Ramesh Kumar Datta, J. )