CIVIL WRIT JURISDICTION CASE No.2101 OF 1995 ***** In the matter of an application under Articles 226 and 227 of the Constitution of India. ***** MC DOWELL AND CO. LTD., A Company registered under the Indian Companies Act, 1956 and having its registered office at 3, Second Line Beach, Madras in the State of Tamil Nadu and having one of its distilleries at Hathidah, P.S. Hathidah, in the district of Patna through Shri Lalit Mohan Sharma, son of Shri Ram Kishore Sharma, Vice-President, Mc Dowell and Co. Ltd., and authorized signatory and constituted Attorney, residing at the Campus of Mc Dowell and Co. Ltd., Hathidah, P.S. Hathidah, district- Patna. …… Petitioner. Versus 1. THE BIHAR STATE ELECTRICITY BOARD, Vidyut Bhawan, Bailey Road, Patna through the Chairman-cum-Managing Director. 2. The General Manager-cum- Chief Engineer, Central Area, Bihar State Electricity Board, Patna. 3. The Electrical Superintending Engineer, Patna Electric Supply Circle, Patna. 4. The Electrical Executive Engineer, Commercial and Revenue Division, Patna, Electrical Circle, Patna. 5. The Electrical Executive Engineer, Electrical Supply Division, Barh, District-Patna. 6. The Assistant Electrical Engineer, Electrical Supply Subdivision, Hathidah, P.S. Hathidah, District-Patna. 7. The Revenue Officer, Patna Electrical Circle, Patna. ….. Respondents. ----------- For the Petitioner: Mr. Satyabir Bharti & Mr. Suraj Samdarshi, Advocates. For the Respondents: Mr. Vinay Kirti Singh with Mr. Vijay Kumar Verma, Advocates. ****** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ****** S.K. Katriar, J. This writ petition has been preferred for a direction to set aside or modify the electricity bill dated 11.3.1995 (Annexure-3), issued by the Bihar State Electricity Board (hereinafter referred to as the „Board‟), to the petitioner, for the period September 1992 to January 1994. 2 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. It has a chequered history and has been agitated before this Court on earlier occasions also. The petitioner is a public limited company and is engaged in manufacture and marketing of liquor. One of its units is at Hathidah, Mokama, District- Patna. It had entered into an agreement with the Board for supply of 400KVA electricity for its manufacturing unit. On the petitioner‟s request, the contracted demand was raised to 575KVA, as per the agreement dated 29.1.1991, though the agreement became operational with effect from 24.9.1991. In other words, the actual increase was given effect with effect from 24.9.1991. 2.1) The meter to measure supply of electricity to the petitioner‟s unit was burnt on 20.9.1992, remained non-functional till the end of January 1994, and the new meter became functional with effect from February 1994. The Board issued current bills for the periods 20.9.1992 to January 1994, as per the third option contained in Clause 16.8 of the Tariff Notification, published in the Bihar Gazette (Extra-ordinary), on 23.6.1993. As stated hereinabove, the new meter was installed in February 1994, and the Board started issuing current bills as per the new meter. The bill dated 12.6.1994 included the bill for the month of May 1994, and also included additional demand for the period in question, namely, September 1992 to January 1994. The petitioner challenged the additional demand by preferring C.W.J.C. No.5539 3 of 1994. The petitioner‟s challenge was based on the plea that clause 16.8 of the Board‟s Tariff laying down the procedure for billing when meter has either gone defective or burnt or stopped, did not permit raising of fresh demand on the basis of three months average consumption after the installation of a properly functioning meter. The Board realized its mistake that the additional demand in the bill was on erroneous basis and, therefore, withdrew the same which rendered C.W.J.C. No.5539 of 1994 infructuous. 2.2) After countermanding the additional demand in the bill dated 12.6.1994 for the past period the Board raised a revised demand for the same period (September 1992 to January 1994), and issued fresh bill dated 18.8.1994. The revised demand as contained in the bill dated 18.8.1994 was challenged in C.W.J.C. No.6784 of 1994. After examining Clause 16.8 of the Tariff, the Division Bench came to the conclusion that it is clear from a plain reading of the Tariff that the Board had no option or discretion in the matter and it is obliged to raise bills on the basis of that mode (out of the three) which would, in a given case, give rise to the highest demand. The Division Bench proceeded to conclude that the bill in the present case has to be raised as per the second mode of Clause 16.8 of the Tariff, and finally concluded by stating that the average consumption for the months of June, July and August 1991 has to be taken into account. The bill dated 18.8.1994 was quashed, with the liberty to the Board to raise fresh bill in 4 accordance with law and the observations made therein. The Division Bench further clarified that no correct bill for the period in question having been given to the petitioner till then, there would be no question of any delayed surcharge payable by the petitioner. It was also directed that the petitioner would be further entitled to rebate of one per cent in case the fresh bill issued as per the direction are paid within the due time. Consequently, the Board has issued the impugned bill dated 11.3.1995, whereby a sum of Rs.20,87,720.92P. has been raised marked Annexure-3 hereof, which has been challenged in the present proceeding. 3. Learned Counsel for the petitioner has challenged the mode and manner of calculation of the impugned bill. He relies on the following reported judgments: (i) Southern Petrochemical Industries Co. Ltd. Vs. Electricity Inspector & Etio and others, (2007) 5 S.C.C. 447. (ii) Bihar State Electricity Board vs. Pulak Enterprises & others, (2009) 5 S.C.C. 641. (iii) Binani Zinc Limited Vs. Kerala State Electricity Board and others, (2009) 11 S.C.C. 244. 4. Learned counsel for the respondents has supported the impugned bill. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The admitted position is that as per the earlier agreement, the petitioner and the Board had concluded the agreement for supply of 5 400KVA. This was enhanced to 575KVA as per the agreement dated 29.1.1991, and made operational with effect from 24.9.1991. In other words, the entire rights, liabilities and duties under the new agreement shall be enforced with effect from 24.9.1991. Secondly, the electricity meter to record the supply of electricity installed in the petitioner‟s factory precincts got burnt on 20.9.1992, and was replaced towards the end of January 1994. In other words, the meter was burnt and was non-functional for the period 20.9.1992 to January, 1994. Clause 16.8 of the Tariff provides for such a situation, which enables the Board to fictionally assess supply of power, and is reproduced hereinbelow: “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 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 consumption so calculated.” 6. The Tariff has been framed in exercise of powers under section 49 of the Electricity (Supply) Act 1948, and has statutory flavour. It is relevant to state that the additional demand earlier raised in the bill dated 12.6.1994 (which also included the 6 current consumption for the month of May 1994). As has been noticed by the Division Bench in its judgment dated 20.1.1995, passed in C.W.J.C. No.6784 of 1994, once the occasion arises to apply the terms of Clause 16.8 of the Tariff, the Board is obliged to calculate the fictional consumption of power as per the three modes and then determine the consumption of power as per the calculation which is the highest of the three and payable by the consumer. The additional demand contained in the bill dated 12.6.1994 was not in consonance with the three modes and the manner indicated in clause 16.8 of the Tariff and, therefore, the Board withdrew the demand. This was followed by the second bill dated 18.8.1994 which came up for consideration in C.W.J.C. No.6784 of 1994. The Division Bench noticed the error in the bill and came to the conclusion that, in order to determine the consumption of power during the period in question, had to be determined on the basis of average consumption for the months of June, July and August 1991, and was really covered by the second option. This led to the impugned bill and has come up for our consideration. 7. We are thus called upon to examine the correctness and the validity of the impugned bill dated 11.3.1995 (Annexure- 3), read with the calculation which is part of the bill, and whether or not the same is consistent with clause 16.8 of the Tariff and the observations made in the judgment dated 20.1.1995 (Annexure-2). It also arises for consideration whether the old or the new 7 agreement will govern the present case. As observed hereinabove, clause 16.8 of the Tariff has to be applied in a situation and for the period the meter has remained defective or burnt. It has now been finally concluded by the judgment dated 20.1.1995, that the second option was available to the Board to determine the average consumption of power during the period in question in view of its actual average consumption during the period June, July and August 1991. It is evident from a perusal of the calculation annexed to the impugned bill that the Board has found that the average consumption of power during the period June to August 1991 was 1,06,200 units. The bill to that extent is acceptable to the petitioner. 8. The second part of the bill needs close scrutiny which is reproduced hereinbelow:- “bl vof/k esa miHkksDrk dj lafonk Hkkj 400 ds0Hkh0,0 Fkk vkSj ehVj tys gq, vof/k esa lafonkHkkj 575 ds0Hkh0,0 gSA vr% vuqikyu vkdyu fuEu izdkj gSA 1,06,200 X 575 = 152662.5 bdkbZ” 400 It appears to us that the Board has sought to apply the terms and conditions of the new agreement for the period in question. As per the direction of the Division Bench, the average consumption of power for the period June to August 1991 has to be taken into account which falls during the period of the earlier agreement and the period of burnt meter is after the new agreement was enforced. We are, however, relieved or precluded from 8 examining the question whether or not the old agreement or the new agreement for this limited purpose will apply in the present case. This issue has been decided by the Division Bench in C.W.J.C. No.6784 of 1994, that the actual period of June to August 1991 shall be taken into account for average consumption which has to be read with the previous agreement. The judgment was delivered after fully noticing the new agreement. The judgment has attained finality and, therefore, the terms and conditions of the new agreement in so far as the determination of average consumption of power for the period in question is concerned. We are, therefore, of the view that the aforesaid portion of the bill is inconsistent with the direction in C.W.J.C. No.6784 of 1994, and is set aside. 9. The parties do not make any grievance with respect to the remaining portions of the bill and shall be paid accordingly. 10. The writ petition is accordingly disposed of after quashing the portion of the impugned bill reproduced hereinabove. It is made clear that the petitioner had received bill for the period September 1992 to January 1994 on a monthly Minimum Guarantee basis and has been paid in full. The same will be taken to be provisional bills and provisional payments. It is made clear that those payments have already been adjusted in the impugned bill. It is further made clear that while admitting this writ petition, this Court had directed that there shall be no disconnection of electric supply on the ground of non-payment provided the petitioner deposits 40% of the demand of a sum of Rs.20,87,720.92 9 minus the amount of Rs.4,00,000 (rupees four lacs) that has already been paid. Therefore, fresh demand may be issued to the petitioner after these adjustments. In view of the position that correct bill will have to be issued afresh, there would be no question of delayed surcharge payable by the petitioner. The petitioner would be further entitled to the rebate of one per cent in case fresh bill is issued to the petitioner and is paid within due time. 11. The writ petition is accordingly allowed. In the circumstances of the case, there shall be no order as to costs. (S.K. Katriar, J.) Birendra Prasad Verma, J. I agree. (Birendra Prasad Verma, J.) Patna High Court, Patna. Dated the 20th of August, 2010. S.K.Pathak/ (NAFR)