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Judgment
Prashant Kumar, J.—This writ application has been filed for the following reliefs:
(A) For issuance of an appropriate writ or writ in the nature of Certiorari for quashing the order dated 25.01.2007 passed by the Vidyut Upbhokta Shikayat Niwaran Forum in Case No. 26 of 2006 and also for quashing the order dated 19.09.2007 passed by the Electricity Ombudsman in Appeal Case No. EOJ/07/2007 whereby and where under none grant of rebates (Power Factor Rebate and Load Factor Rebate) by the Electricity Board has been held to be justified on the ground that an amount of Rs. 7491/- was not paid within time, without taking into consideration that as on the day of raising of the impugned bills for the month of January 2006, the petitioner was liable to get substantial refund in Lacs from the electricity board.
(B) For issuance of an appropriate writ or writ in the nature of Certiorari for quashing the bills of the months of January, 2006 to till date, only to the extent the Delayed Payment Surcharge have been levied against the petitioner inasmuch as there are no outstanding dues against the petitioner for any month whatsoever.
(C) For issuance of an appropriate writ or a writ in the nature of Mandamus directing upon the Respondents to revise the energy bill for the month of January 2006 to till date after granting load factor rebate and power factor rebate for the month of January 2006 to the petitioner, which he is entitled too, by virtue of 2004 Tariff, which has been denied to him illegally.
(D) For any other appropriate writ (s), order(s) or direction (s) as Your Lordships may deem fit and proper under the facts and circumstances of this case for doing justice to the conscionable."
It appears that petitioner is a Company registered under the Companies Act, 1956 and engaged in the business of induction furnace and for running of the said business, petitioner took HTSS connection from the Electricity Board having contract demand of 3240 KVA with voltage supply at 33 KV.
It then appears that the Jharkhand State Electricity Regulatory Commission (herein after referred as JSERC) had issued Tariff Order for the financial year 2003-04 and that Tariff Order prescribes three types of rebates for HTSS consumers. The aforesaid rebates are Voltage Rebate, Load Factor Rebate and Power Factor Rebate. It is also clear from the aforesaid Tariff Order that a HTSS consumer is not entitled to Load Factor Rebate, if he is in arrear.
It appears that petitioner was served with a bill for the month of December, 2005 and he was asked to pay the said bill by 21.01.2006. It is stipulated in the bill that if petitioner will pay the bill by 21.01.2006, he will be entitled for rebate of Rs. 7941/-. It is an admitted position that petitioner paid the bill on 28.01.2006 after deducting the rebate of Rs. 7941/- which the petitioner was not entitled after 21.01.2006. It further appears that the petitioner received a message from the Board that the petitioner availed rebate though payment of the bill was made by it after due date, therefore, he is liable to pay the said rebate amount i.e. Rs. 7941/-. It further appears that after receiving the information, petitioner paid the the rebate amount on 07.02.2006 vide Annexure-3. Thus, it is admitted by the petitioner that there was arrear of Rs. 7941/- from 22.01.2006 to 07.02.2006. It then appears that on 07.02.2006, petitioner received the bill for the month of January, 2006 in which rebate under the heading for Load Factor and Power Factor had not been given to the petitioner. In the said bill, petitioner was also directed to pay Rs. 13,980/- towards Delayed Payment Surcharge. Thereafter, petitioner filed a representation on 17.02.2006, claiming that he is entitled to get rebates for Load Factor and Power Factor, because he has already paid Rs. 7941/- on 07.02.2006 and there is no arrear lying against him. Accordingly, petitioner prayed that bill for the month of January, 2006 be revised, so that it can be paid within the due date i.e. 27.02.2006. It appears that when the said bill was not revised by the Board then the petitioner paid it under protest and filed another representation on 02.03.2006 praying therein that necessary adjustment of aforesaid rebate be made in the bill for the month of February, 2006. It is further stated that the bill for the month of January, 2006 has not been revised. Therefore, petitioner filed a case before the Vidyut Upbhogta Sikayat Niwaran Forum and claimed that the petitioner entitled get rebate of Rs. 2,10,661/- towards Load Factor and Rs. 37,808 towards Power Factor Rebate. In that application, petitioner also claimed that in the bill of January, 2006 Rs. 13,980/- had wrongly been revised towards delay payment surcharge. It appears that the Forum rejected the application vide order dated 25.01.2007 (Annexure-13). Against the aforesaid order petitioner filed appeal before Electricity Ombudsman, Jharkhand vide Case No. EOJ/07/2007. The said appeal also dismissed on 19.09.2007 vide Annexure-14. Thereafter, petitioner moved to this Court for the above mentioned reliefs.
Sri M.S. Mittal, learned senior counsel appearing for the petitioner, submits that from perusal of Annexures- 7 and 11, it is clear that petitioner was entitled to receive Rs. 11,36,793/- from the Electricity Board for the month of January, 2005 to January, 2006. Thus, it is clear that Electricity Board itself is in arrear. Under the said circumstance, if petitioner is not paid Rs. 7941/- for about 15 days then the Electricity Board is not entitled to deny the benefit of Power Factor Rebate and Load Factor Rebate to the petitioner. Thus, petitioner is entitled to get aforesaid rebates. It is further submitted that even assuming but not admitting, that petitioner was in arrear of Rs. 7941/- before issuance of bill for the month of January, 2006 then also petitioner is entitled to get Power Factor Rebate at the rate of 1%. It is submitted that the condition that a consumer with arrear shall not be eligible for above rebate is only applicable to the Load Factor Rebate. He submits that above condition is not applicable to Power Factor Rebate. Accordingly, Sri Mittal submits that at any cost petitioner is entitled to get Power Factor Rebate. He submits that it is clear that bill for the month of January, 2006 has been wrongly raised, therefore, in view of the decision of Patna High Court in Gaya Roller Flour Mills Pvt. Ltd. Vs. Bihar State Electricity Board and Others--> , the Board is not entitled to raise bill for delayed payment surcharge. Thus, bill raised by the Electricity Board for Rs. 13,980/- towards DPS is liable to be quashed.
On the other hand, Sri Rahul Kumar, learned counsel appearing for the Jharkhand Urja Vikas Nigam Limited (herein after referred as JUVNL)/Electricity Company submits that admittedly petitioner not paid the bill for the month of January, 2006 within the due date i.e. 21.01.2006. It is also admitted that the bill paid on 28.01.2006 but on that date petitioner not paid entire amount, rather it paid an amount after deducting the rebate amount i.e. Rs. 7941/-, which it was not entitled to get. Thus, petitioner is in arrear of Rs. 7941/-. Sri Kumar further submits that admittedly the petitioner paid rebate amount on 07.02.2006 and on that date it had not lodged any protest and stated that its any amount due with the Electricity Board. Accordingly, Sri Rahul Kumar submits that petitioner is now estopped from raising said objection on the ground of Doctrine of Acquiescence. It is further submitted that as per Tariff Order 2003-04, if any consumer is in arrear then he is not entitled any rebates, because in the schedule, an embargo specifically put on the entitlement of rebate, if the consumer is in arrear. Accordingly, he submits that since, the petitioner is in arrear of Rs. 7941/- from 21.01.2006 to 07.02.2006, therefore it is not entitled to rebates. Accordingly, Sri Kumar submits that there is no illegality in the bill issued for the month of January, 2006. Sri Kumar further submits that the contention of learned counsel for the petitioner that Electricity Board is in arrear of Rs. 11,36,793/- for the month of January, 2005 to January, 2006 is not correct. It is submitted that the said dispute is pending before the competent authority and same resolved after issuance of bill of January, 2006. Thus, on the date of issuance of bill there was no dues. Accordingly, it is submitted that aforesaid contention of Mr. Mittal is liable to be rejected. It is further submitted that since bill of January, 2006 was issued as per Tariff Order 2003-04, therefore, judgment of Gaya Roller Flour Mills Pvt. Ltd. (Supra) has no application in this case.
Having heard the submissions, I have gone through the records of the case.
From perusal of Annexure-1, I find that petitioner was getting Voltage Rebate, Load Factor Rebate and Power Factor Rebate. However, from perusal of the bill of January, 2006, I find that the petitioner has not been given rebates for Power Factor and Load Factor. In the said bill petitioner was also directed to pay an amount of Rs. 13,980/- towards DPS.
From perusal of counter-affidavit, it appears that aforesaid two rebates not given to the petitioner because the petitioner was in arrear of Rs. 7941/-. The aforesaid fact appears to be correct on perusal of Annexures-2 and 3, because in the bill of December, 2005 (Annexure-1), it was specifically stipulated that the petitioner was liable to pay Rs. 27,64,107/-, if the the bill amount paid after due date i.e. 21.01.2006. Admittedly, petitioner paid Rs. 27,56,166/- on 28.01.2006. It is worth mentioning that the bill for the month of January, 2006 has been issued on 07.02.2006. Thus, admittedly, on the date of issuance of bill, petitioner was in arrear of Rs. 7941/-
Schedule of Tariff Order 2003-04 provides that an HTSS consumers entitled to get three types of rebates, i.e. Voltage Rebate, Load Factor Rebate and Power Factor Rebate, at the rates mentioned in the Tariff Order. It further appears from the aforesaid Tariff Order that a consumer who is in arrear is not eligible to get rebate of Load Factor Rebate. However, no such condition mentioned, so far it relates to Power Factor Rebate. Thus, a consumer who is in arrear or not, is entitled to get Voltage Rebate at the rate of 1%, if he consumes electricity more than 85%. It is an admitted position that in the month of January, 2006, petitioner has consumed electricity more than 85% of the total load. Thus, as per Tariff Order, even though petitioner is in arrear of Rs. 7941/-, he is entitled to get rebate under the heading Power Factor Rebate. It is clear from the bill (Annexure-4) that the aforesaid rebate has not been given to the petitioner. Therefore, I find that action of the Electricity Board is against the Tariff Order 2003-04.
So far Load Factor Rebate is concerned, I am of the view that petitioner is not entitled to get the said rebate, because on the date of issuance of bill, he was in arrear of Rs. 7941/-. The contention of Sri Mittal, that on the date of issuance of bill, petitioner is entitled to get Rs. 11,36,793/- from the Electricity Board, therefore, he cannot be said to be in arrear, is not acceptable, because admittedly some dispute is pending with the Authority regarding percentage of payment of rebate from January, 2005 to January, 2006. It also appears that dispute had been resolved after the issuance of the bill for the month of January, 2006. Thus, on the date of issuance of bill for the month of January, 2006, nothing was due with the Electricity Board. Moreover, I find that petitioner had paid Rs. 7941/- on 07.02.2006 without any protest. In that view of the matter, now petitioner is not entitled to raise the aforesaid objection on the ground of Doctrine of Acquiescence.
Now, coming to the third prayer of the petitioner that Electricity Board had wrongly raised the bill towards delayed surcharge, I find substance in the submissions. It has been held by the Patna High Court in Gaya Roller Flour Mills Pvt. Ltd. (Supra) that:
"I, however, find that the Superintending Engineer has also included the delayed payment surcharge as part of the dues payable by the petitioner. It is to be noted that the Superintending Engineer found that the bill earlier given to the petitioner was raised, on the basis of a defective meter and, therefore, did not reflect the correct demand. He himself set aside that bill and made a fresh calculation of the charges payable by the petitioner. The earlier bill not having been prepared lawfully, I am unable to see how any delayed payment surcharge can be levied for non-payment of that bill. I am, therefore, or the view that the computation made by the Superintending Engineer is not correct in so far as it includes the delayed payment surcharge and to that extent it requires correction. 13. Since, in the instant case, the bill for the month of January, 2006 is required to be revised because petitioner was wrongly denied benefit of Power Factor Rebate, therefore, in view of the aforesaid judgment of Patna High Court, the Electricity Board is not entitled to raise bill towards DPS. Moreover, it is an admitted position that petitioner has already paid said amount of Rs. 7941/- on 07.02.2006.
In view of the discussions made above, I partly allow this writ application and direct the Electricity Board to give rebate to the petitioner towards Power Factor Rebate to the petitioner for the month of January, 2006. I further direct Electricity Board to return the amount collected from the petitioner towards DPS. Accordingly, I direct the Board to pay aforesaid amounts to the petitioner within two months from the date of production of this order by the petitioner. I hereby declare that petitioner is not entitled to get Load Factor Rebate in the month of January, 2006.