Jharkhand State Electricity Board through Electrical Executive Engineer vs State Of Jharkhand

Gautam Kumar Choudhary, J

Instant writ petition being W.P.(C) No.5526 of 2004 has been filed for quashing the order dated 23.02.2004 passed by the Consumer Grievance Redressal Forum (hereinafter as Forum), JSEB, Ranchi in Case No. 57/2003 and 55/2003.

The petitioner Board in W.P. (C) No. 5526 of 2004, is aggrieved by the order of the Forum dated 23.02.2004 under which:

a. Notice dated 25.09.1997, issued by respondent no. 2 in terms of Clause 9 of the agreement, has been accepted to be valid.

b. In view of the above service of notice HT agreement stood determined on 30.09.1998 and consequently, no AMG bill to be raised after the said date.

c. The order by which revised final bill dated 27.5.2003 was struck down.

The undisputed fact, as emerge from the pleading of the parties, is that Arya Steel Private Ltd (ASP for short) got HTIS-I (11KV) mode of tariff under Consumer No. TT 183 for a contract demand of 300 KVA from the Jharkhand State Electricity Board (for short Board) , for energy requirement of Rolling Steel Plant vide agreement in the year 1974.

ASP claimed to have served a notice dated 25.09.1997 upon the Board for termination of the agreement w.e.f. 30.09.1998, which was later disputed by the Board.

Line was earlier disconnected on16.10.1998 and was restored on 17.12.1998 after deposit of Rs.1.5 Lakh in pursuance of the order passed in CWJC No. 2899 of 1998 [R]. ASP continued to use electricity.

Dispute is about the applicable rate of tariff. As per the case of ASP, it is liable to pay tariff for high tension connection till

09.1998 as mill had stopped functioning and electricity consumed thereafter was only for security and other such ancillary purpose.

Line was finally disconnected on 26.02.1999.

After final disconnection, Board raised final bill on 24.12.1999 for a total sum of Rs.31,87,309/- from the month of October, 1998 based on the Minimum Guarantee Demand Charges i.e. 225 KVA (75% of 300 KVA contracted demand) which was challenged by ASP in CWJC No. 442 of 2000(R). Court disposed of, the writ on

07.2001 with direction to approach the concerned Superintending Engineer.

Superintending Engineer vide order dated 05.05.2003, rejected the representation submitted by ASP.

Aggrieved by the said order, ASP filed Case No. 57 of 2003 before the Consumer Grievance Redressal Forum, JSEB, Ranchi (for short Forum), challenging the order dated 05.05.2003 passed by the Electrical Superintending Engineer and for other reliefs including for quashing the bill dated 27.05.2003.

ASP also filed another Case No. 55 of 2003 before the Forum, challenging the same bill dated 27.05.2003 for its fuel surcharge, AMG and other components raised for the period 1997-98 and September, 1998 onwards.

Forum disposed of, both these cases by a common order dated 23.02.2004.

Said Forum framed the following main issues:

i. Whether the notice dated 25.09.1997, under Clause 9, posted by “registered post” and also delivered “by hand” in the office of the Electrical Superintending Engineer, Ranchi Circle, is acceptable?

ii. Whether disconnection on 16.10.1998 and 26.02.1999 should be considered to be due to non-payment of dues?

iii. Whether the final bill dated 27.05.2003 amounting to Rs.25,95,920/- is correct?

Learned Forum decided the issue of service of notice in favour of the consumer/respondent no.2 by holding that the notice dated 25.09.1997 has been duly served upon the Electrical Superintending Engineer by registered post as well as by hand.

On the second issue of disconnection on 16.10.1998 and 26.02.1999 should be considered due to non-payment of dues. It is further held that a fresh connection was not permissible, as there was no provision in the tariff for use of light in the factory premises for the purpose other than running the plant and industry which is charged at commercial tariff.

Since the agreement had been declared to be determined on 30.09.1998, therefore, the electricity used by ASP after 30.09.1998, was held to be for the purpose of security and lighting and, therefore, had to be charged at commercial tariff (CS-III) for a connected load of 35.40 KVA.

Regarding plea of fresh connection to be taken by ASP after Rolling Mill stopped functioning, it was held that it cannot be given in the same premises till the previous outstanding dues were cleared. In such circumstance, ASP was precluded from taking fresh connection as the issue of outstanding dues remained pending.

With regard to third issue, learned Forum recorded a finding that the Board had raised final bill in violation of the Court’s proceeding and also against the order of High Court.

Board in WP(C) No. 5526 of 2004, has assailed part of the order of the Forum wherein the notice of disconnection has been held to be valid, consequently HT Agreement between the Board and ASP is deemed to have terminated from w.e.f. 30.09.1998. Resultantly applicable tariff after the said date is to be based on CS-III Tariff.

It is argued by learned counsel for the petitioner Board that the consumption was as per the High Tension agreement and, therefore, respondent no. 2 was liable to pay the bill of energy consumed.

It is argued by Mr. Rajiv Ranjan, learned Senior Standing Counsel, appearing for the Board in WP(C) No. 5526 of 2004 that even if it is assumed that the notice for disconnection of HT agreement was served on 25.09.1997, there cannot be a deemed disconnection as ASP continued to consume electricity till the time of its final disconnection on 26.02.1999. Tariff is applicable as per the category of connection, and as HT connection continued, therefore, ASP was liable to pay the bill accordingly. There cannot be a deemed change of connection from HT Tariff to that under CS-III category.

The respondent continued to consume electricity as per the old connection and, therefore, he was liable to pay the same. Specific reference is made to order passed in C.W.J.C. No. 2899 of 1998 which was filed by the consumer for restoration of connection and the same was allowed on deposit of Rs.1,50,000/- as against the original demand made.

FINDING(S)

Bills are charged for energy consumption as per the category under which the connection is given. Therefore, issues at hand revolve around two fundamental questions. First, when did the agreement end and second was the nature of connection that continued thereafter?

A writ court does not sit in appeal over the order impugned, but is confined to examination of decision-making process. It has been held in Rengali Hydro Electric Project v. Giridhari Sahu, (2019) 10 SCC 695

An erroneous decision in respect of a matter which falls within the authority of the Tribunal would not entitle a writ applicant for a writ of certiorari. However, if the decision relates to anything collateral to the merit, an erroneous decision upon which, would affect its jurisdiction, a writ of certiorari would lie. See Parry & Co. Ltd. v. Commercial Employees Assn. [Parry & Co. Ltd. v. Commercial Employees Assn., (1952) 1 SCC 449 : AIR 1952 SC 179] The scope of writ of certiorari came in for an elaborate consideration by this Court in T.C. Basappa v. T. Nagappa [T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 : (1955) 1 SCR 250] . Therein, this Court, inter alia, held as follows: (T.C. Basappa case [T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 : (1955) 1 SCR 250] , AIR p. 444, paras 7, 9 & 10)

“7. … The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior court does not exercise the powers of an Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person (vide per Lord Cairns in Walsall Overseers v. London and North Western Railway Co. [Walsall Overseers v. London and North Western Railway Co., (1878) LR 4 AC 30 (HL)] , AC at p. 39.)

Learned Forum in its finding on issue (a) with regard to service of notice, in para 9-10 has assigned specific reasons for service of notice on 25.09.97. Notice was sent, both by registered post as well as in person on endorsement by the Executive Engineer. Further, if the notice was not served, there was no reason for disconnection of electricity on 30.09.1998, which was, therefore, restored under the order of the court. Therefore, there cannot be any valid reason to differ with this finding.

On the second issue, once it is established that ASP had served notice validly for disconnection on 25.09.1997, with effect from 30.09.98 the agreement under which the connection was taken shall be deemed to have lapsed from the said date. Supply of energy thereafter, cannot be, in terms of the agreement but as per the purpose for which the connection was continued. There is no error in the finding of the Forum that agreement stood determined with effect form 30.09.98 and, therefore, tariff cannot be charged under the category of high tension. There was other collateral evidence, like consumption pattern of energy as reflected in the Bill, that drove the Forum to the conclusion that subsequent to 30.09.1998, electricity was not consumed for running the rolling mill. As the fresh connection could not have been taken, because of the pending electrical dues, therefore, ASP could not apply for fresh connection, and drew electricity for security and other ancillary purposes under their existing connection. Finding of the forum cannot be said to be at fault on this count also.

For the reasons as discussed above, I do not find any infirmity so far, order impugned in WPC No.5526 of 2004 is concerned. Learned Forum has assigned cogent reasons while rejecting the plea of the Board and accordingly the order passed by the Forum is upheld and the writ petition stands dismissed. Pending I.A., if any, stands disposed of.

In W.P.(C) No. 4036 of 2015 filed by M/s Arya Steels Pvt. Limited wherein prayer has been made for quashing Letter No. 3709 dated 11.08.2015 by which a revised bill on account of fuel surcharge along with DPS amounting to Rs.49,71,736/- for the period July 1993 till December 2003 for the electrical connection No. TT 183 has been raised.

It is argued by learned Sr. counsel for the petitioner in WP[C] No.4036 of 2015 that the instant Writ Petition, the prayer for quashing the bill is on two counts:-

First is the Bill which has been raised under the head of fuel surcharge;

Second is with respect to delayed payment surcharge.

In this regard, it is submitted that in pursuance to the order passed by this Court on 19.02.2016, the principal amount of fuel surcharge has been paid by paying a sum of Rs.12,48,851/-. The receipt of payment has been filed along with the supplementary affidavit dated 14.03.2016.

It is submitted that this payment was in excess of balance principal amount for fuel surcharge and the excess amount needs to be refunded.

So far as DPS is concerned, it is submitted that in view of the judgment reported in LPA No.305 of 2015 and its connected matters reported in 2024 SCC OnLine Jhar.3269 wherein it has been held that the question of delay in payment of fuel surcharge did not arise, as it was being paid from time to time, and consequently Board was never deprived of fuel surcharge and, therefore, the bill under the head of DPS is liable to be set aside.

It is further argued that delay if any, was on the part of the Board in raising the revised bill. It is contended that both the cases namely Case Nos.55/2003 and 57/2003 were in reference to the dispute regarding bills raised by the Board, was decided in favour of the petitioner vide order dated 23.02.2004.

It has been held that the bill dated 27.05.2003 to be wrong and remitted back the matter to respondent no.3 to consider the case of the petitioner-Company and revise the bill accordingly.

Pursuant to the said order, General Manager-cum-Chief Engineer computed the total amount of remission to which the petitioner was entitled was for Rs.8,17,639/- for the years 1995-96, 1996-97 and 1997-98. No refund was made to the petitioner in view of pendency of WPC No.5526 of 2004.

Petitioner had also made a security deposit with the Board of Rs.4,33,580/-. Petitioner is entitled to get refund of interest on the said amount in terms of Section 47(iv) of the Electricity Act 2003. This issue has been settled that petitioner is entitled to get the interest by decision of this Court in WPC No.1091 of 2006 and the order has attained finality on disposal of LPA No.305 of 2015 and connected matters reported in 2024 SCC online Jhar 3269, wherein it was held that the Board was never deprived of fuel surcharge as the consumer kept paying at old rate as per direction of this Court.

It is argued by the learned counsel on behalf of respondent-Board that so far fuel surcharge is concerned, it is regarding the arrear of fuel surcharge for the period 7/93 to 2/99 which has been included in the bill of 24.12.1999.

FINDING

There is no dispute whatsoever that Board is entitled to get the fuel surcharge. But, the question is that if the bill raised for fuel surcharge is in accordance with the law settled by this Court in L.P.A. No.305 of 2015?

Further, the second issue that falls for consideration is, if the Petitioner was liable to pay the DPS for delay in payment.

There cannot be any doubt that DPS can be charged if there was any delay on the part of the Petitioner in making the payment to the Board.

For the reasons discussed in WPC-5526 of 2004, the finding and order dated-23.02.2004 passed by the Consumer Dispute Redressal Forum has been upheld. In the said order the final bill dated 27.05.2003 was held to be wrong, and consequently direction was made to revise the bill in the light of the observations made therein.

When the bill dated 27.05.2003 raised was found to be defective and the bill under the heading of fuel surcharge is also not in accordance with ratio laid down by the Division Bench of this Court, in that circumstance the petitioner cannot be held liable for delay in payment of bill. If the bill has not been properly worked out, consumer cannot be held responsible for any delay in payment.

Further, under the direction of this Court, the petitioner had also paid fuel surcharge, to the tune of Rs.12,48,851/-.

In the result:

a. The impugned bill dated-11.08.2015 is quashed.

b. Thus, Board is entitled to get fuel surcharge as per the ratio laid down by the Division Bench of this Court in 2024 SCC OnLine Jhar 3269, but it cannot claim DPS over the said amount

c. The respondent-Board is directed to revise the bill in the light of the judgment passed by the Division Bench of this Court in LPA No.305 of 2015.

Writ  Petition  being  WP  [C]  No.4036  of  2015  is accordingly allowed. Pending I.A., if any, stands disposed of.