Nagarjuna Rice and Flour Mills vs Andhra Pradesh State Electricity Board

S. Parvatha Rao, J.—The Petitioner seeks a Writ of Certiorari or any other appropriate Writ, calling for the records of the 2nd Respondent i.e., the Assistant Accounts Officer, Electricity Revenue Office, Bhimavaram in his proceeding No. 1322 dated 29.4.1988 and quash the same etc.

The Petitioner states that he is the owner of a Rice and Flour Mill at Bhimavaram and that he obtained electricity service connection No. 1717 from the 1st Respondent-Board for supply of electrical energy to the said mill on 17.6.1963 and entered into an agreement with the Board for that purpose. He states that he leased the mill for a period of six years to one Siwala Satyanarayana effective from 1.4.1976 and that even after the expiry of the lease period, the said Satyanarayana unauthorisedly continued in occupation of the mill for some more time. He further states that during the aid period, the supply of energy to the mill was disconnected in the month of November, 1986 and subsequently the tenant Satyanarayana stopped running the mill and therefore there was no question of payment of any electrical charges or penalty thereafter. His complaint is that the 2nd Respondent in his proceedings No. 1322 dated 29.4.1988, impugned in the present Writ Petition, issued a notice to him stating that by March, 1988 he had to pay a sum of Rs. 10,437,70 and that "a bill dated Nil was served" on him. The Petitioner alleges that no such bill was served on him. The impugned notice also intimated him that unless he paid the arrears of Rs. 10,437.70 within 30 days from the date of receipt of the notice, the meter etc. would be removed. The Petitioner contends that the said notice dated 29.4.1988 is arbitrary and illegal and that he was not bound to pay any charges after the energy was disconnected and that there was no question of paying any minimum charges when the meter was disconnected and that therefore the question of payment of penalties etc. to a tune of Rs. 10,437.70 did not arise. He also complains that no details as to how the said figure of Rs. 10,437.70 was arrived at were furnished in the impugned notice. He states that no earlier notice detailing the arrears etc. was furnished to him or served on him at any time previously. He also finds fault with the statement in the impugned notice that a sum of Rs. 249.90 was due under the bill dated 11/86 and that the same was not paid by him, nd expresses that it was unimaginable as to how a sum of Rs. 10,437.70 was arrived at even though the service was disconnected and no energy was consumed thereafter.

The Writ Petition was presented on 9.5.1988 and it was admitted on 10.5.1988. Pending the Writ Petition, the Petitioner also sought in W.P.M.P. No. 93333 of 1988 directions to the Respondents to issue reconnection to his service connection No. 1717, pending disposal of Writ Petition. On 10.5.1988, this Court granted interim direction for reconnection on condition that half of the arrears would be paid. It is not in dispute that on the Petitioner paying half of the arrears, the supply of energy was restored pursuant to the interim directions of this Court.

In the counter affidavit filed on behalf of the Respondents, it is stated that energy under service connection No. 1717 was released to the Petitioner''s rice and flour mill under 20 H.P. industrial load on 17.6.1963 and that the Petitioner executed an agreement dated 7.6.1963 for industrial service. It is further stated that the Petitioner paid electrical bills upto 10/86 and defaulted in payment of bills from 11/86 and that his service was disconnected on 18.11.1987 and that subsequently the Petitioner was served the impugned letter No. 1322 dated 29.4.1988 intimating him of arrears of consumption charges due to Rs. 10,437.70 payable from 11/86 to 3/88 and that in the event of non-settlement of the dues within one month from the receipt of the notice, the agreement would be terminated and the meter, service wire etc., would be removed as per terms and conditions of supply Clause 26.10. It is also stated that earlier the Petitioner addressed a letter dated 26.4.1988 seeking information about the arrears due from him to enable him to run the mill. It is also stated that without giving any reply to the impugned notice dated 29.4.1988 the Petitioner approached this Court by way of the present Writ Petition challenging the said notice. In the counter affidavit it is denied that the supply of energy to the Petitioner''s rice and flour mill was disconnected in November, 1986 itself and it is asserted that it was disconnected only on 18.11.1987 and that energy was consumed under the said service connection between 11/86 and 11/87 as follows:

11/86 and 12/86

3,225 Units

1/87 and 2/87

2,111 Units

3/87 and 4/87

4,067 Units

5/87

2,698 Units

6/87 and 7/87

673 Units

8/87 and 9/87

31 Units

10/87

2 Units

In the counter affidavit, the particulars of demands from 11/86 to 3/88 are also given as follows;

Month Amount of the bill

11/86 249.90

12/86 138.75

1/87 3,080.20

2/87 1,176.95

3/87 245.00

4/87 2,240.20 Paid

5/87 1,488.90

6/87 and 7/87 520.00

8/87 305.00

9/87 305.00

10/87 305.00

11/87 305.00

12/87 305.00

1/88 305.00

2/88 305.00

3/88 305,00

Total 10,739.70

Less interest on Security Deposit 264.00

for 86-87 adjusted 10.475,70

It is also stated that in the impugned notice dated 29.4.1988 the amount due from the Petitioner was noted by mistake as Rs. 10,437.70 and hat the correct figure of the dues payable by the Petitioner as on that date was Rs. 10,437.70. It is further stated that the Petitioner is bound to pay the arrears of consumption charges nd also the minimum charges after disconnection as well, and that if the said amounts were paid the Respondent-Board would have given reconnection, an that the Petitioner cannot avoid payment of the said amount. Condition 33.2 of the Terms and Conditions of supply of electrical energy by the Andhra Pradesh State Electricity Board (''Conditions'' for short) is relied upon for the payment of minimum charges by the Petitioner. Though the counter affidavit was served on the Petitioner and filed on 1.7.1996, no reply affidavit has been filed by the Petitioner.

The learned Counsel for the Petitioner has not advanced any arguments on the question whether the Petitioner was liable to pay minimum charge after disconnection was effected even though an objection to that effect was taken in the affidavit in support of the Writ Petition, and right so, in view of the judgment Writ Petition, and rightly so, in the view of the judgment of the Supreme Court in Bihar State Electricity Board, Patna and Others Vs. Green Rubber Industries and Others, wherein the Supreme Court held that the State Electricity Boards have the power to charge minimum charges even after disconnection of the service. The Supreme Court has held in that case that the rule of charging minimum guaranteed charges has been in vogue since long and that the agreement in that case was not determined with the disconnection of supply and that ?the liability to pay minimum guaranteed charges would continue till the determination of the contract and that therefore, the Board in that case was entitled to raise the bills and demand payment of minimum charges by the consumer and recover the same in accordance with law. In the present case also, the conditions clearly impose a liability on the consumer for payment of minimum charges so long as the agreement is subsisting. Condition 33 of the conditions provides that minimum charges required to be paid by the consumer and that they shall be paid by the consumer as specified in the tariffs, for different categories of consumers, and that this obligation shall be absolute, and that the minimum charges will have to be paid by the consumer even if no electricity was actually consumed for any reason whatsoever and also if the charge for electricity consumed were less than the minimum charges, and that the minimum charges will be payable even if electricity was not consumed because supply has been disconnectedly the Board because of non-payment of electricity charges, pilferage, other malpractice or for any other valid reason,

5A. Termination of agreement in respect of LT consumers is provided under condition 26-7 and is as follows;

Termination of agreement in respect of L.T. Supply; -The consumer is at liberty to determine the contract after the expiry of the period of the agreement by giving one month''s time in writing expressing his intention to do so, The Board can terminate the contract at any time by giving one week''s notice if the consumer violates the terms of agreement or the Terms and Conditions of supply prescribed by the board from time to time or the provisions of any law touching the agreement including the Electricity (Supply) Act, 1948, the Indian Electricity Act, 1910 and rules made thereunder.

But the conditions applicable to the facts of the present case is Condition 26, 10, which is as follows:

Termination of agreement for LT and HT consumers where supply of electricity remains disconnected;- Where any consumer, whose supply is disconnected for nonpayment of any amount due to the Board on any account, fails to pay such dues and regularise his account within thee months from the date of disconnection, the Board may if it thinks fit, after completion of 3 months period, issues one month notice for termination of the agreement. If the consumer still fails to regularise the account, the Board shall terminate the agreement with effect from the date of expiry of the said one month notice, such termination shall be without prejudice to the rights and obligations incurred or accrued prior to such termination.

It is under this condition that the impugned notice dated 29.4.1988 was issued. That cannot be faulted by the Petitioner and the learned Counsel for the Petitioner has not raised any contention in that regard. Even as per the Petitioner, the supply of energy to the Petitioner''s mill was disconnected much more than three months before the issuance of the impugned notice dated 29.4.1988 and it is not in dispute that the Petitioner had not regularised the account by paying the amounts due and payable by him in respect of the said service connection.

However, the main contention very strenuously advanced by the learned Counsel for the Petitioner is that the Petitioner was not served any bills for any of the months in respect of which the Respondents claimed that amounts were due and payable by him towards consumption charges or minimum charges. It is his further contention that the Board was bound to send the bills and it was not for the Petitioner to approach the Board for the purpose of ascertaining the amounts due and payable by him nd then pay the same. According to the learned Counsel, if no bills were sent by the Board, there was no duty on the Petitioner to pay any amounts to the Board in respect of his service connection. The learned Counsel relies on Condition 32.1 which states that:

The Board shall as far as possible, within 15 days after the expiration of each calendar month, cause to be delivered to every consumer, a bill of charges stating the amounts payable by the consumer towards charges for energy supplied and any other sum in connection with supply of energy by the Board.

The learned Counsel submits that this duty cast on the Board is absolute and that as this duty was ;not performed by the Board, the Board cannot find fault with the consumer in; not paying the bills. On this basis, the learned Counsel very vehemently contends that the impugned notice is bad because no bills were issued at all to the Petitioner after the disconnection was effected. He submits that in respect of monthly bills only a consolidated amount was mentioned in the impugned notice, and according to him that was not sufficient. On behalf of the learned standing counsel for the Andhra Pradesh State Electricity Board appearing for the Respondents, Mr. Pramod relies on Condition 32.6 which was in force at the relevant time, and it is as follows:

Bills will normally be sent by post or by hand delivery, but the Board takes no responsibility for loss in transit. The consumer shall notify the local office of the Board, if no bill is received. Non-receipt of the bills, however, shall not entitle the consumer to delay payment of the bills beyond the due date.

(Explanation - for the purpose of this Clause, local office shall mean the office from which the bill is issued).

He also relies on Condition 32.5 which provides that a consumer must present his bills at the time of payment without which payment will not be accepted and if the consumer is unable to do so for any reason, a duplicate bill will be supplied to him within 3 days of his application in writing to that effect at the office of issue. This the learned Counsel for the Petitioner counters by submitting that the question of consumer notifying the local office of the Board if no bill was received would arise only if in act the bill was sent by post and yet was not received by the consumer, We find that this is a contention of despair and does not warrant any consideration. If the consumer did not receive the bill, he would not know whether the non-receipt was because the bill was not posted by the Board and was lost in transit or because the bill wa never posted by the Board. The condition obviously requires that whenever a consumer does not receive a bill, he should notify the local office of the Board and apply for a duplicate bill so as to enable him to pay the billed amount as per Condition 32.5. This is made very clear and indubitable by Condition 32.6 itself which sates in categorical terms that "non-receipt of the bills, however, shall not entitle the consumer to delay payment of the bills beyond the due date". It is obvious from this that a consumer can wait for a reasonable time when the bill is not received by him and thereafter should take the trouble of obtaining a duplicate bill for the payment of the consumption charges in respect of the energy consumed by him.

It is not the case of the Petitioner that at any time he approached the Officers of the Board complaining that he was not receiving the bills. On the other hand, the Petitioner himself states in his affidavit in support of the Writ Petition that even after the six years lease to the tenant Siwala Satyanarayana expired, the said tenant continued to remain in unauthorised occupation of his rice and flour mill for some time - he does not say upto what time - and that "during the said period the supply of energy was disconnected in the month of November 1986". In the counter, it was stated that it was in fact disconnected on 18.11.1987 and not in November, 1986. In the counter affidavit the details of the consumption of energy for the period 11/86 to 10/87 have been given which discloses considerable consumption of energy upto 5/87. When according to the Petitioner the lease in favour of the Petitioner''s tenant was for a period of six years form 1.4.1976, in the absence of frank disclosure by the Petitioner as to when in fact the said tenant vacated the Petitioners'' rice and flour mill, it is difficult to assume that the said tenant continued to be in possession of the Petitioner''s rice and flour mill for more than 4 years after the expiry of the lease period and that the Petitioner was not really aware as to when exactly the service connection was disconnected. Even otherwise, it is inexplicable why the Petitioner did not approach the Board for ascertaining the dues payable in respect of his service connection. In the absence of any complaint to the Board about his not receiving the bills, it is not possible for us to accept the bare statement of the Petitioner that he was not receiving any bills for the amounts payable by him in respect of his service connection from 11/86 for nearly 1 years. We may also state that the Petitioner suppressed the fact that he addressed letter dated 26.4.1988 to the Assistant Accounts Officer, A.P.S.E.B. at Bhimavaram. The original of that letter is produced before us by the Respondents. In the said letter, it is stated as follows:

Sub: Electricity charges - dues - Regrading - H.S.C.17I7.

I am the proprietor and owner of Sri Nagarjuna Rice & Flour Mill. The Ex-contractor of the mill has delivered possession to me on 7.4.88. I want to run the mill in the interest of general public. So kindly give the information regarding various dues owned to A.P.S.E.B. so as to enable me to run the mill as expeditiously as possible.

We also find from the record letter dated 5.1.1978 addressed to the Petitioner, stating as follows:

It is to inform that the S.C. No. 1717 Bhimavaram is classified under high value services ad hence the C.C. bills for 12/77 consumption bills in 1/78 onwards will be sent by post to enable to pay the CC charges in time. Hence it is proposed to send your bill by post hereafter and I request you to kindly arrange payment of the same on or before 3rd/4th of every month by means of cheque/D.D./cash to this office as our Bill Collector will not be collecting the said bill. The C.C. bills of high value services is due for payment before 3rd/4th every succeeding month without surcharge and before 10th/ 11th of every succeeding month with surcharge. If the bill remains unpaid after 12th of succeeding month the SC will be liable for disconnection.

The CC bill for 12/77 is enclosed herewith

For this, it is obvious that the Petitioner was informed the due date by which the bills for every month should be paid.

From the letter dated 26.4.1988 addressed to the Petitioner to the Board, it is clear that according to the Petitioner, the Ex-Contractor of the mill delivered possession to him on 7.4.1988 and the Petitioner waned to know the various dues owed to the A.P.S.E.B. For this it follows that the Petitioner himself was aware that the bills for consumption charges were not being paid by his Ex-Contractor. Even in this letter, the Petitioner did not complaint that he was not receiving the bills for consumption charges earlier. He did not also ask for copies of the earlier bills in the said letter dated 26.4.1988. The Petitioner surprisingly complains that the amount of dues was mentioned in the impugned notice dated 29.4.1988 without furnishing the break-up. If really the Petitioner was interested in knowing the break-up, he could have immediately approached the concerned Officers of the Board for the said break-up instead of approaching this Court directly by way of the present Writ Petition. On the other hand, the Petitioner suppressed the fact that he had addressed letter dated 26.4.1988 to the Assistant Accounts Officer, A.P.S.E.B, Bhimavaram wherein he stated that the Ex-Contractor delivered possession of his rice and flour mill only on 7.4.1988; that is the very month in which he addressed the said letter and also the very month in which the impugned notice was sent to the Petitioner.

In the circumstances, we do not find any merit in this Writ Petition. We find hat this is a vexatious Writ Petition. The Petitioner had the advantage of reconnection without payment of the entire dues payable by him. As per the statement given by the Respondents, the Petitioner paid a sum of Rs. 5,781.80 on 20.5.1988 and obtained reconnection pursuant to the interim direction of this Court dated 10.5.1988 in W.P.M.P. No. 9333 of 1988. The Petitioner has therefore to pay the balance amount of Rs. 4,998.90 together with interest thereon at 18% from 20.5.1988 till 23.3.1992 and thereafter at 24% from upto the date of payment on the said amount of Rs. 4,998:90. We are constrained to direct the Petitioner to pay the interest as well because we are of the view that the Petitioner has obtained undue benefit by approaching this Court and obtaining an interim direction on 10.5.1988 for reconnection on payment of half of the arrears; and by payment of the half of the arrears he obtained reconnection only by virtue of the interim direction of this Court. From the statement given in the counter affidavit, the dues payable by the Petitioner towards consumption charges are for the period 11/86 to 3/88. The Respondents, in fairness to the Petitioner, did not demand payment of interest in the impugned notice dated 29.4.1988. If the Petitioner wanted to know the break-up of the amount demanded in the said impugned notice he ought to have approached the concerned Officers of the Board for that purpose instead of directly approaching this Court.

Therefore, while dismissing the Writ Petition, we make it clear that it is open to the Respondents to require the Petitioner to pay the balance amount of Rs. 4,998.90 due from the Petitioner with interest as indicated above. The Writ Petition is accordingly dismissed subject to the above with costs. Advocate''s fee Rs. 750/-.