Jharkhand High Court
Bihar State Electricity Board vs Union Of India (Uoi), Through The ... on 5 December, 2003
Equivalent citations: [2004(1)JCR16(JHR)]
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan, R.K. Merathia
JUDGMENT P.K. Balasubramanyan, C.J.
1. For the existing State of Bihar prior to its reorganisation by the Bihar Reorganisation Act, 2000, the Bihar State Electricity Board was formed in terms of the Electricity Supply Act, 1948. Its area of operation included the areas, which subsequently fell within the State of Jharkhand on the coming into force of the Bihar Reorganisation Act, 2000 with effect from 15.11.2000. since the reorganisation brought within its wake the division of various instrumentalities of the State, corporations and statutory bodies, the Bihar State Electricity Board also had to be reorganised. Section 62 of the Reorganisation Act provided that on and from the appointed day, the Bihar State Electricity Board would continue to function in those areas in respect of which they were functioning immediately before that day, subject to the provisions of Section 62 and such directions as may, from time to time, be issued by the Central Government. The State of Jharkhand issued a notification on 10.1.2001 creating the Jharkhand State Electricity Board under Section 1(4) -of the Electricity Supply Act read with Section 62(4) of the Bihar Reorganisation Act. On 5.3.2001, certain decisions were arrived at by the reorganised State of Bihar and the State of Jharkhand under the aegis of the Central Government. As per the decision. the assets of the original Bihar State Electricity Board was to be divided on geographical nexus on 'as is where is' basis. The liabilities were to be divided on the basis of the ratio of the energy consumed in Bihar and in Jharkhand, fixed as 54:46 which was to be confirmed from the actual figures. The Staff were to be divided in the ratio of 2:1 between the States of Bihar and Jharkhand and until the division took place, the existing staff were to continue to work on "as is where is" basis and transfer and postings were to stand frozen until such division. There were other terms with which we are not at the moment concerned, except that it was also agreed that the Government of India was to issue an order under Section 62(4)(a) of the Bihar Reorganisation Act, 2000 at the earliest, as per the principles thus agreed between the two States. It is seen that without waiting for an order based on the minutes of the joint meeting and as contemplated by it,--no adequate explanation was offered to us why such a thing was done--the State of Jharkhand proceeded to appoint a Chairman for the Jharkhand State Electricity Board on 16.3.2001. He purported to take charge on 19.3.2001. On 20.3.2001, a notification was issued declaring that those employees of the Board working within the territory of the State of Jharkhand would become employees of the Jharkhand State Electricity Board with effect from 16.3.2001. Yet, another notification was issued taking over with effect from 16.3.2001 the movable and immovable assets, including the records and adapting the enactments, Rules and Regulations that were applicable to the Bihar State Electricity Board.
2. On 22.3.2001, the Central Government, in terms of the tripartite decision arrived at and acting under Section 62(4) of the Reorganisation Act, issued a provisional order to the effect that the assets, liabilities, rights and undertakings of the existing Bihar State Electricity Board, shall be allocated provisionally with effect from 1.4.2001 in the manner indicated in that order. It was specifically provided therein that the respective State Electricity Boards will have the right to collect revenues/ arrears from the consumers located within the territories of the concerned States. Thus, the order of the Central Government made functional the Jharkhand State Electricity Board in the matter of assets and liabilities and collection of revenues, only with effect from 1.4.2001.
3. Meanwhile, the Jharkhand State Electricity Board had purported to start collection of revenue from 21.3.2001. It was in that context that the Bihar State Electricity Board approached this Court with CWJC No. 1174 of 2001 challenging the action of the Jharkhand State Electricity Board without waiting for an order to be issued by the Central Government in terms of the understanding arrived at by the two States and as provided for by the Reorganisation Act. The writ petition was filed on 26.3.2001. On 27.3.2001, In addition to issuing certain directions, the matter was directed to be posted the next day. On 28.3.2001, further directions were issued. The order also restrained the Jharkhand State Electricity Board from making any collection or receiving any sum towards arrears of revenue from consumers upto and inclusive of 31,3.2001 and directing that the consumers would be liable to pay the dues to the Bihar State Electricity Board. The Bihar State Electricity Board was directed to file an undertaking that if it lost the writ petition, it will make over the amounts collected by it as per the interim order, to the Jharkhand State Electricity Board. On 13.4.2001, the Jharkhand State Electricity Board, in its turn, filed CWJC No. 1469 of 2001 praying for the issue of a writ of mandamus directing the Bihar State Electricity Board to release funds for the payment of salaries of the officers, staff and employees of the Board who were then working on the rolls of the Jharkhand State Electricity Board for the month of March, 2001. Since both the writ petitions related to the issue arising out of the reorganisation of the Electricity Board, the two writ petitions were directed to be posted together and that is how they have come up for hearing together.
4. Though various, aspects were projected in the writ petition filed on behalf of the, Bihar State Electricity Board, the dust having settled to some extent by this time, the only contention urged before us was regarding the collection of revenues made by the Jharkhand State Electricity Board for the period prior to 1.4.2001. The learned counsel for the Bihar State Electricity Board contended that the Jharkhand State Electricity Board secured the authority to make collections only with effect from 1.4.2001 and any collection made by it prior to that date was unauthorised. He pointed out that it was also immoral and improper for the Jharkhand State Electricity Board to have made collections and to have prevented the Bihar State Electricity Board from making its collection, by issuing a notification, in the light of the joint decision taken on 5.3.2001 and without waiting for the issue of an order by the Central Government based on those decisions and as contemplated by Section 62(4) of the Reorganisation Act. It was submitted that the Court should condemn the act of the State of Jharkhand and the Jharkhand State Electricity Board and its Chairman in issuing the notification dated 2.3.2001 and putting a spoke in the wheel of collection of arrears by the Bihar State Electricity Board, that too, in the month of March, 2001, the time for closing of the yearly account. On behalf of the Jharkhand State Electricity Board it was submitted that the Board was constituted on 10.1.2001 and the State of Jharkhand was entitled to constitute a separate Electricity Board for the State of Jharkhand and in that context, it could not be said that the act of the Jharkhand State Electricity Board was irregular or improper. It was contended that the Jharkhand State Electricity Board had proceeded to make revenue collections since it had also the responsibility of running the Board and supplying electrical energy to the consumers, who fell within the area of operations of that Board, On behalf of the State of Jharkhand, its learned counsel did not put forward any argument except adopting the counter affidavit filed by the Joint Secretary of the Jharkhand State Electricity Board. The Central Government has filed a counter affidavit in which it has taken the stand that the Jharkhand State Electricity Board was entitled to make revenue collection only from 1.4.2001 as per the order issued on 22.3.2001 under Section 62(4) of the Bihar Reorganisation Act and the collection prior to 31.3.2001 cannot be treated as authorised.
5. We do not think that any detailed discussion is called for in these cases to hold that the action of the Jharkhand State Electricity Board in starting revenue collection before 1.4.2001 was not authorised. It is unfortunate that the State proceeded to go against the terms of the settlement arrived at between the States in the presence of the Central Government as indicated by the minutes of the meeting dated 5.3.2001 and did not rein in the Board from acting precipitately. Clearly, the said minutes contemplated the issuance of an order by the Central Government in terms of Section 62(4) of the Bihar Reorganisation Act, 2000. One would have expected an ascent State to wait till the issuance of a notification in terms of the Bihar Reorganisation Act and in accordance with the terms agreed upon by the State. It appears to us that the action of the Jharkhand State Electricity Board purporting to issue the notification on 20.3.2001 and purporting to impede the collection of revenue by the Bihar State Electricity Board prior to 1.4.2001 and the collection of revenue by itself before 1.4.2001, can only be considered to be unauthorised. It is, therefore, necessary to direct that any amount collected by the Jharkhand State Electricity Board prior to 1.4.2001 would have to be accounted for by that Board to the Bihar State Electricity Board, while, finally settling the accounts between the States and the Boards. The collected amounts would belong to the Bihar State Electricity Board with a corresponding obligation in that Board to pay the salaries of the employees and to meet the expenses of the Board of the existing State of Bihar for the period prior to 1.4.2001. On and from 1.4.2001 the collection made by the Jharkhand State Electricity Board would belong to it with a corresponding obligation on it to discharge all the obligations of the Board in respect of the areas falling within its operation and in terms of the provisional order issued by the Government and any final order that may be issued by the Central Government in that regard. We think that it is necessary for the Central Government to finalise the division as contemplated by the provisional order and to settle the accounts between the two State Electricity Boards as ex-peditiously as possible. It is seen that the Central Electricity Authority has been asked to complete the division by the Central Government. We direct the Central Electricity Authority to finalise the division of assets and liabilities and staff between the two State Electricity Boards and to settle the accounts as expeditiously as possible.
6. As regards the prayer in CWJC No. 1469 of 2001, no specific directions are required now, expect to observe that the liability for payment of salary as well as right to collect revenues/dues and to meet all obligations prior to 1.4.2001, will be that of the Bihar State Electricity Board The writ petitions are disposed of with the above directions.