Jharkhand High Court
Ms Sheo Shakti Cement Industries ... vs Jharkhand Urja Vikas Nigam Limited And ... on 4 April, 2016
Author: D.N. Patel
Bench: D. N. Patel, Amitav K. Gupta
1 L.P.A. No.665 of 2015
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 665 of 2015
M/s Sheo Shakti Cement Industries, a patnership firm having its
works at Demotand, P.O.-Morangi,m P.S. - Mufasil, District -
Hazaribagh, through one of its partners Shri Raj Kumar
Singhania, Son of Late Kishan Lal Singhani, resident of Boddom
Bazar, P.O. & P.S. - Hazaribagh, District - Hazaribagh
... ... ... ... Appellant
Versus
1. Jharkhand Urja Vikas Nigam Limited, Engineering Bhawan,
Dhurwa, Ranchi
2. Chairman, Jharkhand Urja Vikas Nigam Limited,
Engineering Bhawan, Dhurwa, Ranchi
3. Secretary, Jharkhand Urja Vikas Nigam Limited,
Engineering Bhawan, Dhurwa, Ranchi
4. General Manager-cum-Chief Engineer, Hazaribagh Area,
Jharkhand Urja Vikas Nigam Limited, Hazaribagh
5. Electrical Superintendent Engineer, Jharkhand Urja Vikas
Nigam Limited, Electric Supply Circle, Hazaribagh
6. Assistant Executive Engineer, Jharkhand Urja Vikas Nigam
Limited, Electric Supply Circle, Hazaribagh
... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE D. N. PATEL
HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Petitioner: M/s. A.R. Choudhary
For the Respondents: M/s. Ajit Kumar, Rahul Kumar
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02/Dated: 04th April, 2016
Per D.N. Patel, J
1. This Letters Patent Appeal has been preferred against the judgment and order passed by learned Single Judge in W.P. (C) No.353 of 2015 order dated 16th September, 2015, whereby the petition preferred by this appellant was dismissed and, hence, the original petitioner has preferred this Letters Patent Appeal.
2. FACTUAL MATRIX ● This petitioner is running an industry and is consuming 2 L.P.A. No.665 of 2015 electricity., Now, for the months February, 2011 to March, 2014, a dispute has arisen, because the respondents-Electricity Company has issued a supplementary bill dated 13 th May, 2014 which was revised in the month of June, 2014. This bill was initially for an amount of approximately Rs.1.87 Crores and revised bill was for Rs.1.80 Crores. There are engaged 44 to 48 employees. ● It appears from the facts that a wrong multiplying factor was applied by the respondents-Company and, hence, wrong bill was made by the respondents. The wrong multiplying factor was 1200, whereas, now correct multiplying factor applied is 2000 on the basis of meter, etc and, therefore, the supplementary bills were issued on 13th May, 2014 which was in force in the month of June, 2014. These bills are under challenged before this Court in W.P. (C) No. 353 of 2014 and as the writ petition has been dismissed by the learned Single Judge vide order dated 16th September, 2015, this Letters Patent Appeal has been preferred by the original petitioner.
3. ARGUMENT CANVASSED BY THE COUNSEL FOR THE PETITIONER ● Counsel for the appellant submitted that multiplying factor applied by the respondents is absolutely wrong. Initially, it was 1200 when the bills were raised and now, supplementary bill has been raised in the month of June, 2013 which was slightly corrected in the month of June, 2014 with multiplying factor of 2000 and there is no justification by the respondents for new multiplying factor. ● It is submitted by the counsel for the appellant that the demand made by the respondents-Company is time barred looking to Section 56(2) of the Electricity Act, 2003 (hereinafter referred to as 'the Act, 2003', for the sake of brevity).
● Counsel for the appellant has also relied upon Section 174 read with 175 of the Act of 2003. In the judgment of Hon'ble Bombay High Court in Writ petition No.17064 of 2011 124/12 (Anenxure 13), whereby the matter has been referred to Larger Bench by the learned Single Judge of Hon'ble Bombay High Court.
● On the basis of the aforesaid decision, it is submitted by the counsel for the appellant that the demand made by the respondents is now time barred, because initial bills raised have been paid by the appellant and much time has passed thereafter. These aspects of the 3 L.P.A. No.665 of 2015 matter have not been properly appreciated by the learned Single Judge while dismissing the writ application preferred by this appellant. Hence, this Letters Patent Appeal may kindly be allowed.
4. ARGUMENT CANVASSED BY THE RESPONDENTS ● Counsel for the respondents submitted that initially a wrongly multiplying factor was applied which is 1200 and after inspection of the report, it was found out that it should have been 2000 and, hence, supplementary bills have been raised on 13.05.2013 which has been slightly corrected in the month of June, 2014.
● So far as the time limit is concerned, it is submitted by the counsel for the respondents that looking to Section 17 of the Limitation Act, 1963, the limitation starts from the date on which the mistake was found out. So far as Section 56(2) of the Electricity Act is concerned, it is submitted by the counsel for the respondents that the same is not applicable in the facts and circumstances of the case, because, Section 56(1) of the Electricity Act is one the modes of recovery over and above the suit and what is prohibited under Section 56(2) is the shortcut method. Section 56(2) never ousts other types of remedies available with the respondents to get the correct recovery of the electricity dues.
● Counsel for the respondents submitted that revised bills were issued on 13.05.2014 and with a correction in the month of June, 2014 on the basis of the inspection report. Counsel for the respondents has also relied upon the decision rendered by Division Bench of this Court reported in 2008(1) JCR 149 (Jhr). In view of this decision, the period of 02 years mentioned in Section 56(2) of the Act of 2003 will not from the date of demand made by the respondents- Board. These aspects of the matter have properly been appreciated by the learned Single Judge while dismissing the writ petition. Hence, this Letters Patent Appeal may not be entertained by this Court.
5. REASONS:-
Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons:-
(i) This appellant is original petitioner who is having a contract demand of electricity which is 1067 KVM of High Tension 4 L.P.A. No.665 of 2015 connectivity at 11. KV supply.
(ii) It appears that for the period running from February, 2011 to March, 2014, the monthly electricity bills were raised with a multiplying factor of 1200.
(iii) It further appears from the facts that an inspection was carried out in the premises of this appellant and looking to the electricity meter and the connection, the correct multiplying factor is 2000 instead of 1200, which was to be taken from this appellant by the respondents while calculating the electricity consumption charges and, hence, supplementary bills were to be raised.
(iv) It appears from the facts that the supplementary bills were raised on 13th May,m 2014 which was slightly corrected in the month of June, 2014. The bills are for Rs.1.80 Crores.
(v) The contention raised by the counsel for the appellant is that the demand made by the respondents is time barred looking to Section 56(2) of the Electricity Act, 2003 which we are not accepting mainly for the following reasons: -
a) For the ready reference, Section 56 of the Electricity Act, 2003 reads as under: -
"56. Disconnection of supply in default of payment.-(1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days' notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company though which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer :
Provided that the supply of electricity shall not be cut off if such person deposits, under protest, -5 L.P.A. No.665 of 2015
(a) an amount equal to the sum claimed from him, or
(b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceeding six months, Whichever is less, pending disposal of any dispute between him and the licensee.
(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity."
(Emphasis supplied)
b) In view of the aforesaid provision, it appears that over and above the suit for recovery of dues, there is one shortcut method available to the respondents i.e. given under Section 56(1) of the Act which is a disconnection of supply of electricity.
c) The words used in Section 56(1) are "without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnection any electric supply line or other works being the property of such licensee or the generating company ......."
(Emphasis supplied)
d) The aforesaid words having been used in Section 56(1) of Act empowers the respondents to cut-off the electricity supply if any amount due is not paid by the consumer. Thus, Section 56(1) provides one additional "mode of recovery".
e) Looking to sub-section (2) of Section 56, it appears that there is time limit for adopting shortcut method given under Section 56(1) and the time limit is of two years from the date when such sum becomes first due. The words "under these sections" which are used in Section 56(2) puts a limitation upon additional mode of recovery mentioned in Section 56(1) and nothing beyond that.
f) Section 56(2) which imposes time limit of two years not for 6 L.P.A. No.665 of 2015 every type of methodology of recovery of dues. This limitation of two years applies only for method of recovery mentioned under Section 56(1).
g) In view of the aforesaid reasons, the demand raised by the respondents by way of supplementary bills or revised supplementary bills is not time barred at all especially looking to Section 17(1) of the Limitation Act, 1963. For the ready reference, Section 17 of the Limitation Act, 1963 reads as under:-
"17. Effect of fraud or mistake.- (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,-
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him;
the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production :
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which-
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have 7 L.P.A. No.665 of 2015 reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-
creditor made after the expiry of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be".
(emphasis supplied)
h) So far as multiplying factor of 2000 applied by the respondents is concerned, it is based upon inspection report and also based upon the meter. The inspection report is at page 115 which is at Annexure 15 which is cited by the representative of the appellant-Company. For the multiplying factor, looking to paragraph 6 of the judgment delivered by learned Single Judge in W.P. (C) No. 353 of 2014 order dated 16 th September, 2015 at length there is a discussion. For the ready reference, paragraph
6 of the judgment delivered by learned Single Judge reads as under: -
"6. I find that in its objection dated 24.05.2014, the petitioner took a plea that neither any detail was given nor the basis for raising supplementary bill dated 13.05.2014 was disclosed. The said supplementary bill was raised without issuing show-cause notice and without affording any opportunity of hearing to it. The Electrical Superintendent Engineer, Electric Supply Circle, Hazaribagh filed statement 8 L.P.A. No.665 of 2015 of facts asserting that the supplementary bill was raised on account of short-fall in Multiplying Factor (MF). The previous bills for the period February, 2011 to March, 2014 were raised on the basis of Multiplying Factor 1200 whereas, the CTPT installed at the petitioner's premises was carrying Multiplying Factor 2000. A perusal of the Installation Report of CTPT Metering Unit dated 27.01.2011 discloses details of metering unit such as make, capacity, type, date of manufacture etc. The Installation Report contains the details of old CTPT Metering Unit which was replaced on 27.01.2011. The old CTPT Metering Unit had CT Ratio 60/5A and PT ratio 11,000/110V whereas, the new CTPT Metering Unit has CT Ratio 100/5A and PT ratio 11000/110 V. The new ctpt Metering Unit which was installed on 27.01.2011 was with MF 2000. The Installation Report dated 31.03.2014 replacing the CTPT Metering Unit which was installed on 27.01.2011 discloses similar details of the removed/damaged Metering Unit. Though, Multiplying Factor of the CTPT Metering Unit installed on 27.01.2011 is not mentioned in the Installation Report dated 31.03.2014 however, it records CT ratio 100/5A and PT ratio 11 KV/110V which is equivalent to 11000/110V. In these facts, it cannot be disputed that the CTPT Metering Unit installed on 27.01.2011 had Multiplying Factor of 2000. In the above facts, the contention that the General Manager-cum-Chief Engineer-respondent no.4 did not deal with the prayer for sending the CTPT Metering Unit for testing for ascertaining the Multiplying Factor, must fail. The submission made on the basis of the downloaded information from Internet that the Meter Multiplier is not disclosed and therefore, the CTPT Metering Unit should have sent testing, is liable to be rejected. The document vide Annexure-17 filed by the petitioner discloses that Meter Multiplier is shown on the face of the meter and the billing multiplier is indicated in the invoice. As notice above, Multiplier Factor has been mentioned in the Meter 9 L.P.A. No.665 of 2015 Installation Report dated 27.01.2011. It is not in dispute that the petitioner itself informed the respondent-Nigam that the meter is burnt and thus, the meter multiplier which is written on the fact of the meter now cannot be detected. In view of the technical specifications and the Multiplying Factor mentioned in the Installation Report dated 27.01.2011, no opportunity of hearing was required to be given to the petitioner, though the respondents should have mentioned the MF short-fall in the supplementary bills."
I) We are in full agreement with the aforesaid observations of the learned Single so far as applicability of multiplying factor is concerned.
j) It has been held by the Division Bench of this Court in the case of M/s Tata Steel Ltd v. Jharkhand State Electricity Board & Ors reported in 2008(1) JCR 149 (Jhr) in paragraphs 8, 9 and 10 as under: -
"8. After going through the impugned judgment, the decision of Delhi High Court, i.e. AIR 1987 Delhi 219 and after hearing the parties, we are of the view that when the consumer consumes electrical energy, he becomes liable to pay the charges for such consumption but, thereafter, when the Board raises bills as per the tariff, making specific demand from the consumer for payment of the amount for consumption of electrical energy then only amount becomes "first due" for payment of such consumption of electrical energy.
9. In view of the above findings, we further hold that the period of two years as mentioned in Section 56(2) of the Electricity Act, 2003 would run from the date which such demand is made by the Board, raising the bills against consumption of electrical energy.
10. Consequently, we affirm the view taken by the learned single Judge in the impugned judgment and, accordingly, having found no merit, this letters patent appeal is dismissed.
(Emphasis supplied)
k) In view of this decision also, the demand made by the respondents cannot be labelled as time barred demand.10 L.P.A. No.665 of 2015
(l) We have perused the judgment delivered by Hon'ble Bombay High Court which is at Annexure 13. It appears that the way in which we have interpreted Section 56(1) and (2) have not been highlighted at all in this decision i.e. Section 56(1) of the Act of 2003 provides one more methodology of recovery of electricity dues over and above other remedies like a suit, etc, for which limitation is prescribed under Section 56(2). Thus, Section 56(2) and the limitation mentioned therein are applicable only for this special mode of recovery enumerated under Section 56(1). Additional mode of recovery provided under Section 56(1) is disconnection of the electricity. This should be done within two years from the date on which the amount is found due and payable. Merely because, there is 56(2) and period of limitation is two years for applying special mode of recovery i.e. disconnection of electricity, that does not mean that the respondents-Board cannot raise the electricity bills if any error was committed or mistake was committed earlier. In such type of cases, limitation will run as per Section 17(1) of the Limitation Act, 1963 and such other sections. In short, Section 56(2) never restricts other modes of recovery by the respondents, but, it restricts only one type of recovery i.e. 'disconnection of the electricity' and the recovery of dues by this methodology. Even otherwise also, the judgment delivered by Division Bench of this Court is binding.
6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, no error has been committed by the learned Single Judge in dismissing W.P. (S) No. 353 of 2014 vide order dated 16 th September, 2015 and there is no substance in this Letters Patent Appeal. Hence, the same is hereby dismissed.
(D. N. Patel, J)
Manoj/ (Amitav K. Gupta , J)