Patna High Court - Orders
Maa Bhagwati Spongiron Pvt. Ltd. vs The State Of Bihar on 6 March, 2020
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16643 of 2019
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Maa Bhagwati Spongiron Pvt. Ltd.
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
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with
Civil Writ Jurisdiction Case No. 1640 of 2017
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Maa Bhagwati Spongiron Pvt. Ltd.
... ... Petitioner/s
Versus
North Bihar Power Distribution Company Ltd. and Ors
... ... Respondent/s
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Appearance :
(In Civil Writ Jurisdiction Case No. 16643 of 2019)
For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv.
Mr. Ashish Giri, Adv.
Mr. Rajat Kr. Tiwary, Adv.
Ms. Deepika Sharma, Adv.
For the NBPDCL : Mr. Vinay Kirti Singh, Sr. Adv.
For the State : Mr. Shankar Kumar, AC to AAG-VII
Mr. Rakesh Ambastha, AC to AAG-VII
(In Civil Writ Jurisdiction Case No. 1640 of 2017)
For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv.
Mr. Ashish Giri, Adv.
Mr. Rajat Kr. Tiwary, Adv.
Ms. Deepika Sharma, Adv.
Patna High Court CWJC No.16643 of 2019(10) dt.06-03-2020
2/11
For the NBPDCL : Mr. Vinay Kirti Singh, Sr. Adv.
For the State : Mr. Shankar Kumar, AC to AAG-VII
Mr. Rakesh Ambastha, AC to AAG-VII
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL ORDER
10 06-03-2020A rejoinder affidavit has been filed on behalf of the petitioner during the course of the day.
2. Let it be taken on record.
3. Heard Mr. Y.V. Giri, learned Senior Advocate for the petitioner, Mr. Vinay Kirti Singh, learned Senior Advocate for the respondent/North Bihar Power Distribution Company Ltd. and Mr. Shankar Kumar for the State of Bihar.
4. This writ petition was initially filed for quashing the notice of disconnection dated 27.06.2019 issued under the signature of the Executive Senior Engineer (HT), North Bihar Power Distribution Company Ltd. (in short the Company) by which an amount of energy bill due for Rs. 29387606.36 was shown and accordingly 15 days notice under Section 56 of the Electricity Act was served for making such payment, failing which the supply of electricity to the premises was to be cut off. The further prayer in the Patna High Court CWJC No.16643 of 2019(10) dt.06-03-2020 3/11 writ petition is for the correction in the bills raised by the respondent/Company by taking into account the remissions to which the petitioner/unit is entitled under the Incentive Policy of Government of Bihar of 2011.
5. During the pendency of the writ petition, the electric supply to the petitioner/unit was disconnected.
6. On mention by the counsel for the petitioner, by order dated 22.08.2019, a Bench of this Court directed for deposit of Rs. 50,00,000/- in two installments and the respondent/Company was in turn directed to restore the electric line, subject to such payment within the schedule, which was provided in the order itself. A further caution was sounded by the Bench that the petitioner shall not withhold any payment under the bills on account of the actual payment and if it was ever withheld, the respondent/Company was given the liberty to disconnect the electric supply line.
7. Pursuant to the aforesaid direction, the electric line was restored, but was again disconnected.
8. To avoid any repetition and prolixity, it would be Patna High Court CWJC No.16643 of 2019(10) dt.06-03-2020 4/11 relevant to quote the relevant paragraphs of the order dated 19.12.2019 passed by this Court, when an interlocutory application was filed for a direction to the respondent/Company to restore the electric connection, which reads as hereunder:-
It appears that pursuant to the order dated 22.08.2019, the petitioner was asked to deposit 50 lakhs in two weekly installments of 25 lakhs each and the Respondent/Electricity Distribution Company was directed to restore the electric connection. This was in keeping with the Industrial Incentive Policy.
The petitioner appears to have deposited Rs. 25 lakhs immediately after the aforesaid order but the second installment of Rs. 25 lakhs was paid after much delay but within a month of the order so passed.
The electric connection which was restored on the deposit of first installment was never disconnected because of late deposit of the further installment of 25 lakhs. No notice also was issued to the petitioner for not having deposited the second installment in time.
Leaving that aside, a further demand was raised by the Respondent- Electricity Distribution Company, which did not find favour with this Court and by order dated Patna High Court CWJC No.16643 of 2019(10) dt.06-03-2020 5/11 30.09.2019, this Court provided that the petitioner shall continue to pay the current bill and shall not be charged any electric duty or DPS on arrears till the time the case is finally decided. However, the Court was of the view that since the petitioner has been provided remission in AMG/MMG/MMC because of the Industrial Incentive Policy, the maximum demand charged by the respondent-Company could not be questioned by him.
The petitioner continued to pay the current bill but was served with another notice dated 18.10.2019, asking him to deposit an amount of Rs. 1,065,1746/- towards additional security deposit and in the event of non-payment, the electric line was to be disconnected.
It has been submitted on behalf of the petitioner that only a day after the notice, the electric line was disconnected.
It has also been submitted that the aforesaid demand of additional security deposit by the Respondent-Electricity Distribution Company is on the strength of Clause 7.15.1.6 of the Bihar Electricity Supply Code, 2007, which can only be asked for if there is a fresh connection or a fresh demand.
Since the matter is still to be adjudicated and the electric line was restored under the orders of this Court, as an interim measure, it was not appropriate for the Respondent/Electricity Distribution Company, Patna High Court CWJC No.16643 of 2019(10) dt.06-03-2020 6/11 it has been argued, to levy such additional security deposit and disconnect the line on the ground of non-payment of such amount.
In response to the aforesaid submission, Mr. Vinay Kirti Singh, learned senior Advocate for the Respondent/Electricity Distribution Company submits that the disconnection is not on the ground of failure to deposit the additional security deposit but on account of late deposit of the second installment of Rs. 25 lakhs which was the condition precedent for restoring the electric connection of the petitioner.
The aforesaid submission is not acceptable for the simple reason that the electric line was not disconnected after lapse of one week after the deposit of the first installment and that for disconnection because of late deposit of the installment, no notice was served upon the petitioner.
The argument on behalf of the petitioner therefore is that the aforesaid ground has been taken only for the purpose of disconnection.
In any view of the matter, till the case is finally decided, on the petitioner depositing an amount of Rs. 10 lakhs with the Respondent/Electricity Distribution Company within a period of 48 hours, the electric line shall be restored.
However, such decision of Patna High Court CWJC No.16643 of 2019(10) dt.06-03-2020 7/11 restoration of electric connection would be subject to the final outcome of this writ petition.
Re-notify these cases for final disposal on 30th of January, 2020.
In the meantime, all the affidavits which are required to be filed, must be filed and be exchanged with the parties.
9. On the petitioner depositing Rs. 10,00,000/- as directed by order dated 19.12.2019, the electric line was restored, but the same was again finally disconnected on 15.02.2020. This led the petitioner to approach this Court again and this Court proceeded to decide the matter on merits.
10. Noticing the averments made in the affidavits which were exchanged between the parties, this Court felt the necessity of asking the Director of the Industries, Govt. of Bihar to swear an affidavit whether the Bihar Industrial Incentive Policy of 2011 was still operative and was applicable to the petitioner/unit. The Director of the Industries Department was also asked by this Court to remain present in the proceedings so that the issues could be explained properly.
Patna High Court CWJC No.16643 of 2019(10) dt.06-03-2020 8/11
11. Pursuant to the aforesaid directions by this Court on 03.03.2020, Mr. Pankaj Kumar Singh, the Director of Industries, Govt. of Bihar appeared and explained that the Bihar Industrial Incentive Policy of 2011 is squarely applicable to the petitioner/unit and in terms of the policy, the MMG/AMG are required to be paid by the Government. The electricity duty is also to be reimbursed by 100% till seven (7) years of the unit commencing its production.
12. The only dispute which therefore remains is with respect to the Delayed Payment Surcharge (DPS). The amount of DPS has been computed at Rs. 1,07,33,644/- (the aforesaid figure is subject to final correction on factual calculation).
13. It is the stand of the Industries Department that because the on-line application for seeking remission/incentive under the policy of 2011 was made by the petitioner only in the year 2019. Therefore, even if the petitioner was entitled to be given the incentive from 2015, he would be liable to pay the DPS from 2015 to 2019 (date on which on-line application was made). Patna High Court CWJC No.16643 of 2019(10) dt.06-03-2020 9/11
14. It has further been clarified by the Director of the Industries that the payments could not be made to the respondent/Company because of some delays in sanctioning and garnering of funds, but this Court was assured that necessary responsibility of the Government under the Incentive Policy of 2011 shall be carried out expeditiously.
15. The aforesaid contentions are accepted by the respondent/Company, but seriously refuted and contested by Mr. Giri, learned Senior Advocate for the petitioner. He has submitted that there is no requirement of making any on-line application for getting such incentive under the Bihar Incentive Policy of 2011 after the Act and the Rules in that regard having been enacted and gazetted in the year 2016. He has further submitted that a corresponding/concurrent decision in that regard has also been taken by the Industries Department, which decision is stated to have been brought on record.
16. For the paucity of time, the arguments could not be concluded today.
17. Mr. Giri, learned Senior Advocate submits that Patna High Court CWJC No.16643 of 2019(10) dt.06-03-2020 10/11 the petitioner remaining without electricity, not only causes losses to the proprietor but also contributes to the national loss. He further submits that till the time the petition is finally heard and decided, the electric line be restored, even subject to payment of such amount which the Court may fix reserving the rights and contentions of the parties later.
18. The affidavit which has been filed on behalf of the petitioner today contains the calculation of the amount which is payable to the respondent/Company by the petitioner and which amount has been quantified at Rs. 28,58,990/-.
19. This Court, under the aforesaid circumstances, deems it appropriate to direct for restoration of electric connection to the petitioner/unit within forty-eight (48) hours of the deposit of first installment of Rs. 25,00,000/- (Rupees Twenty Five Lacs) with the respondent/Company. The second installment of Rs. 25,00,000/- (Rupees Twenty Five Lacs) shall be paid on or before 16 th of March, 2020. This deposit of Rs. 50,00,000/- on schedule would entitle the petitioner/unit to have uninterrupted supply of electric Patna High Court CWJC No.16643 of 2019(10) dt.06-03-2020 11/11 line.
20. Should the petitioner default in making payment of the aforesaid amount on schedule, it would be open for the respondent/Company to disconnect the electric line again.
21. The petitioner shall also resume the payment of current bill (without arrears) in full from the month of March, 2020 till the time any further arrangement is made.
22. This is only an interim arrangement and is subject to the rights and contentions of the parties later at the time of final determination of the issues.
23. The issue with respect to payability of DPS by the petitioner would be decided on the next date.
24. Re-notify this matter on 27th of March, 2020.
25. It would be open for the counsel for the parties to make a mention before the Bench for hearing of the matter on the date so fixed.
(Ashutosh Kumar, J) Praveen-II/-
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