Gauhati High Court
The Assam Power Distribution Co. ... vs Hiranya Bharali on 20 May, 2024
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GAHC010203112016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2056/2016
THE ASSAM POWER DISTRIBUTION CO. LIMITED
REP. BY ITS AREA MANAGER CUM ASSTT. GENERAL MANAGER, IRCA- I,
PALTAN BAZAR, GHY-1
VERSUS
HIRANYA BHARALI
PROPRIETOR, COLLEGE STUDIO and COLOUR LAB., PANBAZAR, GHY-1
Advocate for the Petitioner :
Advocate for the Respondent : MS. S SAIKIA
BEFORE
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
20.05.2024 Heard Mr. B. Choudhury, learned Standing Counsel, APDCL appearing for the petitioner. Also heard Mr. R.J. Das, learned counsel for the respondent.
2. By filing the instant writ petition, the petitioner APDCL is challenging the impugned order dated 07.01.2016 passed by the Electricity Ombudsmen in Appeal Petition No.2/2015, whereby the appeal filed by the respondent was partly allowed by holding inter alia that the first due date shall be 07.05.2010 for the monthly bill period from 02.04.2013 to 02.05.2013 and the petitioner Page No.# 2/12 (APDCL) shall have the authority to claim past dues from the first due date, i.e., 07.05.2013, which is within the limit of two years from the date of issuance of supplementary demand bill dated 29.04.2015 as per Section 56(2) of the Electricity Act, 2003 (hereinafter referred to as 'the Act').
3. The facts of the case is that the respondent had a connected load of 16 kw and subsequently, the same was enhanced to 25 kw w.e.f. October, 2006 and the existing whole current meter was replaced on 26.02.2007 with an LTCT meter and bills were prepared accordingly taking Multiplying Factor (in short 'MF') as 10 from 26.02.2007 onwards. At the time of replacement of the whole current meter, the premises was inspected in their presence and the inspection report clearly shows that the applicable MF for calculation of the bills stands at 10 and the bills are being raised accordingly. However, an inadvertent error occurred in raising the monthly consumption bill subsequently and for the period from 01.09.2007 to 31.01.2015, bills were raised taking MF as '1' instead of '10'. The aforesaid wrong calculation of MF came to the knowledge of the petitioner after an inspection on 25.02.2015 and thereafter, the same was rectified in March, 2015, when the monthly bill for the month of February, 2015 was issued. Accordingly, a supplementary bill dated 29.04.2015 amounting to Rs.11,58,497/- was served to the respondent vide letter dated 29.04.2015.
4. The aforesaid bill dated 29.04.2015 was challenged by the respondent before the Consumer Grievances Redressal Forum (CGRF), APDCL and after hearing the parties, the CGRF by an order dated 19.08.2015 rejected the petition filed by the respondent upholding the bill dated 29.04.2015 and allowing the respondent to pay the bill in 20 equal instalments with waiver of surcharge.
5. Thereafter, the respondent preferred an appeal being Appeal Petition No. Page No.# 3/12 2/2015 before the learned Electricity Ombudsmen challenging the order dated 19.08.2015.
6. The Electricity Ombudsmen by order dated 07.01.2016 partly allowed the appeal by inter-alia holding that the APDCL has the authority to recover old dues within the limit of two years as per Section 56(2) of the Act.
7. Mr. B. Choudhury, learned counsel for the petitioner submits that the Electricity Ombudsmen erred in law in holding that the bill dated 29.04.2015 for the period from 02.04.2013 to 02.05.2013 is time barred as per Section 56(2) of the Act. He further submits that the Electricity Ombudsmen ought to have considered that the monthly wise bills issued to the respondent from the Month of February, 2015 onwards considering MF as '10' are being regularly paid by the respondent and that although the respondent enjoyed the load during the period in question, but were billed inadvertently at less rate than the actual and therefore, by the supplementary bill dated 29.04.2015, the petitioner has sought to recover the loss due to wrong calculation.
8. Mr. R.J. Das, learned counsel for the respondent, on the other hand, submits that the bill dated 29.04.2015 in respect of the monthly bill period from 02.04.2013 to 02.05.2013 being time barred, in terms of sub-Section 2 of Section 56 of the Act, the order of the Electricity Ombudsmen warrants no interference from this Court.
9. He further submits that the liability to pay arises on the consumption of electricity and therefore, the obligation of the respondent is to pay in terms of MF '10' from the date when initially the bill for the period 10.09.2007 to 31.01.2015 was made. He accordingly submits that the supplementary bill for the period from 02.04.2013 to 02.05.2013 is time barred.
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10. I have heard the learned counsels for the parties and perused the materials available on record.
11. In order to appreciate the rival contentions of the parties, relevant provision of the Act is reproduced hereinbelow as follows-
"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 through 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,-
(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 preceding 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."
12. A perusal of the aforesaid provision indicates that there is a ban under Page No.# 5/12 sub-Section 2 of Section 56 of the Act to recover dues from any consumer after the expiry of two years from the date when such sum became first due unless the same has been shown continuously recovered as arrears as charges for electricity.
13. The Apex Court in the case of Assistant Engineer(D1), Ajmer Vidyut Vitran Nigam Ltd and Anr Vs. Rahamatullah Khan alias Rahamjulla , reported in (2020) 4 SCC 650 held that the liability to pay arises on consumption of electricity and the obligation to pay arises when the bill is issued by the licensing company quantifying the charges to be paid and therefore, electricity charges would become 'first due' only after the bill is issued to the consumer, even though the liability to pay may arise on the consumption of electricity.
14. Relevant paragraphs of Rahamatullah Khan (supra) are reproduced hereinbelow as follows-
"6.4. Section 56 provides for disconnection of supply in the case of default in payment of electricity charges. Sub-section (1) of Section 56 provides that 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 generating company, the licensee after giving 15 days' written notice, may disconnect the supply of electricity, until such charges or other sums due, including the expenses incurred, are paid. However, the disconnection cannot continue after the amounts are paid.
6.5. The obligation of a consumer to pay electricity charges arises after the bill is issued by the licensee company. The bill sets out the time within which the charges are to be paid. If the consumer fails to pay the charges within the stipulated period, they get carried forward to the next bill as arrears.
6.6. The proviso to Section 56(1) carves out an exception by providing that the disconnection will not be effected if the consumer either deposits the amount "under protest", or deposits the average charges paid during the preceding six months.
Page No.# 6/12 6.7. Sub-section (2) of Section 56 by a non obstante clause provides that notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, shall be recoverable under Section 56, after the expiry of two years from the date when the sum became "first due", unless such sum was shown continuously recoverable as arrears of charges for the electricity supplied, nor would the licensee company disconnect the electricity supply of the consumer.
6.8.The effect of a non obstante clause was explained by this Court in Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447. It was held that: -
"69. A clause beginning with the expression 'notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract' is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saving that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment." (emphasis supplied) 6.9. The liability to pay arises on the consumption of electricity. The obligation to pay would arise when the bill is issued by the licensee company, quantifying the charges to be paid. Electricity charges would become "first due" only after the bill is issued to the consumer, even though the liability to pay may arise on the consumption of electricity.
7. The next issue is as to whether the period of limitation of two years provided by Section 56(2) of the Act, would be applicable to an additional or supplementary demand.
......................
"7.2. The Standing Committee of Energy in its Report dated 19.12.2002 submitted to the 13th Lok Sabha, opined that Section 56 of the 2003 Act is based on Section 24 of the 1910 Act. The Standing Committee further opined that a restriction has been added for recovery of arrears pertaining to the period prior to two years from consumers, unless the arrears have been continuously shown in the bills. Justifying the addition of this restriction, the Ministry of Power submitted that:
Page No.# 7/12 "It has been considered necessary to provide for such a restriction to protect the consumers from arbitrary billings."
7.3. In Swastic Industries vs. Maharashtra State Electricity Board, (1997) 9 SCC 465, this Court while interpreting Section 24 of the Indian Electricity Act, 1910 held that : -
"5. It would, thus, be clear that the right to recover the charges is one part of it and right to discontinue supply of electrical energy to the consumer who neglects to pay charges is another part of it." (emphasis supplied) 7.4. Sub-section (1) of Section 56 confers a statutory right to the licensee company to disconnect the supply of electricity, if the consumer neglects to pay the electricity dues. This statutory right is subject to the period of limitation of two years provided by sub-section (2) of Section 56 of the Act. 7.5. The period of limitation of two years would commence from the date on which the electricity charges became "first due" under sub-section (2) of Section
56. This provision restricts the right of the licensee company to disconnect electricity supply due to non-payment of dues by the consumer, unless such sum has been shown continuously to be recoverable as arrears of electricity supplied, in the bills raised for the past period.
If the licensee company were to be allowed to disconnect electricity supply after the expiry of the limitation period of two years after the sum became "first due", it would defeat the object of Section 56(2).
8. Section 56(2) however, does not preclude the licensee company from raising a supplementary demand after the expiry of the limitation period of two years. It only restricts the right of the licensee to disconnect electricity supply due to non- payment of dues after the period of limitation of two years has expired, nor does it restrict other modes of recovery which may be initiated by the licensee company for recovery of a supplementary demand.
9. Applying the aforesaid ratio to the facts of the present case, the licensee company raised an additional demand on 18.03.2014 for the period July, 2009 to September, 2011. The licensee company discovered the mistake of billing under the wrong Tariff Code on 18.03.2014. The limitation period of two years under Section 56(2) had by then already expired.
9.1. Section 56(2) did not preclude the licensee company from raising an additional or supplementary demand after the expiry of the limitation period under Page No.# 8/12 Section 56(2) in the case of a mistake or bona fide error. It did not however, empower the licensee company to take recourse to the coercive measure of disconnection of electricity supply, for recovery of the additional demand. 9.2 As per Section 17(1) (c) of the Limitation Act, 1963, in case of a mistake, the limitation period begins to run from the date when the mistake is discovered for the first time. In Mahabir Kishore and Ors. vs. State of Madhya Pradesh, (1989) 4 SCC 1, this Court held that :-
"Section 17(1 )(c) of the Limitation Act, 1963, provides that in the case of a suit for relief on the ground of mistake, the period of limitation does not begin to run until the plaintiff had discovered the mistake or could with reasonable diligence, have discovered it. In a case where payment has been made under a mistake of law as contrasted with a mistake of fact, generally the mistake become known to the party only when a court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a pronouncement, it is seldom that a person can, even with reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law." (emphasis supplied) 9.3. In the present case, the period of limitation would commence from the date of discovery of the mistake i.e. 18.03.2014. The licensee company may take recourse to any remedy available in law for recovery of the additional demand, but is barred from taking recourse to disconnection of supply of electricity under sub- section (2) of Section 56 of the Act."
15. A reading of the aforesaid decision indicates that Section 56(2) of the Act does not preclude the licencee company from raising an additional or supplementary demand after the expiry of the limitation period. It only restricts the right of the licencee to disconnect electricity supply due to non payment of dues after the period of limitation of two years has expired. It is further apparent that there is no bar under Section 56(2) of the Act from raising an additional or supplementary demand after expiry of the limitation period stipulated in the case of a mistake or bonafide error and the restriction is only for taking recourse to the coercive measure of disconnection of electric supply.
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16. The Apex Court in the case of Prem Cottex Vs. Uttar Haryana Bijli Vitran Nigam Ltd. and Ors reported in (2021) 20 SCC 200 after following the case of Rahamatullah Khan (supra) has held as hereunder-
"10. In Rahamatullah Khan, three issues arose for the consideration of this Court. They were:
(i) what is the meaning to be ascribed to the term "first due" in Section 56(2) of the Act;
(ii) in the case of a wrong billing tariff having been applied on account of a mistake, when would the amount become first due; and
(iii) whether recourse to disconnection may be taken by the licensee after the lapse of two years in the case of a mistake.
11. On the first two issues, this Court held that though the liability to pay arises on the consumption of electricity, the obligation to pay would arise only when the bill is raised by the licensee and that, therefore, electricity charges would become "first due" only after the bill is issued, even though the liability would have arisen on consumption. On the third issue, this Court held in Rahamatullah Khan³, that "the period of limitation of two years would commence from the date on which the electricity charges became first due under Section 56(2)". This Court also held that Section 56(2) does not preclude the licensee from raising an additional or supplementary demand after the expiry of the period of limitation in the case of a mistake or bona fide error. To come to such a conclusion, this Court also referred to Section 17(1)(c) of the Limitation Act, 1963 and the decision of this Court in Mahabir Kishore v. State of M.P.
12. Despite holding that electrieity charges would become first due only affer the bill is issued to the consumer (para 6.9 of the SCC Report of Rahamatulla Khan³) and despite holding that Section 56(2) does not preclude the licensee from raising an additional or supplementary demand after the expiry of the period of limitation prescribed therein in the case of a mistake or bona fide error (para 9.1 of the SCC Report of Rahamatulla Khan³), this Court came to the conclusion that what is barred under Section 56(2) is only the disconnection of supply of electricity. In other words, it was held by this Court in the penultimate paragraph that the licensee may take recourse to any remedy Page No.# 10/12 available in law for the recovery of the additional demand, but is barred taking recourse to disconnection of supply under Section 56(2).
13. But a careful reading of Section 56(2) would show that the bar contained therein is not merely with respect to disconnection of supply but also with respect to recovery. If sub-section (2) of Section 56 is dissected into two parts it will read as follows:
(i) 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 and
(ii) the licensee shall not cut off the supply of electricity.
Therefore, the bar actually operates on two distinct rights of the licensee, namely, (i) the right to recover; and (ii) the right to disconneet. The bar with reference to the enforcement of the right to disconnect, is actually an exception to the law of limitation. Under the law of limitation, what is extinguished is the remedy and not the right. To be precise, what is extinguished by the law of limitation, is the remedy through a court of law and not a remedy available, if any, dehors through a court of law. However, Section 56(2) bars not merely the normal remedy of recovery but also bars the remedy of disconnection. This is why we think that the second part of Section 56(2) is an exception to the law of limitation.
14. Be that as it may, once it is held that the term "first due" would mean the date on which a bill is issued, (as held in para 6.9 of Rahamatullah Khan³) and once it is held that the period of limitation would commence from the. date of discovery of the mistake (as held in paras 9.1 to 9.3 of Rahamatullah Khan³), then the question of allowing licensee to recover the amount by any other mode but not take recourse to disconnection of supply would not arise. But Rahamatullah Khan³ says in the penultimate paragraph that "the licensee may take recourse to any remedy available in law for recovery of the additional demand, but barred from taking recourse to disconnection of supply under sub- section (2) of Section 56 of the Act" (SCC p. 658, para 9)."
17. In the present case, the admitted facts are that-
1) From October, 2006 the connected load of 16 kw of the respondent was enhanced to 25 kw.
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2) In view of the enhancement, bill in relation with the respondent premises is to be now prepared by taking the multiplying factor (MF as '10' instead of '1').
3) Due to an inadvertent error in raising the monthly consumption bill for the period from 10.09.2007 to 31.01.2015, bills were raised taking MF as 1 instead of 10.
4) Upon detection of the aforesaid error, a supplementary bill dated 29.04.2015 amounting to Rs.11,58,497/- for the period 10.09.2007 to 31.01.2015 was issued.
18. The obligation of the consumer being from the date when the bill is issued, liability to pay the same also arises from the date within which the bill is required to be paid. In the present case, the bill containing the difference of amount after taking MF as '10' for the period 02.04.2013 to 02.05.2013 having been raised for the first time in the supplementary bill dated 29.04.2015 would become first due from 29.04.2015. Even otherwise, the difference amount having been left out by a bonafide mistake in the initial bill, there is no time limit for recovery of the same by issuance of a supplementary bill.
19. In view of the aforesaid, the decision of the Electricity Ombudsmen to the effect that- "Award- The above discussion and observation including examination of records submitted by the appellant and Respondent APDCL, it is now seen that first due date in the present case shall be 07.05.2013, the bill date for the monthly bill period from 2/4/2013 to 2/5/2013. The Respondent APDCL shall have authority to claim past dues from the said date (07.05.2013) Page No.# 12/12 which is within the limit of two years of the issuance of supplementary demand bill dated 29.4.2015 as per sub sec (2) of the section 56 of the Electricity Act 2003. APDCL shall revised the supplementary demand bill dated 29.4.2015 accordingly." is totally erroneous and unsustainable in law.
20. Thus, the Electricity Ombudsmen's award to the effect that 'first due' date in the present case is 07.05.2013 is manifestly erroneous on the face of the record and is utterly in disregard of Section 56(2) of the Act, inasmuch as, the difference amount by taking MF as '10' for the period 02.04.2013 to 02.05.2013 was not part of the initial bill and hence, no liability was fastened and therefore, cannot be said to have been first due on 07.05.2013. The difference amount having been included in the supplementary bill dated 29.04.2015 would become first due from 29.04.2015.
21. In view of the above, the order dated 07.01.2016 passed by the Electricity Ombudsmen of Assam Electricity Regulatory Commission in Appeal Petition No. 2/2015 is set aside and quashed.
22. Resultantly, the petitioner is at liberty to realize the bill dated 29.04.2015 as per the order dated 19.08.2015 passed by the CGRF.
23. With the aforesaid observations and directions the writ petition stands disposed of.
JUDGE Comparing Assistant