Jharkhand High Court
Roll Well Enterprises vs State Of Jharkhand And Ors. on 11 August, 2006
Equivalent citations: [2006(4)JCR477(JHR)]
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
ORDER
S.J. Mukhopadhaya, A.C.J.
1. This application has been preferred by the petitioner for quashing the entire proceeding of Certificate Case No. 2 of 2001,02 instituted at the instance of Electrical Executive Engineer, Electric Supply, Ranchi for an amount of Rs. 43,43,019/-. He has further challenged the Demand Notice dated 10th September, 2001, issued by the Certificate Officer, Ranchi Electric Supply Area, Ranchi, under Section 7 of the Bihar and Orissa Public Demand Recovery Act, 1914 (hereinafter to be referred as 'the said Act'), as laso the order dated 16th June, 2005, whereby and whereunder, the Certificate Officer has issued distress warrant against the petitioner.
2. As the case can be disposed of on short points, it is not necessary to discuss all the facts, except the relevant one.
3. It appears that the petitioner filed a petition under Clause 13 of the High Tension Agreement (hereinafter to be referred as 'H.T. Agreement') for granting full remission in Maximum Demand Charges and Annual Minimum Guarantee Charges, wherein, certain orders were passed by the General Manager-cum-Chief Engineer, South Bihar Chhotanagpur Area Electricity Board, Ranchi on 14th January, 1999. Thereafter, for non-payment of electrical dues, the respondents disconnected the electrical connection of the petitioner.
4. Different writ petitions being CWJC Nos. 1070 to 1090 of 1999 (R) were preferred by the petitioner against different orders, passed by the General Manager-cum-Chief Engineer, South Bihar Chhotanagpur Area Electricity Board, Ranchi under Clause 13 of the H.T. Agreement, relating to different financial years. Those writ petitions along with other similar case were heard and disposed of by the learned single Judge on 15th June, 2001, following the decision, rendered in the case of Jamshedpur Roller Flour Mills (P) Ltd. v. Bihar State Electricity Board reported in 2000(1) All PLR 231. The learned single Judge remitted the matter to the General Manager-cum-Chief Engineer for fresh decision on the question of proportionate remission in payment of AMG charges in the light of the decisions, rendered by the Jharkhand High Court and the Supreme Court. The said order was challenged by the Electricity Board in L.P.A No. 430 of 2001 and analogous cases, wherein, a Division Bench of this Court vide judgment dated 10th March, 2003 while did not choose to interfere with the order of remand, made the following observations:
8. The learned single Judge observed that the Board was empowered to formulate such conditions in order to safeguard its interest and also to provide mode of disposal of the claims and held that Notification dated 29.7.1994 and its clarificatory letter dated 13.7.1996 issued by the Board were perfectly legal, valid and binding on the consumers. Time limit for filing claim under Clause 13 of the H.T. Agreement fixed by the Board was justified and in accordance with law. Prescribing the period of more than 30 minutes' interruption in supply of electricity for the purpose of granting remission in payment of AMG charges was wholly unjustified and against the law laid down in Suprabhat Steel Limited v. Bihar State Electricity Board 1994 (1) BBCJ 369. While making the claim under Clause 13 for proportionate remission in payment of AMG charges, the consumer has to deposit 50% of the dues along with the claim.
9. The Electricity Board has, therefore, preferred appeals, against part of the impugned order, whereby only the interruption for more than 30 minutes duration were to be considered for the purpose of remission was held to be unjustified and the consumers preferred appeals against the observations/findings of the learned single Judge that Regulation in question issued by the Board under Section 79 of the Electricity (Supply) Act was legal and the limitation prescribed for filing claim under Clause 13 and asking to deposit 50% amount of the bill by way of condition to consider the objection under Clause 13 were also legal and justified.
10. After hearing the parties at length and on considering the various pronouncements of the Apex Court and the High Courts, we are in agreement with the decision in Jamshedpur Roller Flour Mills (P) Ltd. v. Bihar State Electricity Board 2000(1) All PLR 231 and find that the present matters are covered by the said decision and as such the learned single Judge rightly decided the writ application by the impugned order in these appeals and remitted the matter for reconsideration by the General Manager-cum-Chief Engineer and decision on the question of proportionate remission in payment of the AMG charges in the light of the aforesaid pronouncements referred to in Jamshedpur Flour Mills (P) Ltd. (supra).
5. It appears that the petitioner, thereafter, preferred different applications under Clause 13 of the H.T. Agreement for different financial years, which were not entertained by the General Manager-cum-Chief Engineer, Electricity Supply Area, Ranchi. Thereafter, a certificate proceeding was initiated for recovery of Rs. 43,43,019/-, which was registered as certificate case No. 2 of 2001-02. In pursuance of notice under Section 7 of the said Act, though the petitioner filed objection under Section 9, no decision was taken on such objection. The case was adjourned from one date to another for years together, allowing the Board to file rejoinder to the said objection petition. The case was suddenly taken up in the year, 2005 when it was brought to the notice of the Certificate Officer that the General Manager-cum-Chief Engineer could not decide the claim of the petitioner, as 50% of the outstanding dues was not paid in terms with the guidelines, issued by the Board. Having noticed the same the Certificate Officer issued the impugned distress warrant against the petitioner vide order dated 16th June, 2005.
6. Learned Counsel for the Board has referred to paragraph Nos. 8 and 9 of the judgment, rendered in the case of General Manager-cum-Chief Engineer, Ranchi Area Electricity Board and Ors. (LPA No. 430 of 2001) and analogous cases, as quoted above. According to him, the petitioner was supposed to deposit 50% of the out- standing dues for decision under Clause 13 of the H.T. Agreement.
7. On the other hand, according to the learned Counsel for the petitioner, the case having been remitted by the learned single Judge, he was not supposed to deposit 50% of the outstanding dues rather in compliance of the Court's order, the General Manager-cum-Chief-Engineer ought to have decided the claim.
8. In the present case, this Court is not inclined to decide the issue as to whether the petitioner was liable to pay 50% of the outstanding dues along with the petition under Clause 13 of the H.T. Agreement or not, because no relief has been sought for against the General Manager-cum-Chief Engineer.
9. The only question, to be decided, is whether the Certificate Officer can coerce the petitioner to deposit 50% of the outstanding dues and can issue distress warrant against the petitioner before deciding the objection under Section 9 of the said Act. Similar issue fell for consideration before a Division Bench of this Court in the case of Ratna Plastic, Jhumri Tilaiya v. State of Bihar reported in 2005 (4) JLJR 123, wherein, a Bench of this Court held that no coercive action can be taken against the certificate debtor without disposal of the objection, preferred under Section 9 of the Act. The Certificate Officer was directed in the said case to dispose of the objection and only thereafter to proceed in the matter, in accordance with law.
10. Admittedly, the Certificate Officer has not decided the objection, preferred by the petitioner under Section 9 of the said Act. No decision has been taken as to whether the petitioner is liable to pay the total certificate amount, as shown, or 50% of the same. There is no law prescribed that in a certificate proceeding a person has to deposit 50% of the certificate amount before deciding the objection under Section 9 of the said Act. In such a situation, it was not open to the Certificate Officer to ask the petitioner to deposit 50% of the certificate amount nor it was open to him to issue distress warrant against the petitioner before deciding the objection under Section 9 of the said Act, on merit.
In the circumstances, the impugned order dated 16th June, 2005, issuing distress warrant against the petitioner in * certificate case No. 2 of 2001-02 is hereby set aside. However, no case having been made out, while this Court is not inclined to interfere with the proceedings of certificate case No. 2 of 2001-02, remit the case with a direction to the Certificate Officer to decide the objection under Section 9 of the said Act, on merit, and, thereafter, to proceed with the same, in accordance with law. It is expected that the objection, preferred by the petitioner under Section 9 of the said Act, shall be determined at an early date, preferably within a period of one month from the date of receipt/production of a copy of this order. The petitioner will appear and produce this order before the Certificate Officer within four weeks.
The writ petition stands disposed of with the aforesaid observations and directions.