Patna High Court - Orders
M/S Venky Steel Private Ltd. vs The Bihar State Power Holding Company ... on 26 September, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3638 of 2014
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M/S Venky Steel Private Limited, National Highway- 31, Bypass Road,
Belouri, Purnea, District Purnea, through its Director Chakrawarti Prasad
son of Shri Brahmadeo Prasad Das, resident of Srikrishna Nagar, P.O., P.S.
and District-Begusarai
.... .... Petitioner/s
Versus
1. The Bihar State Power (Holding) Company Limited, Vidyut
Bhawan, Bailey Road, Patna, through its Chairman-cum-Managing
Director
2. The North Bihar Power Distribution Company Limited, Vidyut
Bhawan, Bailey Road, Patna, through its Director
3. The General Manager cum Chief Engineer, Kosi Electric Supply
Area, Saharsa
4. The Electrical Superintending Engineer, Electric Supply Circle,
Purnea
5. The Electrical Executive Engineer (Commercial and Revenue),
Electric Supply Circle, Purnea
.... .... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No.13707 of 2014
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North Bihar Power Distribution Company Ltd. through Pranav Kumar son
of Late Tilakdhari Singh, resident of village and P.O.- Nanand, P.S. Silao,
District- Nalanda, presently posted as Electrical Executive Engineer,
Electric Supply Division, Purnea.
.... .... Petitioner/s
Versus
M/s Venky Steel Povt. Ltd., National Highway- 31, Bypass Road, Belouri,
Purnea District- Purnea, through its Director Chakrwarti Prasad son of Shri
Brahmadeo Prasad Das, resident of Sri Krishna Nagar, P.O, P.S. and
District- Begusarai.
.... .... Respondent/s
======================================================
Appearance:
(In CWJC No.3638 of 2014)
For the Petitioner/s : Mr. Suraj Samdarshi
For the Respondent/s : Mr. Sanjay Kumar Giri
(In CWJC No.13707 of 2014)
For the Petitioner/s : Mr. Sanjay Kumar Giri
For the Respondent/s : Mr. Suraj Samdarshi
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
7 26-09-2014Heard Mr. Suraj Samdarshi for the petitioner and Mr. Sanjay Kumar Giri for the respondent Power Holding Company Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 2 and its authorities.
Whereas CWJC No. 3638 of 2014 has been filed by the petitioner company questioning the order dated 24.8.2011 bearing Memo No.2785 dated 18.7.2012 passed by the respondent no. 3 General Manager cum Chief Engineer, Koshi Electric Supply Area, Saharsa insofar as it seeks to reject the claim of the petitioner for remission on the annual maximum demand charges for the period 1998-99 as contained in Annexure-7 to the writ petition, CWJC No. 13707 of 2014 has been filed by the Power Holding Company questioning an order dated 30.4.2014 passed by the Consumer Grievance Redressal Forum (hereinafter referred to as the 'Consumer Forum') constituted under Section 42(5) of the Electricity Act, 2003 in Case No. 54 of 2014 whereby the 'Consumer Forum' without interfering with the order of remission has directed the Distribution Company to issue a fresh bill after re- calculating the 'delayed payment surcharge' in respect of the bill for annual minimum guarantee for the period 1998-99 by restricting it to four months only.
Since the order of remission which is subject matter of this writ petition as well as the order passed by the Consumer Forum in respect of the delayed payment surcharge both are products of an exercise originating from the claim for remission raised by the petitioner under Clause 13 of the H.T. Agreement Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 3 hence the two writ petitions have been taken up for consideration together and are being disposed of with the consent of the parties at this stage by a common order.
I would be referring to the pleadings and Annexures as occurring in CWJC No. 3638 of 2014 unless clarified by specific reference to the other writ petition.
The petitioner is a private limited company and is a registered consumer with the respondent Power Holding Company bearing Consumer No. P-260 under the HTSS category having a contract demand of 1887 KVA. Clause 13 of the H.T. agreement entered into between the parties, a copy whereof is placed at Annexure-5 to CWJC No. 13707 of 2014 entitles the petitioner to a proportionate reduction in the bill relatable to demand charge as well as the guaranteed energy charge upon the failure of the Board to effect supply and a decision on the issue is to be taken by the Chief Engineer, Bihar State Electricity Board. The erstwhile Bihar State Electricity Board has also issued a notification on 29.7.1994 published in the Gazette Extraordinary dated 6.9.1995 and clause- 6(a) thereof provides that any claim made by a consumer for remission under Clause 13 of the HT agreement should be disposed of by the competent authority within four months of filing of such claim which according to Clause-(b) thereof is to be filed within 90 days of the issuance of the energy bill. Clause-8 of Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 4 the notification provides for a speedy disposal of such claim and Clause 4(c) of the notification provides that upon a claim being raised by the consumer after deposit of 50 per cent of the Annual Minimum Guarantee charges, his line is not to be disconnected for the dues reflecting in the bill and that the 'delayed payment surcharge' would be charged only on the balance amount payable after settlement of the dispute. Clause-16.2 of the tariff notification dated 21.6.1993 provides for interest / surcharge on delayed payment @ 2 per cent per month.
Mr. Suraj Samdarshi, counsel appearing on behalf of the petitioner has submitted that whereas the petitioner had preferred remission application in respect of the years 1995-96, 1996-97 and 1998-99 and the competent authority while considering the claims has allowed the remission to which the petitioner is entitled in terms of the statutory provisions insofar as the period 1995-96 and 1996-97 is concerned, however, they have defaulted in calculation of the remission for the period 1998-99 insofar as the maximum demand charge is concerned and have also raised a huge amount towards delayed payment surcharge.
Learned counsel in support of his submissions has referred to a bill dated 22.1.2000 placed at Annexure-1 to submit that an amount of Rs. 19,08,808/- was raised towards annual minimum guarantee charges for the period 1998-99. It is stated Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 5 that no sooner the petitioner gathered information of the bill that the petitioner filed his application under Clause-13 of the HT agreement for proportionate remission on the annual minimum guarantee (hereinafter referred to as the 'AMG') charges as well as against the maximum demand charge. The Financial Controller vide his letter bearing Memo No. 392 dated 14.2.2007 issued directions to the Electrical Superintending Engineer to keep the recovery of the AMG bill raised for the period 1998-99 for Rs. 19,08,808/- in abeyance until disposal of the claim raised by the petitioner before the General Manager cum Chief Engineer. A copy of the said letter is placed at Annexure-3 to the writ petition. Since the claim remained pending hence the petitioner by a subsequent representation filed on 27.2.2007 invited the attention of the General Manager cum Chief Engineer who is the competent authority for disposal of the claim case under Clause 13 of the agreement and it is thereafter that the order impugned was passed on 24.8.2011 placed at Annexure-7 to the writ petition and whereunder the General Manager while allowing the remission towards AMG charges has rejected the claim of the petitioner towards remission in maximum demand charge and while saying so has held that no delayed payment surcharge would be levied on the relief.
Following the order passed at Annexure-7 on the Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 6 remission claim of the petitioner, that a bill was raised on 22.1.2014 in which the petitioner after being granted benefit of remission in AMG charge was required to pay an amount of Rs. 2,25,604/- by way of AMG charges and in addition thereto, has been required to pay an amount of Rs. 22,24, 315.08/- by way of delayed payment surcharge for the period June 1999 to May, 2007 and an amount of Rs. 2,67,340/- by way of delayed payment surcharge for the period June, 2007 to December, 2014.
Whereas the petitioner questioned the imposition of delayed payment surcharge raised in the bill dated 22.1.2014 by filing an appropriate application before the Consumer Grievance Redressal Forum giving rise to Case No. 54 of 2014, however the order dated 24.8.2011 passed by the General Manager cum Chief Engineer on the claim raised by the petitioner under Clause 13 of the H.T. Agreement, insofar as it rejects the remission on Maximum Demand charge, has been questioned in the present writ petition.
The Case No. 54 of 2014 filed by the petitioner questioning the delayed payment surcharge has culminated in an order dated 30.4.2014 whereby the Consumer Grievance Redressal Forum, Purnea has held that the petitioner would be liable for payment of delayed payment surcharge only for a period of four months since the raising of the bill and not thereafter. It is being Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 7 aggrieved by the order of the Consumer Forum that the distribution company has moved this Court in the other writ petition.
Mr. Samdarshi, learned counsel appearing on behalf of the petitioner has submitted that although he has raised issues regarding denial of remission for period less than 30 minutes insofar as AMG charge is concerned but considering that this issue is pending consideration before a larger Bench he would not be pressing his contentions insofar as the remission order relates to the annual minimum guarantee bill. He however submits that such concession would not extended to the order insofar as the claim of remission of the petitioner in relation to maximum demand charge has been rejected for that is not only in contravention of the law laid down by this Court in the case of ' M/s. Bihar Gases Ltd. vs. Bihar State Electricity Board' reported in AIR 1999 Patna 228 but is also contrary to the opinion of the competent authority formed in relation to the order of remission passed for the period 1995-96 and 1996-97, a copy whereof is placed at Annexure-8 to the rejoinder more particularly paragraph 26 and 31 thereof.
Mr. Samdarshi, learned counsel for the petitioner has with reference to the order on remission placed at Annexure-7 of the writ petition has submitted that the maximum demand charge achieved by the petitioner as well as its recording in the meter has Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 8 no relevance for calculation of the claim of remission which has to be considered on the basis of hours of non supply as per the formula given in the judgment of Bihar Gases (supra) and which is:
Total KVA achieved by the consumer x Hours of non supply during the year.
Total Hours of supply during the year It is submitted that merely because the charge raised by the respondent company towards maximum demand is in tune with the recording made in the meter, is no ground for rejection of remission on Maximum demand rather it has to be tested against the hours of non supply and which has been followed by the competent authority himself while calculating the remission for the period 1995-96 and 1996-97 as is manifest from paragraph 26 and 31 of the order dated 11.6.2001 placed at Annexure-8. He thus submits that the rejection of remission towards maximum demand charge is clearly unsustainable.
Although Mr. Sanjay Kumar Giri tried to contest this position on grounds that the maximum demand charge has been made as per the meter recording and thus there is no issue of remission but his arguments would not survive in the light of the law laid down by this Court in the case of Bihar Gases (supra) and which has been followed by the competent authority while calculating the remission on maximum demand charge for the previous years 1995-96 and 1996-97 as is manifest from Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 9 Annexure-8.
Since the issue raised by the petitioner in CWJC No. 3638 of 2014 is limited to this issue hence the writ petition succeeds. The order dated 24.8.2011 bearing Memo No.2785 dated 18.7.2012 passed by the General Manager cum Chief Engineer insofar as it seeks to reject the claim of the petitioner towards remission on maximum demand charge under Clause-13 of the HT agreement having been passed contrary to the law laid down in Bihar Gases (supra) is set aside and the matter is remitted back to the General Manager cum Chief Engineer to pass a fresh order in accordance with law.
This would bring this Court to the issue raised in the second writ petition by the Distribution Company questioning the order of the consumer forum passed in respect of the delayed payment surcharge by restricting it to four months only.
It was vehemently argued by Mr. Giri appearing for the Distribution Company that since a delayed payment surcharge is a charge on the failure of the consumer to make use of such electricity which stands ensured against his name and for which purpose, the Distribution Company has to make substantive investments, such investment has to be duly compensated by imposition of the delayed payment surcharge for the failure of the consumer to use the energy of which he has given a guarantee. He Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 10 thus submits that in this background the reasons assigned by the consumer forum for restricting the Delayed Payment Surcharge to four months becomes unsustainable.
Responding to the argument of Mr. Giri it is submitted by Mr. Samdarshi that the imposition of delayed payment surcharge in the present case is upon non consumption of electricity and not on default of payment in energy consumed. It is argued that what the respondents seek to recover in the present case, is interest on non consumption. He submits that it is not a case where the petitioner after securing benefit of consumption of electricity has failed to deposit the charge rather it is a circumstance where there has been shortfall in consumption of electricity for reasons attributable to the respondent distribution company and it is for such purpose that the provision of remission has been given under Clause-13 of the HT agreement.
Having considered the arguments of learned counsel, the issue which falls for consideration before this Court is, whether the order of the Consumer Grievance Redressal forum suffers from any infirmity when it has required the Distribution Company to issue a fresh bill after calculating delayed payment surcharge for four months in view of the notification dated 29.7.1994 which requires a disposal of a claim within four months.
Before proceeding, this Court would place on record that Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 11 during the pendency of the present proceedings, the entire amount towards annual minimum guarantee charge of Rs. 2,25,604/- has been deposited by the petitioner and thus the only issue which remains insofar as the bill dated 22.1.2014 is concerned, is the amount towards delayed payment surcharge.
Clause 6(a) of the notification dated 29.7.1994 requires the competent authority to dispose of the claim raised by a consumer under Clause 13 of H.T. Agreement within four months and which claim has to be filed within 90 days of the raising of the bill as per Clause 6(b) and after payment of 50 per cent of AMG amount in terms of Clause 4(c) of the said notification. There is no dispute on facts that the petitioner raised his claim after fulfilling the pre requisites of deposit of 50 per cent and which has been adjudicated upon. Now clause 6(a) of the notification dated 29.7.1994 requires a disposal of such claim within four months, Clause 4(c) provides that upon deposit of the 50 per cent amount for raising a claim for remission, the electric line of the consumer is not to be disconnected and that the interest would accrue on the balance amount found payable after settlement of claim. The claim raised by the petitioner in respect of the Annual Minimum Guarantee charge was disposed of only on 24.8.2011 and was circulated almost one year thereafter on 18.7.2012 however while raising the bill, the Revenue Officer has calculated the delayed Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 12 payment surcharge for the entire period beginning from June, 1999 until December, 2014 in two phases one up to May, 2007 and other beginning June, 2007 until December, 2014. The claim of the petitioner towards remission against AMG charges having been found justified, the bill was reduced from Rs. 19,08,808/- to Rs. 7,28,800/- and since the petitioner had already paid 50 per cent of the bill while raising his claim hence by the bill dated 22.1.2014 the balance outstanding towards annual minimum guarantee charge after remission, for Rs. 2,25,604/- was raised. Clause 16.2 of the tariff notification 1993 provides for payment of interest / delayed payment surcharge upon non payment of a bill raised. As noted hereinabove in terms of Clause 6(a) of the notification dated 24.7.1994 a claim for remission is to be decided within four months meaning thereby no sooner a claim is decided and the petitioner fails to pay the same that he would become liable for payment of surcharge as per Clause 4(c) @ 2 % per month as per Clause 16.2 of the Tariff Notification of 1993. Reference also is made to a bench decision of this Court since reported in 1995(2) PLJR 715 (M/s. Gaya Roller Flour Mills Pvt. Ltd. vs. Bihar State Electricity Board and ors.) in this connection.
It is not a case where a claim of remission has been rejected. On the contrary the claim has been accepted and which has resulted in an issuance of a fresh bill placed at Annexure-6 to Patna High Court CWJC No.3638 of 2014 (7) dt.26-09-2014 13 the writ petition and which was issued only on 22.1.2014. The claim having been allowed and the bill towards AMG of Rs. 19 lakh and odd raised on 22.1.2000 as contained in Annexure-1 being reduced under the order dated 24.8.2011 to Rs. 7,28,800/- of which he had already deposited 50 %, it surprises me as to how the petitioner could have been saddled with a delayed payment surcharge for a period prior thereto more particularly in view of Clause 4(c) of the notification dated 29.7.1994 as contained in Annexure-4, the nature of impost i.e. a charge being on non consumption, the time taken by the respondent General Manager cum Chief Engineer to adjudicate on the issue and to circulate it after one year of passing of the order on remission.
However, since the petitioner has not chosen to question the imposition of Delayed Payment Surcharge on its legality, nor has questioned the order of the Consumer Forum on this issue, this Court would not record any opinion thereon but would keep such issue open for discussion in an appropriate proceedings. Nonetheless in view of my discussions hereinabove, I find no reasons to interfere with the opinion expressed by the Consumer Forum in its order dated 30.4.2014 passed in Case No. 54 of 2014 and in consequence whereof the writ petition filed by the Distribution Company bearing CWJC No. 13707 of 2014 stands dismissed.
Ordered accordingly.
S.Sb/- (Jyoti Saran, J) U