Jharkhand High Court
M/S. Beena Hotel vs Jharkahnd Bijli Vitran Nigam Limited on 27 January, 2022
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3214 of 2021
M/s. Beena Hotel, Chutiya, through one of its Partner Mrs. Darshana
Ajmani, Ranchi ... ... Petitioner
Versus
1. Jharkahnd Bijli Vitran Nigam Limited, through its Managing Director,
Ranchi
2. The General Manager-cum-Chief Engineer, Ranchi Area Supply
Board, Kusai Colony, Doranda, Ranchi
3. The Electrical Executive Engineer, Electric Supply Division, Kokar,
Ranchi
4. The Electrical Superintending Engineer, Electric Supply Circle, Kusai
Colony, Doranda, Ranchi ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. M.S. Mittal, Sr. Advocate Mr. Devesh Ajmani, Advocate For the Respondents : Mr. Mrinal Kanti Roy, Advocate
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Order No. 06 Dated: 27.01.2022 The writ petition is taken up today through Video conferencing.
The present writ petition has been preferred for following reliefs:
(i) to quash the impugned order dated 01.04.2021 passed by the Vidyut Upbhokta Shikayat Niwaran Forum (VUSNF) wherein the complaint filed by the petitioner was rejected on the ground of maintainability;
(ii) to quash the alleged assessment amount raised by the respondents which has been raised in gross contravention of the provisions of the Electricity Act, 2003 as well as the provisions of Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2015;
(iii) to quash the bills for the months of October, 2018 till August, 2019 which have been raised on the basis of High Tension Tariff without there being a High Tension connection;
(iv) to direct the respondents to issue current energy bills from the month of September 2019 on the basis of Commercial Services Tariff, till such time the Respondent-JBVNL makes appropriate arrangement to supply Energy Bills on the basis of High-Tension supply;
(v) to direct the respondents to make all arrangements for giving a High-Tension connection and consequently to execute an agreement under High 2 Tension Tariff and thereafter to raise bills on the basis of High-Tension connection.
2. The petitioner has also filed I.A. No. 449 of 2022 for restraining the respondents from disconnecting the electricity supply to the petitioner's premises and also to restrain them from acting in furtherance of letter no. 3173 dated 18.11.2021 (Annexure-IA-2 to the present interlocutory application) issued by the Electrical Executive Engineer (C&R), Electric Supply Circle, Ranchi.
3. The factual background of the case as stated in the writ petition is that partners of the petitioner - M/s Beena Hotel took an electrical connection under the NDS-II category of Tariff (Commercial Services Tariff) for a sanctioned load of 75 KW for running the hotel. An inspection was made in the premises of the petitioner on 27.11.2018 and a "Load Inspection Report" was prepared by the respondents according to which the connected load was found to be 102 KW instead of 75 KW and as per the said report, the connected load was beyond the maximum limit of Non-Domestic Service Tariff. One of the partners of the petitioner namely, Darshana Ajmani received a letter dated 02.01.2019 (signed on 31.12.2018) issued by the respondent no. 3 - the Electrical Executive Engineer, Electric Supply Division, Kokar, Ranchi, whereby she was informed that during inspection of her premises i.e., Beena Hotel, Station Road, Chutia, the load was found to as 102 KW instead of 75 KW and she was directed to convert the connection from Low-Tension Category to High-Tension category. By way of abundant caution, the partner of the petitioner namely, Darshana Ajmani applied for a High-Tension connection and filled the requisite form along with an application fee of Rs. 500/. Thereafter, she was served with a letter on 31.05.2019 by the respondent no. 4 - the Electrical Superintending Engineer, Electric Supply Circle, Ranchi, whereby a load of 135 KVA in HTS Tariff on 11 KV line was sanctioned, subject to the condition of her depositing Rs. 14,55,300/- as security amount. She was also asked to pay a sum of Rs. 7,64,725/- as a shortfall amount in reference to the inspection held on 27.11.2018. She was further directed to arrange a distribution transformer as per the sanctioned load. In the said letter 3 at para-2, a sum of Rs. 7,64,725/ - was asked to be paid, but no separate bill/calculation sheet/show-cause notice/provisional assessment order/final assessment order was ever issued in that respect. Thereafter, the respondents issued a Corrigendum dated 28.12.2019 amending para-2 of the earlier letter dated 31.05.2019 and she was asked to pay a sum of Rs. 6,92,756/- instead of the earlier amount of Rs. 7,64,725/- as a shortfall amount in reference of inspection dated 27.11.2018, however, again no detail was given as to how the amount of Rs. 6,92,756/ - was arrived at and which provision of law was followed. Nevertheless, in terms with the direction to deposit the security amount of Rs. 14,55,300/-, partner- Darshana Ajmani after deducting the initial security amount of Rs. 2,08,500/, got a bank guarantee of Rs. 12,46,800/- and furnished it before the respondents as security amount. She also took steps to purchase a Transformer. In the meantime, due to outbreak of Covid-19 pandemic, the guidelines of the government prohibited the business of running the hotel. When the Government of India and later on the State of Jharkhand allowed the hotels to re-open with effect from 01.09.2020, the petitioner's partner-Darshana Ajmani addressed a letter dated 27.10.2020 to the respondent no. 4 to provide calculation sheet on the basis of which the petitioner was directed to deposit a sum of Rs. 6,92,756/- as a shortfall amount. Thereafter on 29.10.2020, it was served with a calculation sheet for the months from October, 2017 to August, 2019 raising bills of Rs. 6,92,756/- in respect of shortfall charges due to difference found in connected load and sanctioned load. Since no current electricity bills were being raised by the respondents from September, 2019, Darshana Ajmani made representation dated 02.11.2020 requesting the respondent no. 4 to recall the bills for the period from October 2017 to August 2019 raised by way of difference between Commercial Services Tariff and High Tension Tariff. However, no reply to the representation made by her was received. The petitioner then filed a writ petition being W.P.(C) No. 3811 of 2020 contenting that the demand contained in the calculation sheet did not disclose anywhere that the same was raised pursuant to an assessment under 4 Section 126 of the Electricity Act, 2003 (hereinafter referred to as "the Act, 2003"). Moreover, no such assessment order was served to the petitioner. The said writ petition was disposed of vide order dated 21.01.2021 giving liberty to the petitioner to move before the Vidyut Upbhokta Shikayat Niwaran Forum (VUSNF), Ranchi by filing a complaint. Thereafter, the petitioner approached the VUSNF by filing a complaint which was registered as Case No. 1 of 2021. The VUSNF vide order dated 01.04.2021, however, disposed of the said complaint observing that it did not have the jurisdiction to entertain the complaint filed by the petitioner since it was allegedly a case under Section 126 of the Act, 2003 against which an appeal lies under Section 127 of the Act, 2003. Hence, the present writ petition.
4. The learned Senior Counsel for the petitioner submits that though as per the "Load Inspection Report" dated 27.11.2018, the connected load was found to be 102 KW which was beyond the maximum limit of Non-Domestic Service Tariff, however, on perusal of the relevant Tariff of Commercial category of consumers applicable when the inspection was done (i.e., the tariff applicable from 01.05.2018), it would be evident that there was no outer limit with respect to load for Commercial Service Consumers and besides the energy charges, the fixed charge was to be calculated on the basis of "per connection per month" and not "per KW". It is also submitted that the petitioner had to pay fixed charge of Rs. 225/- per connection per month over and above the energy charges and as such no loss was being caused to the respondents in any manner whatsoever. Moreover, in the next tariff for commercial services applicable from 01.04.2019 also, no outer limit was fixed and commercial connection was to be given to those consumers having load greater than 5 KW. In this Tariff also, the fixed charge was "per connection per month" and not "per KW". It is also submitted that the outer limit of load for commercial category consumers i.e., 85 KW was fixed vide tariff applicable from 01.10.2020 which goes to show that if the JSERC had intended to specify the outer limit, it would have specifically mentioned the same in the earlier tariff as well. Thus, the JSERC consciously did not prescribe an outer limit of load 5 for commercial category of consumers in the applicable tariff. It is further submitted that the inspection was made on 27.11.2018 during which there was no impact on fixed charge as the same was per connection per month.
5. It is also submitted that neither any notice to show cause nor any opportunity of hearing was given to the petitioner. No provisional/final bill was issued to the petitioner which goes to show that the respondents never treated the said inspection to have been done under Section 126 of the Act, 2003. There was no mention of any provision under which the said direction was issued to the Petitioner. The JBVNL has sought to devise its own formula, which is de hors the provisions of the Act, 2003 and JSERC Supply Code Regulations, 2015 and thus the calculation sheet provided by the respondents cannot be said to be an assessment done in terms of Section 126 of the Act, 2003.
6. It is further submitted that the petitioner is a commercial category consumer and until such time the respondents make provision for supply of electricity at 11 KV fulfilling all the conditions for such supply, no bill can be raised on the basis of High Tension Tariff. The learned Senior Counsel for the petitioner puts reliance on a judgment of the Patna High Court, Ranchi Bench rendered in the case of "Bharech Nagar Carbonization Work Vs. BSEB & Ors." [CWJC No. 2557 of 1993 (order dated 6.10.93)], wherein it has been held that unless the Electricity Board does all that it is obliged to do and supply HT electricity, it cannot call upon the consumer to pay tariff applicable to HT supply.
7. Learned Senior Counsel further submits that when the calculation given by the respondents has no legal basis, the petitioner cannot be constrained to make payment thereof before it is granted a High Tension electricity connection. Learned Division Bench of this Court, vide Judgment dated 01.05.2019 rendered in the case of "M/s Rani Sati Rice Mills Vs. Jharkhand Urja Vikas Nigam Limited & Ors." (L.P.A No. 150 of 2017) has been pleased to hold that the respondents ought not to have insisted on payment of existing dues 6 which were raised on the basis HT connection without having provided dedicated transformer to the consumer and without installing any wiring as well as requisite switch breakers necessary for HT consumers.
8. It is further submitted that the definition of "Complaint" as provided under Clause 2(e) of the JSERC (Guidelines for Establishment of Forum For Redressal of Grievances of the Consumers, Electricity Ombudsman and Consumer Advocacy) Regulations, 2020 (hereinafter referred to as "Consumer Forum Regulations, 2020") include the grievance made by the complainant for charging of a price in excess of the price fixed by the Commission for supply of electricity and allied services as also any error in billing. Thus, the grievance raised by the petitioner fall under the definition of the "complaint" and as such the VUSNF had the jurisdiction to entertain the issue raised by the petitioner. Moreover, it was never the case of the respondents that the said proceeding was initiated under Section 126 of the Act, 2003. The respondent no. 4 has clearly stated in the letter dated 29.10.2020 that the calculation sheet was in relation to shortfall charges due to difference in connected load and sanctioned load. Moreover, even in written statement of JBVNL filed before the VUSNF, it was stated that the bill raised against the petitioner was in terms of Regulation 10.8 (billing in case of excess load) of the JSERC Supply Code Regulations, 2015.
9. On the contrary, learned counsel for the respondents submits that since the consumer/petitioner was found availing load meant for HT Tariff and more than the sanctioned load for Commercial Tariff, shortfalls charges due to difference in tariff was assessed in terms of Clause 4.3 to 4.5 and 10.8 of JSERC Supply Code Regulations, 2015 and the petitioner's partner-Darshana Ajmani was asked to ensure payment of the same. It is further submitted that in the complaint case, the petitioner itself sought quashing of the alleged assessment amount raised by the respondents which was purportedly a bill under Section 126 of the Act, 2003 and thus it is not open for the petitioner to contend that the said bill was not an assessment order under Section 126 of the Act, 2003. It is also 7 submitted that the petitioner has an alternative remedy of filing an appeal under Section 127 of the Act, 2003 and as such, the present writ petition is liable to be dismissed as not maintainable.
10. It is further submitted that the respondents have repeatedly been requesting the petitioner to execute an agreement and it is the petitioner who despite having made an application for grant of HT connection of 102 KW and having paid the requisite fee for the same, has refused to enter into an agreement with the respondents for grant of HT connection. Since the case of the petitioner was under Section 126 of the Act, 2003, the provisions of Clause 10.8 of the JSERC Supply Code Regulations, 2015 was taken into account which provides for billing in case of excess load. The petitioner is wrong in contending that there was no outer limit of load for commercial services consumers. Clause 8.1.1 (Execution of Agreement) of JSERC Supply Code Regulations, 2015 clearly provides "the Distribution License may require the applicant to execute an agreement for obtaining new connection, for change of name and for enhancement or reduction of sanctioned load before commencement of supply". It is further submitted that a consumer having NDS-II connection is a consumer of low tension supply, which cannot exceed load of 85 KW (100 KVA) as per Clause 4.2 and 4.3 of the JSERC Supply Code Regulations, 2015 and the JSERC Tariff Order.
11. It is also submitted that since the connected load of the petitioner was found pertaining to HTS category, the shortfall amount with respect to Maximum Demand Charges in HTS Tariff i.e., Rs. 6,92,756/- was charged for the period of October, 2017 to August, 2019. As per JSERC Tariff Order 2015-16, the outer limit for NDS Tariff in the nature of connected load was fixed as 84 KW and as per the prevailing tariff, the said ceiling has not been done away. The petitioner was drawing load which was beyond the sanctioned load and accordingly it was liable to pay shortfall charges. An inspection was done on 27.11.2018 in presence of the petitioner's representative, who duly put his signature on the inspection report. The petitioner's partner-Darshana Ajmani herself deposited application fee of Rs. 500/- for the same vide receipt no. 11296 dated 8 04.05.2019. Since the period from which higher load was being drawn could not be ascertained, the provisional bill was raised for a period of 12 months immediately preceding the date of inspection as per Section 126(5) of the Act, 2003. So far as the demand of Rs. 6,92,756/- is concerned, the petitioner sought a detailed calculation sheet, which was made available to it. The petitioner is unnecessarily trying to confuse between shortfall charges and provisional assessment order. The provisional assessment order issued vide Annexure-7 (Corrigendum issued vide Annexure-8) to the writ application contains the shortfall charges, which the petitioner is liable to pay having drawn electricity beyond the sanctioned load of 75 KW. The petitioner made an application for providing a copy of the calculation sheet on 27.10.2020 and the same was furnished to it on 29.10.2020 i.e., within two days. Thus, there was no delay on the part of the respondents in issuing the calculation sheet. The shortfall charges with respect to energy charges and Maximum Demand Charges were assessed in terms with Clause 10.8 of the JSERC Supply Code Regulations, 2015. Since Annexure-7 was a provisional assessment order under Section 126 of the Act, 2003, the respondents have rightly multiplied the demand by two. The petitioner was furnished with a copy of provisional assessment order and it even admitted that the same was purportedly an order under Section 126 of the Act, 2003. The moment the petitioner exceeded the maximum permissible load of NDS-II connection i.e., 85 KW, it became liable to be charged on the basis of High Tension Connection/Tariff. However, no bill pertaining to HTS Tariff has been raised against the petitioner till date.
12. The learned counsel for the respondents also submits that the judgment relied by learned Senior Counsel for the petitioner is not applicable in the facts and circumstances of the case and hence, no reliance can be placed on the same. Moreover, two transformers are already existing which are supplying electricity exclusively to the premises of the petitioner. The Trivector meter of appropriate capacity to suit the present sanctioned load was already installed on the date of inspection. The respondents have repeatedly been writing 9 to the petitioner to execute a High Tension agreement, however, it is avoiding the same due to vested interest. The petitioner cannot be allowed to draw electricity beyond the sanctioned load without paying the tariff applicable to it.
13. Heard learned counsel for the parties and perused the materials available on record. The petitioner has challenged the order of the VUSNF, whereby the complaint of the petitioner was not entertained on the ground that it was not vested with the power to hear an appeal under Section 127 of the Act, 2003 against the assessment order passed by the assessing authority under Section 126 of the said Act.
14. The thrust of argument of the learned Senior Counsel for the petitioner is that the calculation sheet provided to the petitioner along with letter dated 29.10.2020 cannot be said to be an assessment order under Section 126 of the Act, 2003. In support of the said contention, the learned Senior Counsel has invited the attention of this Court to the process followed by the respondents while issuing the said calculation sheet as well as the procedure required to be followed before passing the order of assessment under Section 126 of the Act, 2003. It is assiduously argued that Section 126 of the Act, 2003 read with Regulations 11.41, 11.42, 11.46 and 11.52 of the JSERC Supply Code Regulations, 2015 prescribe the mode and manner as per which the assessment for unauthorized use of electricity is to be done. The said provisions inter alia provide procedure for issuance of a show-cause notice, serving a provisional assessment order, an opportunity of hearing and thereafter serving a final assessment order. However, in the case in hand, no show cause notice, provisional assessment bill/order, opportunity of hearing or final assessment order has been issued and as such the said calculation sheet cannot be said to be an assessment order under Section 126 of the Act, 2003. It is further submitted that the methodology prescribed under regulation 11.51 of the JSERC Supply Code Regulations, 2015 for assessment of consumption for unauthorised use of electricity has also not been followed while raising the alleged demand by serving the said calculation sheet.
1015. The learned counsel for the respondents has refuted the contention made by the learned Senior Counsel for the petitioner by submitting that from the prayer portion of the writ petition being W.P.(C) No. 3811 of 2021, it would be evident that the petitioner had itself admitted that the said calculation sheet was an assessment order under Section 126 of the Act, 2003. It is further submitted that in the complaint filed before the VUSNF, the petitioner had also sought challenge to the bill raised on the basis of assessment made under Section 126 of the Act, 2003 and as such the VUSNF has rightly rejected the said complaint of the petitioner since the petitioner has the remedy of filing an appeal under Section 127 of the Act, 2003 against the said bill/order.
16. I have perused the order dated 21.01.2021 passed in W.P.(C) No. 3811 of 2020 and on perusal of the same, it appears that the petitioner, in the said writ petition, had sought challenge to the calculation sheet purportedly raised under Section 126 of the Act, 2003. In the said case, as per argument of learned Senior Counsel for the petitioner, the said calculation sheet did not disclose that the same was raised pursuant to an assessment under Section 126 of the Act, 2003. The learned Senior Counsel for the petitioner further prayed for withdrawal of the writ petition with liberty to file complaint before the VUSNF created under Section 42(5) of the Act, 2003. The said prayer was acceded to and the writ petition was dismissed as withdrawn.
17. This Court is of the view that the respondents are wrongly claiming that the petitioner had accepted the said calculation sheet as an assessment order under Section 126 of the Act, 2003, rather the petitioner had used the word "purportedly" which means that the petitioner had not accepted the same, rather had questioned the said calculation sheet. Moreover, the petitioner in the rejoinder affidavit filed before the VUSNF had specifically explained the prayer portion of the complaint by stating that the said calculation sheet given by the respondent no. 4 was purportedly a bill under Section 126 of the Act, 2003 since the figure was arrived at in the said calculation sheet at the rate equal to twice the applicable tariff. Moreover, the 11 petitioner in the said complaint had also challenged the bill raised by the JBVNL on the basis of High Tension Tariff without giving a High Tension connection and the said dispute could have been entertained by the VUSNF being grievance related to error in billing as well as charging of rate in excess of the rate fixed by the JSERC for supply of electricity and allied service.
18. On perusal of the impugned order, it appears that the VUSNF did not determine the issue as to whether the said calculation sheet could have been treated as an assessment order under Section 126 of the Act, 2003, it rather assumed from the petitioner's prayer that the same was an assessment order under Section 126 of the Act, 2003 and came to a finding that it did not have jurisdiction to entertain the said complaint as the petitioner had remedy of filing an appeal under Section 127 of the Act, 2003 against the order passed by the Assessing Authority.
19. I find substance in the argument of the learned Senior Counsel for the petitioner that since in the calculation sheet, the figure was arrived at a rate equal to twice the applicable tariff, it was contended by the petitioner that the same was purportedly raised under Section 126 of the Act, 2003, though without following due procedure as mandated under law.
20. In view of the aforesaid discussion, I am of the considered view that the calculation sheet served upon the petitioner cannot be treated as an order of assessment under Section 126 of the Act, 2003 and as such no appeal under Section 127 of the said Act was maintainable against the said demand.
21. Now, the question before this Court is as to whether this case should be remanded to the VUSNF so as to make fresh adjudication of the petitioner's challenge made to the demand of the respondents vide calculation sheet served upon it or under the present circumstance, it will be appropriate for this Court to exercise extraordinary writ jurisdiction to set the dispute at rest.
22. I am of the view that the VUSNF, in spite of specific direction of this Court failed to determine the issue and proceeded on 12 the wrong assumption that the calculation sheet served upon the petitioner was an assessment order under Section 126 of the Act, 2003 against which an appeal would lie under Section 127 of the Act, 2003 and thus failed to exercise the power vested in it. Under the said circumstance, the dispute in question still remains undetermined and, therefore, remand of the matter will only linger the disposal of the case.
23. For the reasons aforesaid, this Court treating this case as an exceptional one is inclined to exercise extraordinary writ jurisdiction to set the dispute at rest which would also serve the interest of justice.
24. So far as the challenge to the demand raised in the form of calculation sheet is concerned, it appears that the respondents have raised the same on the basis of the difference between connected load and sanctioned load particularly the differential rate between Commercial Services Tariff and HTS Tariff. The said calculation sheet has been questioned by the petitioner contending that a consumer cannot be charged on the basis of HTS Tariff without fulfilling the requirement necessary for HT supply.
25. On the said issue, learned Senior Counsel for the petitioner has put reliance on the judgment of the Patna High Court (Ranchi Bench) rendered in C.W.J.C No. 2577 of 1993(R), wherein the learned Court has held that the Electricity Board cannot compel a consumer to fulfill the requirements of an agreement not yet entered between the parties. If such an agreement is implied by reasons of change of tariff, obviously the consumer can be called upon to pay the charges in accordance with HT Agreement, but only after all the conditions necessary for HT supply are fulfilled by the Board. The Board cannot compel a consumer to pay charges according to the tariff treating it as HT supply. The obligations are mutual and unless the Board does all that it is obliged to do, and supplies High Tension electricity, it cannot call upon the consumer to pay according to tariff while in reality the supply is low tension.
26. The learned Senior Counsel for the petitioner puts further 13 reliance on a judgment rendered by learned Division Bench of this Court in the case of "M/s Rani Sati Rice Mills" (supra) wherein it has been held as under:
7. In these circumstances, we are unable to accept the arguments advanced on behalf of respondents about deemed conversion from L.T.I.S to HTI.S in the backdrop of the fact that no dedicated transformer for this consumer was provided nor any wiring and installation of requisite switch breakers necessary for HTI.S consumers were installed. The respondent had repeatedly asked final bill under L.T.I.S but the same was not raised and the Board insisted for payment of bill which was raised on the basis of HTI.S. The request for payment in installment cannot be treated as acceptance of liability under HTI.S by the appellant while the Board has issued it without following the provisions meant for HTI.S consumer. No provision of law or any applicable code has been cited before us on behalf of the electricity company under which such unilateral or automatic migration of a low tension consumer to a high tension one can take place.
27. In the aforesaid case, it has specifically been held that no unilateral or automatic migration of a low tension consumer to a high tension one can take place. Unless the JBVNL has provided High Tension Voltage Supply Service (HTS) following the provision of law, no bill can be raised against the consumer of Low Tension Industrial & Medium Power Service (LTS) as per HTS.
28. In the case in hand also, it appears that the petitioner had taken electricity connection under NDS-II category of Tariff and the connection has not yet been converted to HTS by following due procedure of law and as such on mere ground that during inspection, the load of the petitioner was found to be 102 KW instead of sanctioned load of 75 KW, raising the demand on the basis of calculation of shortfall charges due to difference in connected load and sanctioned load is contrary to the ratio laid down in the aforesaid judgments.
29. That apart, on bare perusal of the Tariff applicable from 01.05.2018 which was in vogue during the inspection, it appears that neither any outer limit nor lower limit was prescribed for commercial service consumers. In subsequent tariff of the JSERC for commercial service consumers effective from 01.04.2019, though lower limit was 14 fixed as 5 KW, no outer limit was fixed. The outer limit was fixed in the tariff effective from 01.10.2020 as 85 KW for commercial category consumers. Since no outer limit was fixed in the tariff applicable at the time of inspection, the remarks made in the inspection report that the connected load was found to be 102 KW which was beyond the maximum limit of NDS Tariff is contrary to the provisions of the tariff. I find substance in the argument of the learned Senior Counsel for the petitioner that since no outer limit for commercial category consumers was fixed in the applicable tariff, the petitioner cannot be said to have violated the conditions of the tariff even if the load was found to be 102 KW instead of sanctioned load of 75 KW.
30. The learned counsel for the respondents has tried to impress this Court that the tariff applicable during financial year 2015-16 provided outer limit of load for NDS consumer as 84 KW and since the same has not been done away with, that would be applicable to the petitioner. The said argument, in my view, has no leg to stand since the JSERC revises the Tariff from time to time also changing the conditions for providing electricity to the consumers and both the licensee and the consumer are bound by the said Tariff. In the case in hand, since during the inspection, the Tariff Order 2015-16 was not applicable, the respondents cannot be allowed to put reliance on the said Tariff.
31. So far as the fixed charges are concerned, the learned Senior Counsel for the petitioner has highlighted the part of the applicable tariff wherein it was provided that the same would be charged "per connection per month". However, in the impugned demand, the respondents have calculated the fixed charge on the basis of "per connection per KW" which is also contrary to the provisions of the Tariff.
32. Be that as it may. Since there was no outer limit of load fixed in the relevant tariff, it cannot be said that the petitioner was engaged in unauthorized use of electricity. Thus, the petitioner is otherwise not liable to pay penalty under Section 126 of the Act, 15 2003 read with Clause 4.3 to 4.5 and 10.8 of JSERC Supply Code Regulations, 2015.
33. Under the aforesaid facts and circumstance, this Court finds that the impugned demand raised against the petitioner vide calculation sheet is contrary to the applicable tariff during the relevant period and as such the same is liable to be set aside.
34. Both the parties have made allegation and counter allegations against each other for committing delay in conversion of NDS-II connection to HT connection, however the fact remains that the agreement between the petitioner and respondents has not yet been executed and the required formality for granting HT connection is still to be completed.
35. In view of the aforesaid discussion, the present writ petition is disposed of in terms with following orders:
(i) The impugned order dated 01.04.2021 passed by the Vidyut Upbhokta Shikayat Niwaran Forum (VUSNF) is hereby quashed.
(ii) The demand raised against the petitioner in the form of calculation sheet from October, 2017 till August, 2019 is also quashed.
(iii) The competent authority of the respondent-JBVNL is directed to issue energy bills to the petitioner with effect from September, 2019 till date on the basis of applicable Commercial Services Tariff without levying any delayed payment surcharge which shall be paid by the petitioner within fifteen days of the service of the said bill.
(iv) Since both the parties have agreed for conversion to HT connection and they have also proceeded towards the same, the competent authority of JBVNL is directed to expedite the process of providing High-
Tension Electrical Connection to the petitioner.
I.A. No. 449 of 2022 also stands disposed of accordingly.
(Rajesh Shankar, J.) Manish/AFR