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In the meantime, all the appeals were disposed of by the Hon'ble Apex Court vide its judgment dated 15.4.2009.

7. As a matter of fact, the BSEB was getting reimbursement of increased cost of power from the certain categories of consumers on quarterly / yearly basis since long. In the year 1999 when they issued circulars for fuel surcharge, consumers challenged the validity of calculation before the Patna High Court bench, later on Jharkhand High Court and Hon'ble Supreme Court of India as well.

(b) In addition, DVC tariff from the year 1991-92 to 1996-97 increased every year but BSEB has considered this increase only from 01.05.1997. While making the calculation of Fuel Surcharge, BSEB considered increased rate of DVC tariff.

iv) Charging of fuel surcharge on unconsumed units of LTIS, CS 2 and CS 3 categories of consumers who are entitled to pay for minimum guarantee unit.

It has been submitted that while issuing the fuel surcharge circular, BSEB has considered only actual consumed units by these categories of consumers; whereas BSEB has charged fuel surcharge on unconsumed units also. The issue has been raised before the court that these unconsumed units are also being considered for arriving at the rate of fuel surcharge as Board has already collected the money from these categories of consumers.

(v) Recalculation of fuel surcharge after the bifurcation of Jharkhand State Electricity Board (JSEB) from Bihar State Electricity Board (BSEB) with effect from 01.04.2001.

This issue was raised for the first time before the writ court stating therein that JSEB has bifurcated from BSEB and have started functioning independently of their own. Ratio of power consumption is different after the bifurcation. As per lump sum calculation it was observed that earlier almost 30-35% power was being consumed by bifurcated BSEB and 65% to 70% power was being used by the consumer of JSEB. In addition, major industrial consumers i.e. Fuel Surcharge payable consumers are in the area of JSEB, as such, recalculation of fuel surcharge rate from 01.04.2001 to 31.12.2003 is necessary based on the actual figure of JSEB keeping the formula intact.

 The formula of fuel surcharge is clear, inasmuch as, Denominator has to be the same number of units on which the fuel surcharge is being levied. In the present case, the Board has not considered the unconsumed unit while arriving at the denominator, hence the Board has to work out the rates of fuel surcharge by adding the unconsumed unit in the denominator.  This issue was not raised before the Patna High Court and consequently also not before the Supreme Court, because at that time the consumers were not aware of the existence of that circular, since it was an internal circular. But however, before the Ld. Single Judge, this issue was raised by the Petitioner / consumers. It was contended that since numerator consisted of the units purchased and units generated sold to fuel surcharge paying consumers, therefore, unconsumed units on which the Board is also levying fuel surcharge from the category of commercial service consumers and LTIS (Low Tension Industrial Services) also has to be added to the denominator. This would result in increasing the denominator and the moment the denominator increases, the rate of fuel surcharge will automatically decrease.