Messrs. Chatterjee Brothers v. State of W. B. — 1997 DIGILAW 190 (CAL)

JUDGMENT S.B. Sinha, J. The petitioner in this application has, inter alia; prayed for the following relief : "(a) to issue a Writ in the nature of Mandamus commanding the respondents concern not to give effect or further effect of the order dated 9th March, 1996 passed by D. Som, Secretary, West Bengal State Electricity Board, Bidyut Bhavan, Salt Lake City, Calcutta-700 091 and to act in accordance with law." 2. The fact of the matter is not much in dispute. 3. The petitioner is a firm registered under the Indian Partnership Act and carries on business, object whereof is to carryon agricultural operation as also pisciculture operation. According to the petitioner, in view of the provisions of West Bengal Agricultural Produce Marketing (Regulation) Act, 1972, and West Bengal Town and Country (Planning and Development) Act, 1979, pisciculture would also come within the definition of agriculture. It is further the contention of the petitioner that even the Central Government in terms of circular dated 10.5.94 as contained in Annexure 'H' to the writ application, requested the State Governments that electricity and water should be made available to fish farmers at concessional rates by the State Governments as is done for agriculture. By reason of another circular letter dated 5.8.94, it was stated that : "I am directed to refer to this Ministry's letter of even number dated 10.5.94, on the subjects, cited above (copy enclosed). It is requested that the matter to treat fish farming as an allied activity of Agriculture for supply of water and electricity at concessional rates to the fish farmers, may kindly be looked into and action taken in this regard may be initiated to this Department urgently." 4. Petitioner's further contention is that even the State Bank and NABARD had been considering pisciculture as a part of agriculture in the matter of grant of loan. 5. It appears that 3 writ petitions were filed before this court by the petitioner questioning bill raised by the West Bengal State Electricity Board treating the venture of the petitioner as a commercial one, purported to be in terms of a clarification issued by the Chief Engineer, Commercial, dated 2.3.94 as contained in Annexure 'M' to the writ application. 6. It appears that 3 writ petitions were filed before this court by the petitioner questioning bill raised by the West Bengal State Electricity Board treating the venture of the petitioner as a commercial one, purported to be in terms of a clarification issued by the Chief Engineer, Commercial, dated 2.3.94 as contained in Annexure 'M' to the writ application. 6. In one of the writ application, a learned Judge of this court, inter alia, held that as the petitioner had been undertaking pisciculture operation for the purpose of selling, its venture was commercial in nature. 3 appeals were preferred, - 2 by the West Bengal State Electricity Board against interim orders passed by this court and another appeal by the petitioner, which were marked as F.M.A.T. Nos. 2629 of 1994, 384 of 1995 and 60 of 1995. By a judgment and order dated 5.1.96 the Division Bench upon taking into consideration rival contentions made by the parties, inter alia, observed as follows : "We are constrained to hold in the facts and circumstances of the present case that the grouping of pisciculture within the circular dated 2.3.94 for being charged at commercial rate had nothing to do with the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 or the concept of an agricultural produce. We cannot hold the classification as made by the West Bengal State Electricity Board under the cover of the impugned circular dated 2.3.1994 being No. Com/6/93/94/10 to be in any manner arbitrary or illegal. No discriminatory treatment had been given, in our view, to the unit of the appellant petitioner. We cannot hold the classification as made by the West Bengal State Electricity Board under the cover of the impugned circular dated 2.3.1994 being No. Com/6/93/94/10 to be in any manner arbitrary or illegal. No discriminatory treatment had been given, in our view, to the unit of the appellant petitioner. Hence we do not find any justification whatsoever in interfering with the order as passed by the learned trial Judge but then we would grant an opportunity to the appellant-writ petitioner to make a representation before the West Bengal State Electricity Board through the Secretary for it being treated as an agricultural unit and if such a representation is made, the West Bengal State Electricity Board would consider the same within a period of six weeks from the date of filing of the representation after the appellant-writ petitioner is given an opportunity of being heard." It was further held : "We do not find any substance in the contention of M/s. Chatterjee Brothers that a broader category as framed by the West Bengal State Electricity Board is arbitrary, capricious and unreasonable resulting in un-equals to be treated as equals thereby violating Art. 14 of the Constitution of India. The Board was empowered to ask for uniform tariff rate from industries classified under one category. The categorisation of fisheries under the categorisation of commercial consumers to be charged at rate A (Commercial) by itself does not appear to be illegal or perverse or without a basis whatsoever. The learned single Judge thus failed to appreciate that if the Board by a notification made an alteration in the rates of energy tariffs and its associated stipulations, then such altered rates, tariffs and stipulations would be treated as a part of the original agreement in super-session of the charges which was previously in vogue. The learned Judge indeed should not have interfered in the manner so as to give an instalment as he did by way of passing the order impugned by allowing the writ petitioner-respondent to deposit only 25% of the amount billed. The learned Judge indeed should not have interfered in the manner so as to give an instalment as he did by way of passing the order impugned by allowing the writ petitioner-respondent to deposit only 25% of the amount billed. We would also in a similar fashion and in a like manner as in the first Appeal filed by M/s. Chatterjee Brothers against the West Bengal State Electricity Board direct an opportunity to be given to the writ petitioner M/s. Chatterjee Brothers to make a representation before the West Bengal State Electricity Board within two weeks from the date of this order and the Board will give a full-throated hearing to the respondent writ petitioner M/s. Chatterjee Brothers in accordance with law before the remaining dues of the West Bengal State Electricity Board are realised in accordance with law. We cannot allow a preferential treatment in favour of M/s. Chatterjee Brothers in perpetuating the continuity of the previous rate of tariff as enjoyed by it earlier by way of continuity in the category of a consumer with agricultural status." 7. However, the learned Judges, keeping in view the facts and circumstances of the case, directed the petitioner to file representation before the West Bengal State Electricity Board through the Secretary and directed the Board to dispose of the same within the period fixed thereby. 8. Pursuant to and in furtherance of the said judgment, the petitioner filed a representation in terms of a letter dated 21.1.96 which is contained in Annexure 'J' to the writ application. Despite the fact, that in terms of the Division Bench judgment, it was the West Bengal State Electricity Board which was to dispose of the matter, a hearing was given by the Secretary of the Board and the said authority disposed of the petitioner's representation in terms of an order dated 9.3.96 holding, inter alia, therein that agricultural tariff is basically provided to small and marginal farmers for having higher production as the petitioner carries on its pisciculture operation with profit motive, it is running a business. As regards the jurisdiction of the Chief Engineer, Commercial, to issue the aforementioned purported clarification dated 2.3.94 is concerned, it was held that he was competent therefor and the said clarification was also ratified by the Board. As regards the jurisdiction of the Chief Engineer, Commercial, to issue the aforementioned purported clarification dated 2.3.94 is concerned, it was held that he was competent therefor and the said clarification was also ratified by the Board. Curiously enough, it is, however, stated that the said authority acted completely within the rules and after taking necessary due approval from the authorities concerned. 9. Mr. Saktinath Mukherjee, learned counsel appearing on behalf of the petitioner, inter alia, raised the following questions. 10. Keeping in view the provisions of various Acts as also the principles of economy a person carrying on a development market cannot be said to be doing so for commercial purpose, in as much as, even an agriculturist can sell their surplus products to outsiders so as to meet the requirement of an urban population. Learned counsel submits that for the purpose imposing charges in terms of the tariff framed by the West Bengal State Electricity Board in exercise its power under s. 46 read with s. 49 of the Indian Electricity Act, the charges are fixed keeping in view the nature of supply and not upon taking into consideration as to whether an agriculturist makes profit and/or sells his production to outsiders or not. Reliance in this connection has been placed to a decision reported in AIR 1957 SC 768 and in Surendra Kumar Sen Chowdhury vs. Sm. Chandrabrata Nath & Ors. reported in 34 CWN 1063 : AIR 1931 Cal 135. It is further submitted that in any event, as the Board had not heard and disposed of the matter in terms of the judgment of the Division Bench of this Court, the impugned order must be held to be bad in law. In support of the aforementioned contention, reliance has been placed by Mr. Mukherjee in Jai Kishore Bhakat vs. Union of India, reported in 84 CWN 795. Learned counsel further submits that there is nothing on record to show that the said purported clarification dated 2.3.94 was either ratified by the Board or was issued by the Chief Engineer, Commercial, upon obtaining prior approval of the competent authority. Mr. Mukherjee further submits that in any event, the said clarification cannot have any retrospective effect. 11. Mr. Learned counsel further submits that there is nothing on record to show that the said purported clarification dated 2.3.94 was either ratified by the Board or was issued by the Chief Engineer, Commercial, upon obtaining prior approval of the competent authority. Mr. Mukherjee further submits that in any event, the said clarification cannot have any retrospective effect. 11. Mr. P.S. Biswas, learned counsel appearing on behalf of the respondents, however, submits on the other hand, that this writ application is misconceived, in as much as, the Division Bench of this court in the aforementioned judgment has clearly held that the Board is competent to levy different tariffs for agriculturist and pisciculturist. 12. Keeping in view the order proposed to be passed, in my opinion, it is not necessary for this court to dwell at length the submissions made by the learned counsel for the parties. There cannot be any doubt that in terms of s. 5 read with s. 12 of the Electricity (Supply) Act, 1948, the Board is a body corporate and can sue and be sued in its own name. The decision on behalf of the Board is taken by the Chairman and members of the Board. The Secretary of the Board in terms of the provisions of the said Act, is merely an officer of the Board, so is the Chief Engineer, Commercial. Unless and until an appropriate order for delegation is issued in favour of any of the officers of the Board, statutory functions of the Board cannot be performed by them. No such order of delegation has been placed before this court. The respondents have also failed to substantiate the findings of the Secretary of the Board in his impugned decision to the effect that the impugned clarification issued by the Chief Engineer, Commercial was either ratified by the Board or he was competent to issue the same and therefor he obtained prior approval. In fact, the aforementioned findings are contradictory to and inconsistent with each other. If the Chief Engineer, Commercial was competent to issue the said circular and the same had been issued with prior approval of the Board, the question of the same being ratified by the Board again would not have arisen. 13. In fact, the aforementioned findings are contradictory to and inconsistent with each other. If the Chief Engineer, Commercial was competent to issue the said circular and the same had been issued with prior approval of the Board, the question of the same being ratified by the Board again would not have arisen. 13. In this case, it is not necessary for this court to go into the question as to whether the said purported clarification should be given a retrospective effect or not, in as much as, in the event if it be held by the Board that the petitioner who had been carrying on pisciculture operation, was not entitled to the rate applicable to the agriculturist, the question of the said clarification having retrospective or prospective operation may not arise. 14. The Board is entitled to frame its own tariff in exercise of its power under Ss. 46 and 49 of the Indian Electricity Act, and while doing so, it is bound by a directive issued by the State Government as contemplated under s. 78A thereof. It may be true that any direction issued by the Central Government may not be binding, but the materials which were considered by the Board at the time of framing of the tariff, namely, as to whether the aforementioned recommendation of the Central Government had been taken into consideration by the State and/or the Board or not, are only with the Board and have not been produced before this court. In this situation, I am of the opinion that the Division Bench with a purpose directed the petitioner to file a representation before the Board and directed it to pass an appropriate order. This, in my opinion, was all the more necessary, keeping in view the fact that in the event any clarification was at all to be issued, it was the board itself which could issue a clarification unless it can be shown that the Board had delegated its power in favour of any of the officers of the Board. Keeping in view the aforementioned facts and circumstances of this case, I am of the opinion that as the Secretary of the Board had no jurisdiction to pass the impugned order, the same cannot be sustained. Keeping in view the aforementioned facts and circumstances of this case, I am of the opinion that as the Secretary of the Board had no jurisdiction to pass the impugned order, the same cannot be sustained. In that view of the matter, West Bengal State Electricity Board is hereby directed to comply with the order passed by the Division Bench in the aforementioned F.M.A.T. Nos. 2629 of 1994, 60 of 1995 and 384 of 1995 disposed of on 5.1.96, after giving an opportunity of hearing to the petitioner at an early date and preferably within a period of 4 weeks from the date of communication of this order. In the event, the petitioner has been paying its bills raised at the commercial rate, it would continue to do so, but the same shall be without prejudice to its rights and contentions and shall be subject to the ultimate order that may be passed by the Board. In the event, it is found that the petitioner is entitled to refund, there cannot be any doubt whatsoever that the excess amount paid by the petitioner shall be adjusted from the future bills. 15. The application is disposed of with the aforementioned directions. In the facts and circumstances, however, there will be no order as to costs. Application is disposed of.