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2002 DIGILAW 1080 (JHR)

Industrial Resources & Monolithic Private Ltd. v. Jharkhand State Electricity Board

2002-09-30

SUDHANSU JYOTI MUKHOPADHAYA

body2002
Order S.J. Mukhopadhaya, J.-The petitioner has preferred the writ petition for quashing the order dated 19th January, 2002 (Annexure-13) passed by the General Manager-cum-Chief Engineer, Ranchi Area Electricity Board, Ranchi, whereby and whereunder, the said officer disposed of the petitioner's claim under clause 13 of the High Tension Agreement (H.T. Agreement for short) for the period 1992-93 to 1998-99 and the bill dated 27th February, 2002 (Annexure-14), raised on the basis of the aforesaid order. 2. The grievance of the petitioner is that the impugned order dated 19th January, 2002 (Annexure-13) has been passed disposing of the claim of the petitioner under clause-13 of the H.T. Agreement without hearing the petitioner and without granting proportionate relief to the petitioner to which it is entitled, as per decisions of this Court and the Supreme Court. 3. The counsel for the petitioner made the following submissions : (i) It was necessary for the Respondents to give an opportunity of hearing to the petitioner before disposing of the claim made by petitioner under Clause-13 of the H.T. Agreement. (ii) The order has been passed by the Respondent No. 2 with a mala fide motive without hearing the petitioner as the petitioner earlier requested to keep A.M.G. bills in abeyance since the petitioner was declared to be a sick Industry and after two years of the court's order. (iii) The bill has not been raised properly as evident from perusal of the break up that for Rs. 9,91,7191- A.M.G. amount, out of which Rs. 2,57,976/- has been paid, apart from remission of Rs. 60,274/- granted. A Delayed Payment Surcharge (D.P.S. for short) of Rs. 8,29,040/- has been raised for the period from 1992-93 to 1998-99. 4. The counsel for the petitioner submitted that even on merit, it will be evident that the order is absolutely illegal. For seven years i.e. from 1992-93 to 1998-99, a total relief given is Rs. 60,274/- out of total bill of Rs. 9,91,7191- which is merely 6% of the total A.M.G. bill. To assume that there is only 6% disruption in power in a year, would be assuming to the extreme in favour of the Board. It was submitted that no remission has been given on the basis of Log Books maintained by the consumer-petitioner and no remission has been given for every month of disruption of power as per High Court's decisions in M/s. Suprabhat Steel Ltd. VS. It was submitted that no remission has been given on the basis of Log Books maintained by the consumer-petitioner and no remission has been given for every month of disruption of power as per High Court's decisions in M/s. Suprabhat Steel Ltd. VS. Bihar State Electricity Board & Others, reported in 1994 B.B.C.J. 369; Bihar Gases Ltd. vs. Bihar State Electricity Board and others, reported in 1991 (2) P.L.J.R. 105; Jamshedpur Rolling Flour Mills vs. Bihar State Electricity Board and others, reported in 2000 (1) P.L.J.R. 230 ; and M/s. Dumraon Textiles, reported in 1994 (2) P.L.J.R. 858. It was submitted that the remission both on account of maximum demand as well as units consumed has to be given to the ability of the consumer, apart from the Log Books maintained by a consumer. The proportionate reduction is to be given for every month of non-supply of power. 5. The counsel for the petitioner tried to impress the court that the claim of remission can be made by a consumer more than the A.M.G. Bills. 6. In respect to the first issue relating to hearing, Mr. M.S. Mittal, the counsel for the petitioner submitted that it was necessary for the Respondents to give opportunity of hearing, particularly, when this Court in some of the cases specifically directed the Respondents to give an opportunity of hearing while disposing the claim of petitioner made under clause 13 of the H.T. Agreement. It was also submitted that the Respondents had not heard the petitioner. The request made by the petitioner to keep the A.M.G. bills in abeyance, was also disposed of. Reference of letters dated 14th February, 2000 and 1st February, 2000 given in the order while disposing the petitioner's claim under clause 13 of H.T. agreement two years after the letters. According to the counsel for the petitioner, even from Annexure-A, it will be evident that the notice was given on 16th January, 2002 for petitioner's appearance on 19th January, 2002. Though, the petitioner in its rejoinder stated that no such notice was ever given, but the Respondents disposed of the matter on 19th January, 2002 i.e. merely given two days time. Though, the petitioner in its rejoinder stated that no such notice was ever given, but the Respondents disposed of the matter on 19th January, 2002 i.e. merely given two days time. Further, according to the counsel, the sentence with out prejudice to the outcome of the writ petition filed by the consumer" mentioned in this order, though the present writ petition was filed on 2nd April, 2002, shows that the impugned order was passed giving a back date of 19th January 2002. So far as third issue relating to impugned bill is concerned, the counsel re-iterated the facts and highlighted the break up and D.P.S., as mentioned in the third issue. 7. The facts pleaded by the petitioner will show that a number of writ petitions were preferred by the petitioner each year against one or other A.M.G. bill raised by the State Electricity Board. Against the bill for the year 1992-93, amounting to Rs. 36,623/-, the petitioner filed C.W.J.C. No. 2767 of 1993 (R) on the ground that the petitioner was prevented from using power due to power failure. In view of interim order of this court, electrical connection of petitioner has not been disconnected. The writ petition is pending before this court for hearing. For the year 1993-94, against the bill amount of Rs. 1,55,489/-, the petitioner preferred another writ petition, C.W.J.C. No. 2979 of 1994 (R). This Court vide order dated 9th January, 1995 while directed the Respondents to dispose of the petitioner's claim under clause 13 of the H.T. Agreement, also stayed the recovery till final decision and disposed of the writ petition. For the next year, 1994-95, against the bill amounting to Rs. 1,49,665/-, the petitioner preferred C.W.J.C. No. 1529 of 1995 (R) before this Court, which was disposed of on 16th January, 1997 with liberty to petitioner to file petition under clause 13 of the H.T. Agreement, with further direction to the Respondents to dispose of the same after giving opportunity of hearing to the petitioner. It was ordered to take no coercive steps against the petitioner in the meantime. The Respondents raised A.M.G. bill for the year 1995-96 amounting to Rs. 91,325/- to which petitioner filed a petition under clause 13 of the H.T. Agreement for remission and thereafter moved before this Court in C.W.J.C. No. 3022 of 1996 (R). It was ordered to take no coercive steps against the petitioner in the meantime. The Respondents raised A.M.G. bill for the year 1995-96 amounting to Rs. 91,325/- to which petitioner filed a petition under clause 13 of the H.T. Agreement for remission and thereafter moved before this Court in C.W.J.C. No. 3022 of 1996 (R). The said writ petition was disposed of on 18th August, 1996 with direction to petitioner to deposit 25% of the bill amount, with further directions to Respondent No. 2 to consider petitioner's grievance with regard to remission by reasoned order, in accordance with law, after hearing the petitioner. For the year 1996-97, the Electricity Board raised A.M.G. Bill amounting to Rs. 1,31,314/-. The petitioner again filed a petition under clause 13 of the H.T. Agreement for remission, followed by a writ petition before this court in C.W.J.C. No. 2688 of 1997 (R). The aforesaid case was disposed of on 16th September, 1997 with direction to the General Manager to pass a reasoned order after giving reasonable opportunity of hearing to the petitioner and the representatives of the Board, with further direction not to disconnect the petitioner's electrical line for non-payment of A.M.G. charges for the year 1996-97, unless claim is decided, subject to payment of 25% of the bill amount. Another A.M.G. bill of Rs. 2,15,755/was raised for the year 1997-98. Again the petitioner preferred a petition under clause 13 of the H.T. agreement for remission, followed by a writ petition before this Court, C.W.J.C. No. 2204 of 1998 (R). The said writ petition was also disposed of on 23rd September, 1998 giving liberty to petitioner to deposit 50% of the demand amount and direction to the concerned authority to decide the application under clause 13 of the H.T. Agreement. It was directed not to disconnect the electrical connection, if the petitioner deposits 50% of the bill amount. The next financial year 1998-99, the Respondents raised A.M.G. bill for Rs. 2,06,472/-. This time also the petitioner also did not fail to file a petition under clause 13 of the H.T. Agreement, followed by a writ petition before this Court, bearing C.W.J.C. No. 1960 of 1999 (R). The next financial year 1998-99, the Respondents raised A.M.G. bill for Rs. 2,06,472/-. This time also the petitioner also did not fail to file a petition under clause 13 of the H.T. Agreement, followed by a writ petition before this Court, bearing C.W.J.C. No. 1960 of 1999 (R). This writ petition was also disposed of on 9th July, 1999 with direction to the Respondent No. 2 to consider the claim of the petitioner under clause 13 of the H.T. Agreement and to pass a reasoned order after giving opportunity of hearing to the petitioner. It was ordered that if the petitioner deposits 50% of the demand amount, the Respondents shall not disconnect the supply of the electricity. 8. By the impugned order dated 19th January, 2002 (Annexure-13), the G.M. cum-Chief Engineer, Ranchi Area Electricity Board, Ranchi disposed of the claim of petitioner under clause 13 in respect to the period 1992-93 to 1998-99, allowing certain remissions in favour of petitioner on the basis of admitted hours of interruption, with further directions not to charge D.P.S. on the amount of relief granted to the petitioner. 9. Mr. V.P. Singh, learned counsel for the Electricity Board highlighted the aforesaid chronological events and writ petitions preferred by the petitioner. He submitted that the petitioner is not acting bona fidely and disputing the A.M.G. bills of each and every year, as the petitioner feels advantage in creating dispute of A.M.G. Bills and not paying the A.M.G. bills. Only in some of the cases, part payment has been made. He further submitted that the petitioner was given opportunity to appear before the Respondent No.2 and, in fact, as per the provisions, no oral hearing was required to be given to the petitioner. 10. Clause 13 of the H.T. Agreement fell for consideration before this Court in the case of M/s. Suprabhat Steel Ltd. vs. Bihar State Electricity Board & Others (1994 B.B.C.J. 369). The questions, inter alia, fell for consideration before the Division Bench are as follows : "(a) whether for the purpose of grant of remission in the annual minimum guarantee and the maximum demand charges, the total hour of non supply is relevant? (b) whether the Board is entitled to ignore, while considering the claim of the consumers for grant of remission, trippings upto 59 minutes? (b) whether the Board is entitled to ignore, while considering the claim of the consumers for grant of remission, trippings upto 59 minutes? (c) whether book of account maintained by a consumer are relevant and should have been taken into consideration by respondent no. 2 while disposing of the claim of the consumers? (d) whether in view of clause 4(1) of the H.T. agreement, no remission in the maximum demand charges is permissible in law?" 11. So far as remission is concerned, their Lordships held, as under: "Clause 13 of the agreement cannot be interpreted in a restrictive manner as was argued by Mr. Chatterjee. Clause 13 as noticed hereinbefore, on the other hand, must be construed liberally. The Board is bound to grant remission for any duration if a case therefore, is made out. We fail to understand as to why tripping upto 59 minutes is considered to be tripping for short duration or for that matter in connection of business of supply of electrical energy. Trippings, load sheddings or power cuts in whatever form, disruption in supply of electrical energy takes place in clause 1, a consumer as a matter of right would be entitled .to proportionate remission of annual minimum guarantee or maximum demand charges. In such a case it may be open to the Board to show that a trippings or power cuts etc. would not come within the purview of clause 13 of the agreement but when, if any trippings, power cuts or load shedding etc. take the consumer would become entitled to invoke the provisions of clause 13, subject to the condition laid down therein. In a case, however, where the consumer invokes clause 13 of the agreement on the ground that he was prevented from taking supply of electrical energy, the burden of proof shall be on him." 12. On the question of consideration of records maintained by the consumer, the court observed : "With regard to the question as to whether the records maintained by the Board only can be taken for consideration, for the disposal of the claims preferred by the consumers we may observe that the same would depend on the facts and Circumstances of each case. In a case where the remission is claimed only on the basis of trippings, load shedding or power cut on the part of the Bihar State Electricity Board, if it be shown that all the High Tension electrical consumers were supplied electricity through the same feeder, the records maintained by the Board should be the prima-facie evidence for claim of proportionate guarantee of Annual Minimum Guarantee and Maximum Demand Charges. But the same does not mean that the records maintained by the consumers are not admissible in evidence. A consumer is entitled to prove that he had made such arrangements so as to correctly and faithfully record the trippings, load sheddings and power cuts. He is also entitled to show that the Board has not maintained its records correctly. " 13. Thus, it will be evident that the consumer's representation for remission under clause 13 of the H.T. Agreement not only applies in cases of Minimum Guarantee charges, but also Maximum Demand charges and is not only attracted, when the Board is unable to supply electrical energy, but also to a case where a consumer is prevented from receiving or using electrical energy. The records maintained by the Board is a, prima facie, evidence for claim of preparation of guarantee of A.M.G./Maximum Demand charges, but the records maintained by the consumers are also admissible in evidence, though requires proof. 14. The question whether the personal hearing can always be insisted upon where opportunity to make written representation is available, fell for consideration before the Supreme Court from time to time. In the case of Carborundum Universal Limited vs. Central Board of Direct Taxes reported in 1989 Supp. (2) S.C.C. 462, the Supreme Court held that where a statutory provision does not exclude natural justice, the requirement of affording an opportunity of being heard can be assumed, particularly, when the proceedings are quasi judicial. Exclusion, however, can either be by a clear provision or inferred from the scheme, as also the nature of power which is being exercised. Personal hearing in every situation is not necessary and there can be compliance of the requirement of natural justice of hearing when a right to represent is given and the decision is made on a consideration thereof. 15. Personal hearing in every situation is not necessary and there can be compliance of the requirement of natural justice of hearing when a right to represent is given and the decision is made on a consideration thereof. 15. In the case of Union of India vs. Ex-constable Amrik Singh (1991) 1 S.C.C. 654 , the Supreme Court held that every order passed administratively cannot be subjected to the rigors of principles of natural justice. 16. In the case of A.K. Kralpak vs. Union of India, reported in (1969) 2 S.C.C. 262 : A.I.R. 1970 S.C. 150, the Supreme Court held that the aims of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law but supplement it. The rules of natural justice are not embroided rules nor can they be elevated to the position of fundamental rights, was the observations of the Supreme Court, as quoted in Union of India vs. Col. J.N. Sinha (1970) 2 S.C.C. 458 . 17. Admittedly, there is no statutory provision made under clause 13 of the H.T. Agreement to give oral hearing. In one or other case, this Court directed to give hearing to the petitioner, as referred above. What petitioner could have highlighted during the hearing, is the admissible evidence maintained by the petitioner. 18. The petitioner, in this case, has enclosed all the copies of petitions under clause 13 of H.T. Agreement filed for the years 1992-93 to 1998-99. In fact, it is a format furnishing detailed information for claiming relief under clause 13 thereof. In all the formats against the column "Whether the consumer was prevented from receiving or using energy supplied by the Board", the petitioner has mentioned-"Due to power failure, the consumer was prevented from using energy" The statement showing the exact date, number of hours, days, months during which energy was not received, were enclosed with each of the proforma under clause 13, but no evidence was enclosed or cited by petitioner while making such claim. At column 10' to the proforma to claim exemption under clause 13, specific question made "any other matter that the consumer wants to bring to the notice of the Board with regard to its claim for relief under clause 13 of the agreement"-AII the time, the petitioner mentioned "Please refer to the judgment of Supreme Court of India in this regard." 19. From the aforesaid facts, it will be evident that the petitioner had no evidence in its favour to claim for remission for different hours/days/months for the period 1992-93 to 1998-98. There being specific proforma to claim remission under clause 13 of the H.T. Agreement, as details are to be given in the proforma within the specified period, including the matter which the consumer intends to bring to the notice of the Board in the support of its claim for remission, once it is filed within the time stipulated, the question of furnishing any evidence at the stage of hearing does not arise. 20. In the present case, it does not involve a complicated question of law. This is a case where claim of remission to be determined on the question of fact. On receipt of claim under clause 13 of the H.T. Agreement, if it appears to the competent authority that the consumer has not claimed that the Board have not maintained their records correctly or that the consumer intends to lead any evidence in support of its claim, if the competent authority decides the claim on the basis of records maintained by the Board in this regard, it cannot be alleged that the rules of natural justice has been violated or personal hearing was not given. 21. It is pertinent to mention here that the G.M.-cum-Chief Engineer, Area Electricity Board, Ranchi by another order, contained in Annexure-A to the, counter affidavit, rejected the prayer of petitioner to grant relief under Industrial Policy 1995, the Industry being sick. The said order is not under challenge in the present case, nor any argument advanced against the order aforesaid. Therefore, no decision is given in respect to the aforesaid order' dated 19th January, 2002 (Annexure-A to the counter affidavit in the present case). 22. The mala fide as alleged, I am not inclined to give any finding. No individual officer by name having impleaded as party Respondents to the present case. Therefore, no decision is given in respect to the aforesaid order' dated 19th January, 2002 (Annexure-A to the counter affidavit in the present case). 22. The mala fide as alleged, I am not inclined to give any finding. No individual officer by name having impleaded as party Respondents to the present case. Further, one of the writ petition, C.W.J.C. No. 2767 of 1993 (R) being pending, if the authority mention that order is without prejudice to the outcome to the writ petition filed by consumer, it cannot be construed to be a mala fide action on the part of the Respondent No.2. 23. I find no illegality in the order dated 19th January, 2002 (Annexure-13) wherein the authority granted relief of 9,955 units for the year 1992-93; 5,544 units for the year 1993-94; 6,796 units for the year 1994-95; 5,205 units for the year 1995-96; 4126 units for the year 1996-97; 1448 units for the year 1997-98; and 788 units for the year 1998-99. 24. There being no merit, the writ petition is dismissed.