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2007 DIGILAW 675 (PAT)

S. Sabbir Ashraf v. Bihar State Electricity Board

2007-04-03

S.N.HUSSAIN

body2007
Judgment S.N.Hussain, J. 1. Heard learned Counsel for the petitioners, learned Counsel for the respondent-Bihar State Electricity Board (hereinafter referred to as the Board) and its authorities. 2. This writ petition is for quashing order dated 11.07.2005 (Annexure 7), by which the General Manager-cum-Chief Engineer of the Board rejected the claim of the petitioners and directed the Electrical Executive Engineer, Dak Bunglow Road, Patna, to realise the amount of punitive energy bill, which has been raised in accordance with the tariff schedule of the Board for using unauthorised additional load of 8.42 kilo watt beyond the sanctioned load of 5 kilo watt against A/c No. 181661 and also for using unauthorised additional load of 4.2 kilo watt beyond the sanctioned load of 7.6 kilo watt against A/c No. 67837. 3. The petitioners are Doctors and they have their Clinic, namely, Ashraf Clinic in S.P. Verma Road, Patna and they have two C.S. III electrical connections, out of whom A/c No. 181661 is in the name of petitioner No. 1, whereas, the other, namely, A/c 67837 is in the name of petitioner No. 2 and their respective sanctioned loads are 5 kilo watts and 7.6 kilo watts, respectively. 4. From the claims of the parties, it appears that the premises was inspected on 28.06.2001 and on the same date inspection reports (Annexures 3 series) were submitted by the authorities of the Board, in which, it was stated that the actual load found on the said two connections were 13.42 kilo watts and 11.08 kilo watts, respectively, and, accordingly, bills dated 11.07.2001 were given by the respondents to the petitioners, which were raised under the penal provisions of Clause 16.9 of the tariff, which provided for levying charges on the connected load for the period of 180 days prior to the date of inspection and to multiply the said calculated charges by three. 5. The said bills were challenged by the petitioners in this Court vide C.W.J.C. No. 6124 of 2002, in which it was specifically stated that the petitioners did not dispute the findings of the inspection reports and admitted that the loads on the two connections were enhanced. 5. The said bills were challenged by the petitioners in this Court vide C.W.J.C. No. 6124 of 2002, in which it was specifically stated that the petitioners did not dispute the findings of the inspection reports and admitted that the loads on the two connections were enhanced. But they specifically claimed that there was no question of theft or pilferage of any electricity as they had given prior notice to the concerned authorities not once but repeatedly with regard to the enhancement of loads, but it were the authorities concerned, who had not taken any step. In this connection, they relied upon their letters dated 15.03.2001 and 05.05.2001 (Annexures 2 series). However, according to the respondents, the said notices regarding enhancement of loads were never received in their office and in any event the request for enhancement of loads was not made in the prescribed form. 6. In the said circumstances, this Court by order dated 13.09.2002 found that as per the decisions of this Court in the case of Bihar State Electricity Board and Ors. V/s. Sri Bir Ispat 1998(3) B.L.J.R. 1985 as well as in the case of J.M.D. Alloys Ltd. V/s. Bihar State Electricity Board and Ors. reported in 1999 (3) P.L.J.R. 481 , relying upon several decisions of the Hon ble Apex Court, recourse to the provision of Clause 16.9 of the tariff could be taken only after giving an opportunity to the consumer. But in the said writ petition it was specifically found that before issuing the impugned bills, the petitioners were, admittedly, not given any notice or opportunity of being heard. In the said circumstances, the two impugned bills were set aside and the said writ petition was allowed on 13.09.2002 (Annexure 5) with the following observations: It will be, however, open to the General Manager, P.E.S.U. to give a notice in writing to the petitioners regarding the enhancement of loads on the two electricity connections. The General Manager will hear the petitioners and give them an opportunity to produce materials in support of their claim that they had given prior information regarding enhancement of loads and there was no attempt of theft or pilferage of energy on their part. After hearing the parties and taking into consideration the materials relied upon by them, the General Manager will pass an appropriate order in accordance with law. After hearing the parties and taking into consideration the materials relied upon by them, the General Manager will pass an appropriate order in accordance with law. The liabilities of the two petitioners shall abide by the order passed by the General Manager. It will also be open to the Board to raise the current/future bills for the two connections in question on the basis of the actual connected loads. 7. Since the said order of this Court was not complied within time, M.J.C. No. 1266 of 2003 was filed by petitioner No. 2 of this case, which was disposed of by this Court by order dated 11.01.2005 (Annexure 6) when the learned Counsel for the respondent-Board stated that in compliance of the direction of this Court, a revised bill was given to the said petitioner, who made payments on the basis of the revised bill and in compliance of the courts direction, General Manager had heard arguments on behalf of the said petitioner and order on the matter was reserved with him, which was likely to come very shortly. In the said circumstances, liberty was given to the said petitioner that if he was aggrieved by the order passed by the General Manager, it would be open for him to seek remedy in accordance with law. 8. About six months thereafter the General Manager-cum-Chief Engineer of the Board passed impugned order dated 11.07.2005 rejecting the claim of the petitioners and directed the Electrical Executive Engineer, Dak Bunglow Road, Patna, to realise the amount of punitive energy bill, which was raised on the basis of tariff schedule of the Board for using unauthorised additional load on the two electric connections, namely, A/c No. 181661 and A/c No. 67837 of petitioners No. 1 and 2, respectively. In the said order, it was specifically found that the sanctioned load on the said two electric connections were 5 kilo watt and 7.60 kilo watt, respectively, but the petitioners were using electrical load of 13.42 kilo watt and 11.80 kilo watt, respectively. Hence, the total of the extra load on the two connections were about 13 kilo watt. 9. Mr. Hence, the total of the extra load on the two connections were about 13 kilo watt. 9. Mr. J.P. Shukla, learned senior counsel appearing for the petitioners very fairly accepted the use of aforesaid electric loads of 12 kilo watt and 14 kilo watt on the said two electric connections and submitted that the bills of the said two accounts with respect to the above mentioned higher electric loads with effect from six months prior to the date of inspection dated 28.06.2001 (Annexure 3 series) have already been paid by the petitioners although earlier petitioners specific claim was that they were liable to make such payment only from the date they applied for enhancement of load i.e. 15.03.2001 (Annexure 2) and not from six months prior to inspection dated 28.06.2001. He, however, challenged the other part of the impugned order and submitted that there was no occasion for the authorities of the Board to levy penal charges on the bills in the facts and circumstances of this case, which did not attract the provision of Clause 16.9(A)(iv) of the Tariff notified in the Bihar Gazette (extra-ordinary) dated 23.06.1993. 10. On the other hand, Mr. Vinay Kirti Singh, learned Counsel for the Board, admitted that the petitioners have made the entire payment of the bills in accordance with the impugned order, except the penal charges, but he emphatically argued that there had been unauthorised enhancement of load by the petitioners on the said two electric connections without any information to the Board and hence the petitioners were liable to pay the penal charges in accordance with the impugned order of the General Manager-cum-Chief Engineer, which is legal, proper and justified. 11. From the aforesaid averments of the parties as well as from the materials on record, it is quite apparent that the only matter left in dispute between the parties is with respect to payment of punitive charges of energy bill. 11. From the aforesaid averments of the parties as well as from the materials on record, it is quite apparent that the only matter left in dispute between the parties is with respect to payment of punitive charges of energy bill. As per the impugned order of the General Manager-cum-Chief Engineer of the Board dated 11.07.2005, by which the petitioners claim was rejected, the Electrical Executive Engineer, Electrical Supply Division, Dak Bunglow Road, Patna, was directed to realise the amount of punitive energy bill, which had been raised in accordance with the tariff schedule of the Board for using unauthorised additional load of 8.42 kilo watt beyond the sanctioned load of 5.00 kilo watt, total of 13.42 kilo watt against A/c No. 181661 and also for using unauthorised additional load of 4.2 kilo watt beyond sanctioned load of 7.60 kilo watt totalling to 11.8 kilo watt against A/c No. 67837 and was kept in abeyance by letter No. 892 dated 05.03.2003 by the said officer himself, but no delayed payment surcharge/interest was directed to be charged on the disputed amount till the date of the decision. 12. It is apparent from the materials on record that it had been the petitioners claim from the very beginning that much prior to the inspection made by the authorities of the Board dated 28.06.2001, they had sent repeated letters to the Board as far as on 15.03.2001 and 05.05.2001 (Annexures 2 series), in which it was specifically stated that the existing load was not sufficient for their Clinic because there was requirement of more power and, therefore, requested for increasing the kilo watt of the meters of the aforesaid two connections. Although the respondent-Board had denied receipt of any such letter from the petitioners on the ground that there was no endorsement of receipt on the copies of the said letters by the office of the Electric Executive Engineer, but the petitioners specifically claimed that there is no such practice in the office of the concerned Electrical Executive Engineer to grant receipts of petitions/letters filed/sent to him, which would be clear from the fact that even Annexure 1 attached to the counter-affidavit filed by the Board in the earlier writ petition bearing C.W.J.C. No. 6124 of 2002 is a letter, admittedly, received in the office of the said Electrical Executive Engineer, but it does not contain any endorsement. Learned Counsel for the petitioners submitted that the authorities of the Board are concealing the said fact merely with a view to harass the petitioners although they had been taking all necessary steps in accordance with law and they had been raising the said fact from the very beginning, about which this Court took judicial notice in its earlier order dated 13.09.2002 passed in C.W.J.C. No. 6124 of 2002, in which the General Manager-cum-Chief Engineer was directed to hear the parties and give them an opportunity to produce materials in support of their claim that they had given prior information regarding enhancement of loads and that there was no attempt of theft or pilferage of electrical energy on their part. 13. However, from the impugned order of the General Manager-cum-Chief Engineer of the Board, it appears that he has not applied his mind to the facts and circumstances of the case as mentioned above and decided the matter on the only point that there was no endorsement of receipt over the said letters of the petitioners (Annexures 2 series) although neither there was any claim that the said letters were forged or fraudulent nor the said authority had come to any such conclusion and hence there was no occasion for him to discard the said letters merely on that ground. 14. It is clear from the materials on record that the respondents have miserably failed to show from any chit of paper whatsoever that the office of the Electrical Executive Engineer used to make endorsement of receipt upon letters/applications received in the office, hence it is quite apparent that there was a bona fide claim raised in that regard by the consumers (petitioners) against the Board. Therefore, in the aforesaid circumstances, no clear case of theft or pilferage for drawing electric energy at a load higher than the sanctioned load is made out against the petitioners, specially when apart from their letters (Annexures 2 series), the petitioners were always ready and willing from the very beginning to pay the extra load charges on their two electric connections and, in fact, they have already paid the said charges much earlier. This fact clearly shows reasonableness and fair play on the part of the petitioners, which are applicable in every sphere of activities and had to be considered by the Government and its instrumentalities if their actions are likely to affect the persons adversely. 15. The provision of Clause 16.9(A) of the Tariff notified in Bihar Gazette (extra-ordinary) dated 23.06.1993 provides penalty as per Column. IV thereof. But the said provision is with respect to theft, pilferage and malpractice detected during the course of inspection, whereas in the instant case the petitioners themselves had, much prior to the inspection, wrote to the authorities of the Board for enhancement of load as their clinic required higher load as per its consumption. In the said circumstances, there is no question of any theft, pilferage or malpractice and the facts of the case also show that the petitioners also had no intention to commit any such acts and thus there was no occasion for levying penal charges as per the said provision. 16. Furthermore, since the petitioners claim to have sent their applications for enhancement of load in March, 2001 much prior to the inspection held in June, 2001, hence according to the aforesaid provision the above mentioned application could have been considered as satisfactory evidence to show the date from which the petitioners had started the consumption of higher load, which would be about three months prior to the inspection. But inspite of the aforesaid facts the petitioners have themselves accepted the order of the authorities and have accordingly paid the entire extra load charges on their two meters with effect from six months prior to the inspection. Hence, that aspect of the matter does not remain in issue now. 17. In view of the aforesaid discussions with respect to the provision of law and the claims of parties as well as the materials on record, including the impugned order, it is quite apparent that no case is made out for any penalty and the impugned order levying punitive charges has been passed by the General Manager-cum-Chief Engineer of the Board without applying his mind to the aforesaid facts and circumstances as well as the materials and provisions of law. 18. 18. Accordingly, the said impugned order dated 11.07.2005 (Annexure 7) rejecting the petitioners claim and directing the Electrical Executive Engineer, Electric Supply Division, Dak Bunglow Road, Patna, to realise the amount of punitive energy bill is hereby quashed and the instant writ petition is allowed. However, in the facts of this case there would be no order as to cost.