Verma Press, Bakerganj v. Accountant General, Bihar
2012-05-18
RAVI RANJAN
body2012
DigiLaw.ai
JUDGMENT I have heard learned counsel for the petitioner, the respondent no. 1 as well as respondent nos. 2 to 4 and have also perused the records of this case. 2. This writ application appears to have been filed seeking quashing of clause 6 of the tariff framed by the respondent- Bihar State Electricity Board (hereinafter to be referred to as “the Board”) vide its internal notification No. COM/TAR/904/2000-17 dated 31.05.2001 and notification dated 28.07.2001 being ultra vires of section 26 of the Indian Electricity Act as well as for quashing of audit objection no. RAO/EB/VI/02 dated 23.01.2004 raised by the Accountant General, Bihar, Patna directing the respondent no. 3 to bill the petitioner at the rate of 144 units per KW per month, i.e., 1738 units per month for the months of June, July and August 2001 and at the rate of 288 units per KW per month, i.e., 3456 units per month from September 2001 to March 2003. Petitioner also seeks quashing of the consequential bill raised for the month of August 2004 to the tune of Rs. 2,49,175.26 and also for restoration of his electricity connection. However, at the time of hearing learned counsel for the petitioner submitted that he has already undertaken on 15.12.2011 not to press the relief no. 1(a) with regard to the quashing of clause 6 of the tariff framed by the respondent-Board. 3. The petitioner was NDS consumer and his meter was burnt in June 1996. Thereafter, he was being charged at the minimum guaranteed units on the basis of the existing rules. Petitioner’s meter was replaced in the month of April 2003. Suddenly, in the bill raised for the month of August 2004, a copy of which is appended as Annexure 4/A to the writ application, an amount of Rs. 2,49,241.34 was shown as arrear and subsequently, due to non-payment of the aforesaid arrears, electricity supply of the petitioner has been disconnected compelling the petitioner to file ;this writ application. 4. Learned counsel for the petitioner submits that the controversy springs from the provision of the notification issued by the Board which remained in existence for a brief period. The notification in question was issued on 31.05.2001. It went under amendment again on 28.07.2001 and, thereafter, it was published in the Official Gazette on 05.11.2001, however, it was again revised in the year 2002.
The notification in question was issued on 31.05.2001. It went under amendment again on 28.07.2001 and, thereafter, it was published in the Official Gazette on 05.11.2001, however, it was again revised in the year 2002. Learned counsel further contends that the meter was burnt in the year 1996, however, no steps were taken either to replace it by the respondent-Board or to ask the petitioner to supply the meter. This was the position when the notification in issue has come up on 31.05.2001 which was not even published in the Official Gazette at that point of time. Thus, it is urged that the respondent-Board never intended to replace the meter or even charge according to the new notification rather the same was done, as stated in the counter affidavit, due to the audit objection in the year 2004. 5. A counter affidavit has been filed on behalf of the respondent nos. 2 to 4 as well as respondent no. 1, i.e., the Accountant General. 6. A stand has been taken that the bill has been raised only on the basis of the audit objection dated 04.08.2004 which has been appended as Annexure A. It has also been stated in the counter affidavit that a notice to change the meter has been given to the petitioner to avoid the average bill, however, nothing has been brought on record to demonstrate that and admittedly they were charging the petitioner on the basis of minimum guarantee. Even the aforesaid respondents have stated in paragraph 11 of their counter affidavit that the objection raised by the auditor is not correct as it has already held that the tariff cannot apply with effect from a retrospective date and as such, the calculation made by the audit team is required to be recalculated for the period commencing from June 2001 to 27.07.2001, however, from 28.07.2001 the calculation has to be made under 28.07.2001 tariff. It is also admitted that a subsequent notification has come up on Ist of November 2002 whereby the Board has almost reverted back to the provisions equivalent to the earlier notification of 1983 so far the issue of replacement of meter and bill to be charged after the meter becoming defective are concerned. 7.
It is also admitted that a subsequent notification has come up on Ist of November 2002 whereby the Board has almost reverted back to the provisions equivalent to the earlier notification of 1983 so far the issue of replacement of meter and bill to be charged after the meter becoming defective are concerned. 7. Learned counsel for the petitioner has placed reliance upon several of decisions of this Court to show that the notifications dated 31.05.2001 and 28.07.2001 could not have been made effective unless there was a publication of the same in the official gazette as otherwise it would amount that the same was not known to the public in general. It is also admitted position that the publication of such notification in gazette has occurred on 05.11.2001. Hence learned counsel submits that so far the bills raised for the period June 2001 till November 2001 are concerned, the same were bad and illegal inasmuch as the notification which was published in Gazette on 05.11.2001, cannot be said to be effective from a retrospective date. One of such decisions this Court to be discussed in this regard would be that rendered in Triputai Techpack Pvt. Ltd. v. Bihar State Electricity Board and others, reported in 2003(4) Patna Law Journal Reports, 544. Learned counsel submitted that in the aforesaid decision this Court had gone to the extent to hold that since the Board has neither replaced the meter nor has given any notice to the petitioner for change of the meter, it was not fair and just on its part to charge the raised billing and even without going into the validity of the notification dated 31.05.2001, the enhanced bill had been set aside and a direction was given to the Board to issue fresh bill to the petitioner in accordance with law.
In another decision dated 06.04.2010 rendered in C.W.J.C. No. 3229 of 2003 (Binita Rani v. The Bihar State Electricity Board and others) same view has been taken by a Single Bench of this Court and after scrutinizing all the relevant decisions including the decision in Triputai Techpack Pvt. Ltd. (supra) it has been held that the Board can charge on the basis of raised tariff notification only after its publication in the official gazette on 5.11.2011 as, unless such publication is made, any notification which is in custody of the Board cannot be held to be known to the public in general. 8. Mr. Vinay Kirti Singh, learned counsel for the respondent-Board, also places reliance upon the selfsame aforesaid decisions to show that even assuming that the bills in accordance with the notification dated 31.05.2001 for the period of June 2001 to October 2001 could not have been raised on enhanced basis due to non-publication of the notification in the gazette, however, it has also been held by this Court in the aforesaid decision that there would be no question of giving notice for replacement of the meter after publication of the notification dated 05.11.2001. Learned counsel further submitted that that this Court has held in the case of Binita Rani(supra) that, in view of the law laid down in Triputai Techpack Pvt. Ltd. (supra), the Board can charge on the basis of raised tariff notification with effect from the date of its publication in the official gazette. However, that would not be the end of the matter as the Board has again come up with a notification no. 477 dated 29.10.2002, as contained in Annexure 3, the relevant provision being clause 9 of the said notification under the heading “defective/damaged/burnt meter supply”. The relevant provision of the aforesaid notification is quoted as under: “9.DEFECTIVE/DAMAGED/BURNT METER SUPPLY: In case of meter being defective/damaged/ burnt, the Board or the consumer, as the case may be, shall replace the same within three months from the date of the meter becoming defective/damaged/ burnt, a standard meter as specified by the Board. During the period of said three months, the consumption will be assessed and billed on average consumption of previous three months from the date of meter being out of order or the average consumption for the corresponding three months of the previous year, or the minimum monthly charge whichever is the highest.
During the period of said three months, the consumption will be assessed and billed on average consumption of previous three months from the date of meter being out of order or the average consumption for the corresponding three months of the previous year, or the minimum monthly charge whichever is the highest. Such consumption will be treated as actual consumption for all practical purposes until the meter is replaced/rectified. Electricity duty shall be levied on consumption so calculated. 9. It would be apparent from the aforesaid provision that the Board or the consumer will have to replace the defective/damaged/burnt meter by a standard meter as specified by the Board within three months and during the period of the aforesaid period of three months, the consumption will be assessed and billed on average consumption of previous three months from the date of meter being out of order or the average consumption for the corresponding three months of the previous year, or the minimum monthly charge, whichever is the highest. Such consumption will be treated as actual consumption for all practical purposes until the meter is replaced/rectified. 10. From the notification no. 477/COM/TAR-904/2000(P-II) DATED 29.10.2002, which has been appended alongwith the aforesaid notification, it appears that the Secretary of the respondent-Board has widely circulated the same to all its officials and categorically stated that it would be effective from 1st of November, 2002. 11. Learned counsel for the Accountant General submits that the aforesaid notification of 2002 was enforced vide notification no. 477 dated 29.10.2002 and that has been taken care in the audit report also. So far the other issues are concerned, it has been submitted that the audit objection has been made only after taking into consideration the new tariff notification which had been supplied by the respondent-Board, however, learned counsel is not in a position to say, specially in view of the judicial pronouncements of this Court, that the notifications of May 2001 and July 2001 could have been taken into consideration without its publication in the Gazette and the bill could have been raised on that basis. He has not been able to establish that the notification published in the aforesaid Gazette on 5th of November, 2001 would be effective from a retrospective date, i.e. from June 2001 for which the petitioner has been charged. 12.
He has not been able to establish that the notification published in the aforesaid Gazette on 5th of November, 2001 would be effective from a retrospective date, i.e. from June 2001 for which the petitioner has been charged. 12. In view of the rival submission and on consideration of the records of this case and specially in view of the earlier pronouncements of this Court as dealt with in the preceding paragraphs, in my considered opinion, the action of the respondent-Board was not just and proper in raising the bill of the petitioner in accordance with the notifications dated 31.05.2001 as well as 28.07.2001 without its publication in the official gazette, which was eventually done on 05.11.2001, as the same would not have a retrospective effect. However, it would be proper on the part of the respondent-Board to raise the bill on the basis of such publication from Ist November, 2001 in view of the decision of this Court in Binita Rani (supra). The petitioner cannot claim that even after publication of the notification dated 28.07.2001 in the official gazette on 05.11.2001 it was not known to him and since he was not given any notice for supply of the meter, the bill was not chargeable in terms of the aforesaid publication. Thus, following the decision in Binita Rani (supra) it is held that the respondent-Board was competent to charge the raised tariff from 5th of November, 2001 in accordance with the fresh notification which was published in the official gazette. However, at the same time, it is held that since an another notification has come up on 29.10.2002 which was widely circulated vide letter dated 29.10.2002 and, as has been stated that care has been taken in the audit objection also, it would be proper that from Ist of November, 2002 till the date of replacement of meter the respondent-Board should charge and raise bills in accordance with the provisions made in the aforesaid notification. 13. Accordingly, the bill issued by the respondent-Board as contained in Annexure 4/A is set aside and the concerned authority in the respondent-Board is directed to recalculate the amount chargeable from the petitioner in accordance with the direction and observation made in this order and let a fresh bill be drawn on such basis within 15 days from the date of receipt/production of a copy of this order. 14.
14. Since the impugned bill has been quashed and since the respondent-authorities have been directed to raise the fresh bill and as per the direction made in this order, it would be just and proper on the part of the respondent-Board to restore the electricity connection of the petitioner if the same has been disconnected only on account of non-payment of amount with respect to the bill in question here, i.e., the bill as contained in Annexure 4/A, within 48 hours from the date of receipt/production of a copy of this order by the petitioner. However, if the payment of the bill amount is not made after supply of the same within the due date as specified in the fresh bill then the respondent-Board would be at liberty to take any action in accordance with law. 15. At this juncture, the petitioner submits that he may be allowed to pay the bill in instalments. 16. In the opinion of this Court, it would not be possible to give such direction as the same would depend upon the policy adopted by the respondent-Board. However, the petitioner may approach the respondent-Board for such consideration and in case, the respondent-Board is inclined, this order would not come in its way for giving such relaxation to him in accordance with law. 17. Accordingly, this writ application is allowed to the extent as indicated above.