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2013 DIGILAW 1354 (PAT)

Photo Zone v. Bihar State Power

2013-12-02

NAVANITI PRASAD SINGH

body2013
ORDER A counter affidavit has been filed pursuant to order dated 21.11.2013. 2. Heard the parties and with their consent, the writ petition is being disposed of at this stage itself. 3. The grievance of the petitioner is that an inspection was conducted in his business premises in the year, 2009. Allegedly, excess load was found. Accordingly, a bill for about Rs 10 lacs was raised. The line was disconnected. Petitioner, being a businessman and having no option, entered into an agreement to pay the bills in installment. He defaulted. The line was disconnected. Again, he undertook to pay the dues and still could not pay. The line remained disconnected. He came to this Court praying that the bill, as raised pursuant to inspection, was not in accordance with the tariff and the Regulations which were statutorily binding on the Bihar State Electricity Board. The bills had to be drawn up in accordance with Section 126 of the Electricity Act, the Rules, Regulations of the Board which are statutorily binding. The entire scheme and the manner of calculation in such event has been given out in the Rules and Regulations (the Supply Code). As it was a case of excess load, not a case of theft, it was a case of unauthorized user and what could be calculated was only in respect of the excess load which was only 8 kilowatts. The consumer, not being aware of all technicalities, did not raise objection at the earliest but had made representation for the bills to be raised in accordance with law. Now, on behalf of respondents, the plea is being taken that once petitioner has entered into the agreement, he is estopped from raising the plea that the bill was not in accordance with law. To the specific question raised by the Court whether the bill is in accordance with the provisions of the tariff and the Rules and Regulations, there is absolutely silence. No effort has been made by the Board to justify the bill. To the contrary, petitioner has demonstrated that the bill is not only wrong but calculations are maliciously wrong. To the specific question raised by the Court whether the bill is in accordance with the provisions of the tariff and the Rules and Regulations, there is absolutely silence. No effort has been made by the Board to justify the bill. To the contrary, petitioner has demonstrated that the bill is not only wrong but calculations are maliciously wrong. If calculations are made according to tariff which, in the present case, would be the Supply Code being Annexure 7 to the Supply Code and, in particular, Clause 3 thereof, there had to be a provisional assessment subject to objections to be raised followed by a final assessment. Nothing of that sort has been done. The billing could only be done in relation to the excess load found. To the contrary, on the face of it, the billing is for the entire load as found on punitive basis. Under no circumstances of unauthorized user of energy for an excess of 8 KW load can a bill of about Rs 10 lacs can be raised. In other words, on the face of it, the bill is de hors the tariff or the Supply Code which are statutorily binding on the Board. In other words, the bill undisputedly is not in accordance with law. If that be the situation, the question is can the respondents say that they have no obligation to follow law and obligation is only upon the consumer to pay as per agreement. In my view, it is too late in the day to say that even though there is an error apparent on the face of the record, they will not correct it as petitioner had agreed to pay the same in installment. There cannot be any agreement to pay the dues which are unlawful. Such an agreement would be contrary and void under Section 23 of the Contract Act. Such attitude of the respondents is also deplorable. Let it be not forgotten that the respondents are State within the meaning of Article 12 of the Constitution and bound, inter alia, by Article 14 of the Constitution. It is well settled that if an act is to be performed in a particular manner then it could only be performed in that manner and all other modes are impliedly prohibited. These are well settled principles. It is well settled that if an act is to be performed in a particular manner then it could only be performed in that manner and all other modes are impliedly prohibited. These are well settled principles. State cannot say that I will act arbitrarily, coerce a person to enter into agreement for restoring electricity and then realize dues which are not legal dues. This high-handedness of the respondents must come to an end. They enjoy monopoly. They enjoy power to prosecute. They cannot act in such a manner. 4. I may only refer to the decision of the Apex Court in the case of L. Hirday Narain –Versus- Income Tax Officer since reported in AIR 1971 Supreme Court 33. In that case also, an assessment was made. The assessee sought to bring to the notice of the Income Tax Officer that there was an error apparent on the face of record. The Income Tax Officer refused to rectify the same on the ground that he has discretion to do it. He would not exercise his discretion. The matter went to the High Court. The High Court held that the power being discretionary, no writ would issue. Further, it held that there was an alternative remedy. The matter was then brought to the Apex Court where not only the order of the High Court was set aside, it was held that the High Court has failed to exercise its jurisdiction vested it but also directed the Income Tax Officer to rectify the mistake holding that if the conditions were appropriate to the exercise of power then a duty was cast upon the authority to exercise it and it was not mere discretion at the will of the authority. The authority could be and ought to be compelled to correct the mistake. Thus, there is no escape that if the bill, as served upon the petitioner, was not in accordance with law then it is the duty of the respondents to correct the bill. They have not been able to justify its correctness in any manner. They forced petitioner to pay 25% of it as a condition for reconnection as evident from Annexure-5. 6. They have not been able to justify its correctness in any manner. They forced petitioner to pay 25% of it as a condition for reconnection as evident from Annexure-5. 6. Next, I may refer to the decision in the case of Hukam Chand Shyam Lal –Versus- Union of India & Others since reported in AIR 1976 Supreme Court 789 and, in particular, what is stated in paragraph 18 which is quoted hereunder: “18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice. … … …” 7. Thus, when the Rules, Regulations and the Supply Code provide for a manner in which assessment can be made, it does not lie in the mouth of respondents to act to the contrary and having acted to the contrary, to say that they will not correct the same merely because they coerced the petitioner to enter into an agreement to reconnect, they being monopolistic organization. 8. Next, I may refer to the decision in the case of M/s Hindustan Sugar Mills –Versus- State of Rajasthan & Others since reported in AIR 1981 Supreme Court 1681 wherein the Apex Court has clearly held that State must do what is just and fair and must not force a party to litigation. 9. In this connection, I may also refer to a judgment of this Court in the case of M/s Shakti Cold Storage & Another –Versus- Bihar State Electricity Board & Others being CWJC No 9309 of 2008 decided on 12.08.2008 wherein this is what has been held: “So far as the reliance placed by both the parties in Central Inland Water case (supra) is concerned, learned counsel for the petitioners harps upon the question of unequal bargaining power, whereas learned counsel for the Board relies upon the observation that the principle may not apply where both the parties are business men and the contract is a commercial transaction. It is evident from a close reading of the said decision that it clearly applies to a situation in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It also applies where a man has no choice, or rather no meaningful choice but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however, unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. It is evident that the contract dated 11.6.2006 cannot be considered a mere commercial transaction where both the parties are business men. The Bihar State Electricity Board is a State created monopoly being the sole supplier of electricity to the petitioners/consumers. The petitioner had no choice but to obtain electricity from the Board on terms and conditions stated by it. If the petitioners had not complied with the demands of the Electricity Board, which in the present case appears to be wholly illegal, they would have no choice but to face disconnection of electric supply as a consequence of which the entire stock of potatoes stored in its Cold Storage by the farmers would become rotten resulting in claims for damages of huge amounts. The situation itself was such that they had no option but to succumb to the demands of the Board and act in a manner so that their electrical supply would not be disrupted.” 10. It may be noted that Board, being dissatisfied, filed an intra Court appeal which has been dismissed. 11. Thus, I have no option but to direct that the bill, as raised by the respondents pursuant to which the petitioner was coerced to an agreement as apparent from Annexure 4, within one month from today, the respondents would correct the energy bill in accordance with the Supply Code which was served on the petitioner pursuant to inspection report dated 26.10.2009 (Annexure 2). The petitioner may file a fresh representation giving his submission as against the bill so raised and pointing out to the authorities, who appeared to have acted contrary to the provisions of Supply Code which binds them. The petitioner may file a fresh representation giving his submission as against the bill so raised and pointing out to the authorities, who appeared to have acted contrary to the provisions of Supply Code which binds them. Once that bill is issued, it shall be treated as a provisions bill in terms of Section 126 of the Act subject to the final bill upon any further objection petitioner may have. Respondents would be bound to give due credit to the amounts already paid and if there is any balance remaining to be paid, petitioner may enter into such agreement for such installment as he may be advised and the respondents may permit. The line would be restored immediately thereafter. 12. If within 30 days from today, the bill is not prepared after taking into account the objections as may be raised by the petitioner, then on the 31st day from today, the electric line of the petitioner shall be restored and the respondents may take their time in revising the bill. It shall then not be disconnected till revised bill is not served. 13. With these observations and directions, this writ petition is disposed of.