Kisan Cold Storage v. South Bihar Power Distribution Company Ltd. through its M. D. , Patna
2014-08-01
MIHIR KUMAR JHA
body2014
DigiLaw.ai
ORAL ORDER Heard learned counsel for the parties. 2. Learned counsel for the petitioner prays for and is allowed to remove the name of Bihar State Electricity Board by substituting it South Bihar Power Distribution Company Limited. 3. The prayer of the petitioner in this writ application reads as follows: "1. ….. for quashing of entire proceeding of certificate case no. 14/2010-11, pending before certificate officer, Bhagalpur requisite filed by Certificate holder Electrical Superintending Engineer, Electric Supply Circle, Bhagalpur (Bihar State Power (Holding) Company Ltd.) against the petitioners with allegation to electric charge dues amount of Rs. 9,48,492/- which is illegal, being holding a consumer No. HBP-1579 (HTS-1); and during pendency of the case order dated 5.3.2013 of certificate officer, Bhagalpur be stayed by which certificate officer has passed order of arrest (warrant) again against the petitioners." 4. Learned counsel for the petitioners has submitted that the impugned order dated 05.03.2013 directing for issuance of warrant of arrest passed by the Certificate Officer, Bhagalpur in Certificate Case No. 14 of 2010-11 is wholly bad both on facts and in law. In this regard, he has sought to explain that the petitioners had filed their objection on 22.01.2013 but the Certificate Officer, without having passed any order on such objection of the petitioners had proceeded to pass impugned order. 5. Mr. Vinay Kirti Singh, learned counsel appearing on behalf of the South Bihar Power Distribution Company Limited (hereinafter referred to as ‘the Company’), has submitted that actually the petitioner had never filed an objection in terms of Section 9 of the Bihar Public Demands Recovery Act (hereinafter referred to as ‘the Act’) and the application dated 22.01.2013, which is being referred to an objection, is only an application for recalling of warrant of arrest. 6. In the considered opinion of this Court both, the learned counsel for the petitioner and the learned counsel for the Company, seem to be correct only in part. It is true that the petitioner has not filed a formal objection under Section 9 of the Act, but then at the same time, from the averments made in paragraph nos.
6. In the considered opinion of this Court both, the learned counsel for the petitioner and the learned counsel for the Company, seem to be correct only in part. It is true that the petitioner has not filed a formal objection under Section 9 of the Act, but then at the same time, from the averments made in paragraph nos. 2 and 3 of the Annexure-1, it would be clear that the petitioners had raised objection with regard to recovery of the amount on the ground of the Cold Storage unit being covered under the Bihar Industrial Policy and thus entitled for certain exemption by way of minimum guarantee charges and other allied dues of electricity bills which is said to be amount in consideration in the certificate proceedings. Thus the actual objection of the petitioner was that such amount could not be recovered into certificate proceedings. When such an objection was filed on the ground of Bihar Industrial Policy and a prayer was also made for recalling of the warrant of arrest, the Certificate Officer, technically may be correct in not deciding the objection because of the prayer made only for recalling of warrant of arrest but at the same time he ought to have not passed a mechanical order as has been done by him on 05.03.2013. 7. In the order dated 05.03.2013, all that has been written by the Certificate Officer is that the requisitioning authority had intimated that the certificate debtor was not entitled for any sort of concession/remission. If this was the stand of the requisitioning authority, the Certificate Officer was definitely required to pass an order either accepting the plea of the petitioners or rejecting the same. But, having not done that the certificate officer had straightway passed an order for issuance of warrant of arrest which is definitely not in the spirit of the provisions made under the Act. 8. In that view of the matter, the order dated 05.03.2013 is hereby quashed and the warrant of arrest issued against the petitioner is directed to be recalled. 9. Having held so, this Court must now come into on the main issue as to whether a Cold Storage was ever entitled to get protection by the Industrial Policy for getting the remission of the electricity bill.
9. Having held so, this Court must now come into on the main issue as to whether a Cold Storage was ever entitled to get protection by the Industrial Policy for getting the remission of the electricity bill. It is this aspect of the matter, which was to be decided by the Certificate Officer, keeping in view not only scope of the Industrial Policy, but also the terms and conditions of the agreement between the petitioners and the Bihar State Electricity Board now succeeded by the Company. 10. As the petitioners themselves have not filed the objection under Section 9 of the Act in a consolidated manner bringing on record all the relevant facts particularly the Industrial Policy and the agreement the Certificate Officer also cannot be faulted in leaving the matter undecided and taking a coercive step for recovery of the amount. Now however when this Court has quashed the impugned order dated 05.03.2013, it would give liberty to the petitioners to file a compact objection along with relevant documents including the copy of Industrial Policy and the agreement in terms of Section 9 of the Act within a period of one month from today and if it is done so, the officers representing the Company who have submitted their requisition will file their reply with the relevant materials in next one month from the date of filing of the objection by the petitioner. The Certificate Officer, thereafter, having heard the parties, shall pass a reasoned order either accepting or rejecting objection of the petitioner within a period of two months of filing of the rejoinder by the Company. 11. It goes without saying that if any order adverse to the interest of the petitioners is passed, they shall have remedy of appeal under Section 60 and also revision under Section 62 of the Act. 12. It is however made clear that if the petitioners do not file their objection within a period of one month from today, the Certificate Officer shall proceed to realize the amount by taking all coercive steps as is available to him in law. 13. With the aforesaid observations and directions this writ application is disposed of.