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2015 DIGILAW 842 (JHR)

LA-OPALA (R. G. ) LTD. v. JHARKHAND STATE ELECTRICITY BOARD, RANCHI

2015-07-23

PRASHANT KUMAR

body2015
Order : In this writ application, petitioner has challenged the notification issued by Bihar State Electricity Board, fixing the rate of Fuel Surcharge, in view of the judgments of Division Bench of Patna High Court in M/s Pulak Enterprises and analogous cases. The petitioner also challenged the bills raised by the then B.S.E.B. & J.S.E.B. charging the Fuel Surcharge on the basis of impugned notification. 2. The notification challenged in this writ application as well as the bill raised on the basis of aforesaid notification has been upheld by this Court vide judgment dated 08.05.2015 passed in C.W.J.C. No. 2758 of 2000 (R) and analogous cases (M/s Tata Yodogawa Ltd. Vrs. B.S.E.B. & Others). Thus, issues raised in this writ application is covered by the above judgment. 3. Under the said circumstance, this writ application is disposed of in terms of judgment passed in C.W.J.C. No. 2758 of 2000 (R) and analogous cases. Accordingly, this writ application is dismissed. Later On I.A. No. 3582 of 2015 4. In this Interlocutory Application, petitioner has challenged the letter no. 1604 / ESE, Deoghar dated 30.05.2015 (Annexure-6), whereby he has been intimated to pay Rs. 1,53,02,510/-towards the Fuel Surcharge as well as the Delayed Payment Surcharge levied on it. Petitioner had further brought on record by supplementary affidavit Annexure-8 series, the bills raised on the basis of Annexure-6. 5. It is submitted by Sri M.S. Mittal, learned senior counsel for the petitioner that in the instant writ application a Bench of this Court, vide order dated 11.06.2001, had directed that if petitioner pay 50% of the amount of the fuel surcharge, the respondents will not take any coercive step for realizing the rest of the amount. Mr. Mittal submits that still the writ application is pending. Thus, the action of the Board in raising the aforesaid bill and charging Fuel Surcharge is violative of the order of this Court. Sri Mittal further submits that even after disposal of the main case of Fuel Surcharge, respondents is required to revise the bills in view of the Circular issued by the Bihar State Electricity Board vide Office Order No. 3570 dated 01.12.2010, therefore, the respondent are not entitled to raise any bill towards the Delayed Payment Surcharge. In this regard Mr. Sri Mittal further submits that even after disposal of the main case of Fuel Surcharge, respondents is required to revise the bills in view of the Circular issued by the Bihar State Electricity Board vide Office Order No. 3570 dated 01.12.2010, therefore, the respondent are not entitled to raise any bill towards the Delayed Payment Surcharge. In this regard Mr. Mittal relied upon the decision of this Court passed in W.P. (C) No. 6587 of 2007 in M/s Incore Metal and Cement (P) Ltd., Deoghar, Jharkhand. He further relied upon the decision of this Court passed in L.P.A. No. 274 of 2004 in M/s Hotel Woodland Vs. J.S.E.B and M/s Raj Lakshmi Refractories and Ceramics Works etc. Vrs. B.S.E.B reported in (1999) 2 BLJR 1508 . Accordingly, Sri Mittal submits that the the impugned letter as well as bills raised on the basis of said letter are liable to be set aside so far it relates to Delayed Payment Surcharge. 6. On the other hand, Sri Ajit Kumar, learned senior counsel appearing for the respondent, submits that in fact in this case, there is no stay order which prevents the respondent from raising bill of Fuel Surcharge. The court only prevented the respondent from taking any coercive step against the petitioner for realizing the bill of Fuel Surcharge. He further submits that it is settled principle of law that even if the respondent has been restrained from realizing the bill, the said amount mentioned in the bill remained an arrear. Therefore, as per the tariff order prevailing at the relevant time Delayed Payment Surcharge can be charged upon it. Accordingly, Sri Kumar submits that there is no illegality in raising the bill. He further submits that the Board has only raised bill and it had not taken any coercive steps against the petitioner for realizing the said bill. Thus, the interim order passed by this Court has not been violated. He further submits that Office Order No. 3570 dated 01.12.2010 is still not operative, because in Clause (3) of the said order, it is specifically mentioned that the same will become effective as soon as Rs. 100 crore received from M/s CIL. He submits that there is nothing on record to show that the said amount has been received. Thus, at present there is no question for revising of bill raised in the year 2001. 100 crore received from M/s CIL. He submits that there is nothing on record to show that the said amount has been received. Thus, at present there is no question for revising of bill raised in the year 2001. Sri Kumar further submits that similar writ applications i.e. M/s Tata Yodogawa Ltd. and analogous cases, wherein the notification, by which the rate of fuel surcharge has been fixed, has already been dismissed by this Court vide judgment dated 08.05.2015. Thus, now the respondent Board is entitled to raise bill towards the Delayed payment Surcharge. 7. Having heard the submission, I have gone through the record of the case. In the instant case, a Bench of this Court vide order dated 11.06.2001 has passed the following ad interim order:- “During the pendency of both the cases, if the petitioners deposit 50% of the impugned bill amount in respect to fuel surcharge of the year 2000-01, the respondents will not take any coercive step against the petitioners. This order, however, will not be applicable in respect to arrears of earlier period, current bill and other dues, if any.” 8. The aforesaid ad interim order has been considered by this Court in W.P. (C) No. 3005 of 2011 i.e. J.S.E.B. Vrs. M/s Usha Martin Limited, Tatisilwai, Ranchi and after considering the various judgments of the Hon'ble Supreme Court, it has been held that after disposal of the main writ application the position of the party will be restored to its original position as if there is no ad interim order. It is worth mentioning that the main writ application is covered by a judgment of this Court in M/s Tata Yodogawa Ltd. and analogous cases and has already dismissed today. Thus, the above ad interim order has become inoperative and thus, in view of the judgment of the Hon'ble Supreme Court in Adoni Ginning Factory and others Vrs. Secretary, Andhra Pradesh Electricity Board, Hyderabad and others, reported in (1979) 4 SCC 560 , after disposal of writ application, petitioner is liable to pay the Surcharge. 9. The contention of Sri Mittal that the bill requires to be revised in view of the Office Order no. Secretary, Andhra Pradesh Electricity Board, Hyderabad and others, reported in (1979) 4 SCC 560 , after disposal of writ application, petitioner is liable to pay the Surcharge. 9. The contention of Sri Mittal that the bill requires to be revised in view of the Office Order no. 3570 dated 01.12.2010 issued by the Bihar State Electricity Board has no leg to stand, because it is mentioned in the Clause – (3) of the said order that the order will become effective only after receipt of Rs. 100 crore from the M/s CIL. The petitioner has not brought anything on record to show that the said amount has been received from the M/s CIL. Under the said circumstance, the aforesaid Office Order is not operative. Thus, the question of revising the bill raised in the year 2001 does not arise. In the aforesaid facts and circumstances, the decision relied by Sri Mittal in cases of M/s Incore Metal and Cement (P) Ltd., Deoghar, Jharkhand, M/s Hotel Woodland Vs. J.S.E.B and M/s Raj Lakshmi Refractories and Ceramics Works etc. Vrs. B.S.E.B (supra), has no application in the facts of this case, because in those cases the bill has been revised, therefore, this Court as well as the Patna High Court has held that if the bill is revised then in that circumstances Delayed Payment Surcharge is not chargeable. 10. In view of the discussions made above, I find no merit in this interlocutory application. Accordingly, the same is dismissed.