JUDGMENT : 1. The present appeals arise out of a common judgment dated 8.5.2015 passed in CWJC No. 2758 of 2000 (R) with analogous cases which were filed for quashing the Circular No. 345 dated 11.7.2000 and Circular No. 428 dated 16.8.2000 and also for quashing the supplementary bills issued on the basis of the impugned circular. 2. Since the issues involved in both the cases are common, they are being heard together. Brief Facts of Case: 3. In exercise of the power conferred by section 49 of the Electricity (Supply) Act, 1948, the BSEB had framed a Tariff vide Notification dated 21.6.1993, superseding the earlier tariff Notification dated 26.8.1991 and 3.7.1992. 4. On 4.4.1994 the Board issued Circular stating that the fuel surcharge for the period 1992-93 has been determined as 26.14 paise per Kwh and thereafter the Board issued another circular on 5.1.1995 announcing 25.98 paise per KWH as the rate of fuel surcharge retrospectively for the period July, 1993 upto the March 1994. 5. Challenging the levy of fuel surcharge, a batch of writ petition being CWJC No. 2771 of 1995 (R) and analogous matter were filed and with the consent of both the parties a high level committee was constituted and the committee was directed to calculate the fuel surcharge in terms of the 1993 tariff particularly taking into account Clause 17 and submit its report by 31.1.1997 to the Chairman of the Board and the writs were accordingly disposed of. 6. While the committee was considering the issue, the Board issued a circular dated 5.2.1997 notifying the provisional rate of fuel surcharge @ 43.89 paise per KWH for the year 1994-95, @ 72.12 paise per KWH for the year 1995-96 and @ 102 paise per KWH for the period 1.4.1996 onwards. 7. Again challenging the above notifications, writ petition being CWJC No. 1632 of 1997 and analogous cases were filed and during the pendency of the writ on 3.6.1997 the Board decided to levy the fuel surcharge for the year 1997-98 provisionally at the existing rate of 102 paise/KWH. 8. 7. Again challenging the above notifications, writ petition being CWJC No. 1632 of 1997 and analogous cases were filed and during the pendency of the writ on 3.6.1997 the Board decided to levy the fuel surcharge for the year 1997-98 provisionally at the existing rate of 102 paise/KWH. 8. In the meantime the Committee filed an unanimous report and as such the writ petition being CWJC No. 1632 of 1997 with batch cases were disposed of on 30.6.1998 by remanding the matter to the Board with the report of the Committee, directing the Board to take final decision by reasoned order, on the following points:- (i) Whether any modification of clause 16.10.3 of the tariff notification published on 23.6.1993 is required so that the increase in the average unit rate of purchase of energy from DVC, NTPC etc. should be calculated with respect to the year 1991-92 instead of the year 1992-93? (ii) Whether in terms of clause 17 of the aforesaid tariff notification, 20 paise per kwh the increase in fuel surcharge which has been merged in the basis tariff should be considered for adjustment, instead of 32 paise, in terms of clause 17 of the aforesaid notification. If so, whether the impugned circular dated 5.2.1997 be not withdrawn and the consumers be given the benefit of discredit to the period July 1993 to March 1994 and thereafter, and clause 17 of the tariff notification. If so, whether the impugned circular dated 5.2.1997 be not withdrawn and the consumers be given the benefit of discredit to the period July 1993 to March 1994 and thereafter and clause 17 of the tariff notification under section 93 be amended appropriately? 9. After the decision in CWJC No. 1632 of 1997 the Board resolved to amend clause 16.10.3 and clause 17 and further revised the rate of fuel-surcharge by Circular No. AC/Costing 44/98-99-1239 dated 31.5.1999 fixing the revised rates for the years 1993-94 (July 1993 to March 1994) to 1997-98. 10. Again the revised rate of fuel surcharge announced by notification dated 31.5.1999 was challenged by filing of writ petitions being CWJC No. 5542 of 1999 and analogous cases (Pulak Enterprises and Others vs. Bihar State Electricity Board and Others) and the writs were disposed of on 26.6.2000 whereby the Board is directed to work out the rates of fuel surcharge for the year 1996-97 onwards. Para 44 of the judgment read as follows:- “44. In the result, the Board is directed to work out the rates of fuel surcharge for the years 1996-97 onwards after (a) deleting the purchase of electricity from the TVNL as a component of H3 and (b) treating the so called deemed supply i.e. the supply of electricity by DVC to Tisco as supply made by DVC to the Board, as an element of D3. It is further directed to the Board to issue fresh bill after reworking out of the rates.” 11. Against the judgment as aforesaid, the appellant and respondent both filed appeal before the Hon’ble Supreme Court being Civil Appeal No. 7220-39 of 2000 with analogous cases. 12. During the pendency of the appeal before the Hon’ble Supreme Court, the Respondent-Board issued a Circular No. 345 dated 11.7.2000 for revision of the rate of fuel surcharge and the rate fixed for the year 1996-97 (Final) is @ 86.25 paise/KWH, for the year 1997-98 (Provisional) @ 137.20 paise/KWH and for the year 1998-99 (Provisional) @ 164.83 paise/KWH. 13. Pursuant to the aforesaid circular, to the appellant of LPA No. 324 of 2015, the Board raised supplementary bill being revised bill no. 1806 dated. 10.8.2000 for an amount of Rs. 6,59,66,643.45. 14. To the appellant of LPA No. 305 of 2015, the Board raised supplementary bill dated 10.8.2000 for the fuel surcharge of all the five division of the appellant which is as under:- Division/Con. No. Date Due Date Amount USAD (HJAP01=41) 10.8.2000 29.8.2000 17,38,77,531/- WRM (HJAP-52) 10.8.2000 29.8.2000 10,20,68,846/- JFTCD (TT-756) 10.8.2000 29.8.2000 2,63,46,276/- W&WRD (R-2095) (4/96 to 6/2000) 10.8.2000 29.8.2000 10,43,44,399/- UID (TT-272) 10.8.2000 29.8.2000 8,90,296/- By virtue of the interim order of this court the appellant paid some amount as against these bills. 15. Further the BSEB vide circular no. 428 dated 16.8.2000 fixed the rate of fuel surcharge for the financial year 1999-2000 and onwards @ 204.40 paise/KWH and again vide Circular No. 78 dated 17.3.2001, the rate for the financial year 2000-01 @ 244.01 paise per unit. 16. Again writ being CWJC No. 2758 of 2000 and CWJC No. 2757 of 2000 filed relating to calculation of fuel surcharge vide circular contained in letter no. 345 dated 11.7.2000 and letter no. 16. Again writ being CWJC No. 2758 of 2000 and CWJC No. 2757 of 2000 filed relating to calculation of fuel surcharge vide circular contained in letter no. 345 dated 11.7.2000 and letter no. 428 dated 16.8.2000 and by a judgment dated 30.3.2001 the writ was dismissed by holding that no relief can be granted as the same will never reach finality as the impugned letter and decisions being subject matter before the Hon’ble Supreme Court. 17. Against the aforesaid judgment the appellant filed appeal being LPA No. 182 of 2001 with analogous matter and the same were disposed of on 24.7.2001 by remitting the matter to the learned Single Judge for rehearing the case on merit and in accordance with law, but being uninfluenced by the fact of the pendency of the appeal in the Hon’ble Supreme Court, treating the Division Bench judgment of 26.6.2000 as having a binding effect and continuing to operate in all respects. 18. In the meantime, the Hon’ble Supreme Court by order dated 15.4.2009 dismissed the appeal filed by the Board but so far the appeal filed by the appellant with regard to non-accounting of Rs. 100 crores paid by the coal companies, the Hon’ble Supreme Court in para 63 and 64 held as follows:- “63. In the other appeals challenge is to non-accounting of Rs. 100 crores paid by the Coal Companies to the Board. According to the writ petitioners, if the said amount has been shown in the accounts the rate of fuel surcharge would have been different. The High Court noticed that this aspect of the matter has been dealt with by the Board in its rejoinder affidavit wherein it has been stated that as against the total claim of Rs. 356.20 crores on account of loss due to grade slippage, short supply of coal, supply of stones etc. the Coal Companies have agreed to pay Rs. 100 crores in full and final settlement of the claim. But though such decision was taken on 30.8.1998 actual payment has not been made till date. High court observed that payment of the amount would be relevant consideration while calculating the rate of fuel surcharge for the year 1998-99 and not 1997-98. 64. We direct that the actual be worked out within three months from today. The adjustment of Rs. 100 course worked out accordingly. The appeals are disposed of. High court observed that payment of the amount would be relevant consideration while calculating the rate of fuel surcharge for the year 1998-99 and not 1997-98. 64. We direct that the actual be worked out within three months from today. The adjustment of Rs. 100 course worked out accordingly. The appeals are disposed of. Bihar State Electricity Board vs. Pulak Enterprises, (2009) 5 SCC 641 . 19. With regard to the direction regarding giving effect to adjustment of Rs. 100 crores, the BSEB filed modification application being I.A. No. 122-142 of 2009 before the Hon’ble Supreme Court but the same were rejected. 20. Thereafter, the Board issued Office Order No. 3286 dated 22.10.2010 wherein it was stated that the Board had decided to make an adjustment of the rates of fuel surcharge for the financial year 1998-99 by incorporating the amount of Rs. 100 crores receivable from Coal India Ltd. with regard to coal supplies up-to 31.3.1997 and the said adjustment shall be made effective as per the rules as soon as the aforesaid amount of Rs. 100 crores is received. 21. Further on 1.12.2010 the BSEB issued office order number 3570 dated 1.12.2010 whereby the existing rate of fuel surcharge was modified to 158.79 paisa per unit for the financial year 1998-99 but made a stipulation that the aforesaid rate will become effective after the amount of Rs. 100 crores will be received from Coal Companies. 22. Some of the consumers filed Contempt Petition (Civil) No. 240 of 2010 alleging that the Board has not complied the direction of the Hon’ble Supreme Court while re-computing the rate of fuel surcharge for the financial year 1998-99 and the same was rejected vide order dated 15.4.2011, giving liberty to the consumers to seek remedy before the appropriate forum. 23. Pursuant to the judgment passed in LPA No. 182 of 2001, the writ was again heard by the learned Single Judge and finally vide judgment dated 8.5.2015 the writ was dismissed by holding that it is a clear case that BSEB has deleted TVNL component from H1 and H2 against the decision of Division Bench judgment of Patna High Court in M/s. Pulak Enterprises case but by the aforesaid action of the Board the rate of fuel surcharge had not increased rather the same had decreased and therefore no any substantial injustice has been caused to the appellant. 24. 24. It is further held that after the judgment passed in M/s. Pulak Enterprises the petitioners have not filed any application before the Patna High Court for recalculation of rates of fuel surcharge on the basis of levy of fuel surcharge on unconsumed unit levied from CS and LT consumers and as such the petitioner is prevented from raising the issue on the ground of constructive res-judicata. 25. It is further held that since the Office Order No. 3570 dated 1.12.2010 has not been challenged in any forum and the Hon’ble Supreme Court has rejected the contempt after noticing the grievance of the petitioner, in the absence of any prayer in these writ applications the same cannot be entertained. 26. Hence the present appeal. 27. M/s. K. Venugopal and Mr. M.S Mittal learned Senior Counsels with assisting counsels Mr. Vimal Kirti Singh and Shilpi John appearing on behalf of appellants made following submissions:- (i) The learned Single Judge has failed to take into consideration that the impugned circulars were not impugned either before the Hon’ble Patna High Court or before the Hon’ble Supreme Court and as such the appellant was entitled to challenge the said circular on all the grounds available to the appellant and the court could not have restricted the appellant only to the grounds taken earlier before the Patna High Court and Hon’ble Supreme Court in respect of the earlier circulars which were not impugned in the present writ petition. (ii) So far the issue of TVNL the Hon’ble Supreme Court and the Hon’ble Patna High Court very categorically observed that only the H-3 component of purchase from TVNL or from other sources has to be deleted and not the other two components namely H-1 and H-2. The learned Single Judge also in para 26 of the impugned judgment has held that the Bihar State Electricity Board has deleted the component from H1 and H2 against the decision of the Division Bench Judgment but still the learned Single Judge has failed to intervene in the matter on the ground that if the impugned circular continue, no substantial injustice would be caused to the petitioner. (iii) Giving effect to the Patna High Court decision and the Supreme Court order means that increase in unit cost of TVNL alone was to be deleted from H3 and the effect would be that the increase in the cost of power for TVNL would be reduced to “Nil” or “Zero” (i.e. total number of units purchased from TVNL X Nil or zero increase in cost of units purchased from TVNL over the base year because TVNL is deleted from H3 = zero). Deleting total units of power purchased from TVNL as done by the Board allegedly implementation of the Patna High Court decision and the Supreme Court order does not change this value (zero multiplied by zero = zero) (iv) The learned Single Judge failed to appreciate that deleting the units purchased by TVNL from H1 and H2 would only increase the fuel surcharge and not reduce. The Board has manipulated the figure by reducing the quantum of fuel surcharge chargeable units to the large extent which they cannot do as because the calculation for arriving rate of fuel surcharge. (v) The Patna High Court and also the Hon’ble Supreme Court in a very specific term had directed the Board for adjustment of Rs. 100 crores and thereafter also the modification application filed by the Board was also dismissed but the Board has not complied with the direction. (vi) With respect to the adjustment of Rs. 100 crores, a contempt petition was filed in which the Board had placed an Office Order No. 3570 of 1.12.2010 with certain calculations and finally the Hon’ble Supreme Court rejected the contempt case on 15.4.2011 giving liberty to the contempt petitioner to seek their remedy before an appropriate forum if they have any grievance. Since the present appellants were not made parties in the contempt hence the order passed in the contempt case is not binding upon the present appellants. (vii) The learned Single Judge has failed to take into consideration that the Office Order No. 3570 dated 1.12.2010 was issued by the Bihar Board in 2010 by which time the appellant fell within the jurisdiction of the Jharkhand Board which has never adopted the office order. (vii) The learned Single Judge has failed to take into consideration that the Office Order No. 3570 dated 1.12.2010 was issued by the Bihar Board in 2010 by which time the appellant fell within the jurisdiction of the Jharkhand Board which has never adopted the office order. (viii) The learned Single Judge has incorrectly recorded the appellant’s contention that the deemed power supply made by the DVC to TISCO should be excluded as per Hon’ble Patna High Court rather the appellant’s contention was that as per the direction of the Hon’ble Patna High Court, two rates for the supply of power by DVC to TISCO should not be taken into consideration by BSEB while calculating the fuel surcharge. (ix) The entire basis of the fuel surcharge formula is to enable the Board to recover the actual amount paid by the Board by way of increase in the cost of power in a given year and not any other amount in excess and as such the Board, by including 32.58 paisa increase in the year 1996-97 for the power purchased from DVC, has attempted to recover excess amounts from the appellants and other surcharge paying consumers. (x) So far the inclusion of unconsumed unit of CS and LT consumers, the appellant submits that it is not challenging the circular dated 14.9.1999 or the right of the Board to collect the surcharge on unconsumed units rather the appellant’s contention is only that the computation of the fuel surcharge must include in the denominator, the unconsumed units on which fuel surcharge is actually being levied and collected in order to ensure that the computation is strictly in accordance with the framework of the formula. (xi) With regard to the application of a circular dated 17.3.2001 issued by the Bihar Board in the State of Jharkhand, it is submitted that once the Jharkhand Board came into existence on 1.4.2001, it was clearly impermissible to collect fuel surcharge from consumers in Jharkhand based on elements relevant only to the Bihar Board’s purchase of power. (xii) After creation of the State of Jharkhand the calculation of fuel surcharge needed to be revised vis-a-vis the consumption pattern of both the State, increase in cost of fuel and purchase of electricity independently in both the State. 28. Per contra, Mr. Ajit Kumar, the learned Senior Counsel with assisting counsels Mr. (xii) After creation of the State of Jharkhand the calculation of fuel surcharge needed to be revised vis-a-vis the consumption pattern of both the State, increase in cost of fuel and purchase of electricity independently in both the State. 28. Per contra, Mr. Ajit Kumar, the learned Senior Counsel with assisting counsels Mr. Naveen Kumar and Amit Sinha appearing on behalf of JUVNL and Mr. Manoj Tandon, Advocate appearing on behalf of BSEB made following submissions:- (i) The Hon’ble Patna High Court in Pulak Enterprises directed the BSEB to delete the purchase of electricity from the TVNL as a component of H3 and H3 contains not only the factor of TVNL units but also the units purchased from the other sources, thus out of the concerned 737.82 MKWH, as per the judgment only 574.83 MKWH had to be omitted and the balance units i.e. 162.99 MKWH will be raised and as such the rate of Fuel Surcharge will be higher because the H2 has to be approx. 45%-50% of H1. The appellants are under a wrong conception that H3 shall be zero and as such the whole numerator i.e. H1XH3 shall become zero. (ii) The moment the Patna High Court directed for excluding purchase from TVNL as an element of H3, the necessary corollary was that the purchase as a whole had to be eliminated and therefore the correct interpretation of the Patna High Court judgment as has been done and implemented by the Board is that H1, H2 and H3 of the TVNL purchase was required to be removed and that was done by the Board. (iii) The reason followed by the Board to the aforementioned extent also supports the general interest of the consumer who have been charged less in case of exclusion of TVNL from H1, H2 and H3 in comparison to only deletion as a component of H3 while retaining H1 and H2 as shown in the calculation sheet annexed with the additional counter affidavit. (iv) The Division Bench of Hon’ble Patna High Court in (Pulak Enterprises supra) proceeded on the basis of deleting of TVNL as a whole from any other sources and if the appellants fell aggrieved with the finding of the Division Bench of the Patna High Court it should not have filed fresh writ before this court but it should have to complain before the same court for non-compliance of the direction of the Patna High Court. (v) Once the Board purchases power from TVNL it must include the purchase in H1 and H2 for giving benefit to fuel surcharge paying consumers even though it will not be capable to take into consideration H3 i.e. the increase in the average unit rate of purchase of energy is absolutely illogical and contrary to the spirit of fuel surcharge formula and as such the calculation furnished by the appellant by showing excess rate sought to be realized by the Board by deleting H1 and H2 is absolutely incorrect. (vi) Till 1.4.2001 the date of creation of JSEB, the BSEB operated in both the States and even after the creation of JSEB vide resolution dated 20.3.2001 the JSEB adopted all the rules and notifications issued by the BSEB and that fact has been accepted by the appellants and they had been paying all other charges under 1993 tariff up till 31.3.2003 and as such they cannot be allowed to challenge against only one component of tariff i.e. Fuel Surcharge. (vii) The Division Bench of Patna High Court in para 38 held the issue of non-inclusion of the unconsumed unit as mere academic value and as such challenge to the rate of fuel surcharge on the ground of non-inclusion of the unconsumed unit in the total units sold on which the fuel surcharge is leviable that is A2, B2, C2, is barred by principle of constructive res judicata. (viii) As a consequence of direction of Hon’ble Patna High Court, the Board has taken into consideration only one rate of purchase from DVC and as such complied with the direction of Hon’ble Patna High Court as well as Hon’ble Supreme Court. (viii) As a consequence of direction of Hon’ble Patna High Court, the Board has taken into consideration only one rate of purchase from DVC and as such complied with the direction of Hon’ble Patna High Court as well as Hon’ble Supreme Court. (ix) The appellants have chosen to use the obiter observations given in para 36 of the Division Bench judgment it is an admitted position that though the DVC has revised its tariff from year to year, the Board so far has not recognized the revision and has been paying it at rates applicable in the year 1991-92 rather the law laid down is that the source being one there cannot be two rates of purchase or increase in the average unit rate of purchase and finding of this Hon’ble Court on the DVC issue is only to the extent “in these premises I am unable to appreciate how the Board can treat the sale of electricity by the DVC to TISCO as a separate class or category for the purpose of computing D3. (x) In para 44 of the Judgment of Hon’ble Patna High Court it is clearly held while reworking the rates of the fuel surcharge, the Board shall treat the so called deemed supply i.e. the supply of electricity by DVC to TISCO as supply made by DVC to the Board as an element of D3 and as such while recalculating the fuel surcharge the Board treated DVC as a single source and has applied normal rate of purchase of power from DVC while recalculating the fuel surcharge for the year 1996-97 and onwards. The Board had treated the power purchased by the TISCO from DVC as the power directly purchased by it from DVC. Thus the Board has strictly followed the direction of the Hon’ble Patna High Court in the matter of deemed supply to TISCO while reworking the fuel surcharge for the years 1996-97 and the appellant has challenged it on the wrong assumption that the Hon’ble Patna High Court has directed that the entire purchase of electricity by the TISCO from the DVC be deleted from D3. (xi) Only direction contained in para 44 of the judgment of Division Bench is that the amount of purchase of electricity by the Board for supplying power to TISCO through DVC has to be merged with its other purchase of electricity being made by the Board from DVC for supply of electricity to other consumers and it did not go into the question much less decided that for the year 1996-97 onwards there will be no increase in the rate of fuel surcharge on the head of DVC. (xii) Argument of the appellant with regard to revision of formula after bifurcation of State of Bihar cannot be accepted for the reason that the impugned circular have been issued prior to the bifurcation i.e. in the year 1999-2000 and even circular no. 78 dated 17.3.2001 was issued by the BSEB for the period 2000-2001 before the creation of JSEB thus the same is applicable in the area of State of Jharkhand as per the provisions contained in the Bihar Re-organization Act. (xiii) Till 1.4.2001 the date of creation of JSEB, the BSEB operated in both the States and even after the creation of JSEB vide resolution dated 20.3.2001 the JSEB adopted all the rules and notifications issued by the BSEB and that fact has been accepted by the appellants and they had been paying all other charges under 1993 tariff up till 31.3.2003 and as such they cannot be allowed to challenge against only one component of tariff i.e. Fuel Surcharge. 29. The learned Counsel of the appellant prays for admission of case and also for interim relief during the pendency of the case. On the other hand the learned counsel for the respondents prayed for the dismissal of the case in limine at the admission stage itself as the learned Single Judge has given the detailed finding on the every point and finally dismissed the writ. 30. With regard to the deletion of TVNL component Mr. Venugopal submitted that the Board in the impugned Circular has violated the direction of Patna High Court and also the Hon’ble Supreme Court by deleting not only the increase in the cost of power purchased by the Board from TVNL from H3 but also by deleting it from H1 and H2. On the other hand Mr. Venugopal submitted that the Board in the impugned Circular has violated the direction of Patna High Court and also the Hon’ble Supreme Court by deleting not only the increase in the cost of power purchased by the Board from TVNL from H3 but also by deleting it from H1 and H2. On the other hand Mr. Ajit Kumar has justified the above deletion by submitting that the deletion from the H1, H2 and H3 component is in the interest of the consumer and as such no any substantial injustice has been caused to it. Thus, the first issue for consideration of this Court is:- (i) Whether the Board, by deleting H1, H2 and H3 component in the impugned circular, has violated the direction of the Hon’ble Patna High Court given in case of Pulak Enterprises (Supra.) as well as the Hon’ble Supreme Court and if so, then whether any substantial injustice has been caused to the appellants. 31. Further the learned Counsel for the appellant submitted that in-spite of the direction of the Hon’ble Patna High Court and also of the Hon’ble Supreme Court the respondents have not made adjustment of Rs. 100 crores while calculating the rate of fuel surcharge for the year 1998-99. On the other hand the respondents submitted that as a contempt case filed alleging non-compliance of the order of adjustment was dismissed by the Hon’ble Supreme court and also the office order no. 3570 has not been challenged by the appellant hence it has not right to challenge the adjustment at this stage. Thus the second issue for consideration of this court is:- (ii) Whether at this stage the appellant is entitled for adjustment of Rs. 100 crores? 32. So far the issue of deemed supply of power by the Board of power supplied by DVC to TISCO, Mr. Venugopal submitted that as per the direction of the Hon’ble Patna High Court and Hon’ble Supreme Court, while computing D3, the Board could not take two rates of supply i.e. one for power directly supplied by DVC to the Board and another rate for deemed supply by the Board of power supplied by DVC to TISCO. Venugopal submitted that as per the direction of the Hon’ble Patna High Court and Hon’ble Supreme Court, while computing D3, the Board could not take two rates of supply i.e. one for power directly supplied by DVC to the Board and another rate for deemed supply by the Board of power supplied by DVC to TISCO. On the other hand the respondents submitted that it has complied with the direction of both the courts in true sense and while recalculating the fuel surcharge the Board treated DVC as a single source and has applied normal rate of purchase of power from DVC while recalculating the fuel surcharge for the year 1996-97 and onwards. Thus the third issued for consideration of this court is:- (iii) Whether the Board, in the impugned circular, has taken into consideration the two rates of supply while calculating D3 and as such has violated the direction of the Hon’ble Patna High Court and also the Hon’ble Supreme Court? 33. The appellants submitted that the learned Single Judge failed to appreciate that the appellant had not challenged the circular of 14.09.1999 rather it had contended that the computation of fuel surcharge must include in the denominator the unconsumed units on which fuel surcharge is actually being levied and collected in order to ensure that the computation is strictly in accordance with the framework of the formula. On the other hand the respondents submitted that Hon’ble Patna High Court in a very specific term held that the issue of non-inclusion of the unconsumed unit is mere academic value and as such challenge to the rate of fuel surcharge on the ground of non-inclusion of the unconsumed unit is barred by principle of constructive res judicata. Thus the third issue for determination of this court is:- (iv) Whether challenge to the non-inclusion of the unconsumed unit is barred by the principal of constructive res judicata or the appellant is entitled to challenge the same by contending that computation of fuel surcharge must include in the denominator? 34. Thus the third issue for determination of this court is:- (iv) Whether challenge to the non-inclusion of the unconsumed unit is barred by the principal of constructive res judicata or the appellant is entitled to challenge the same by contending that computation of fuel surcharge must include in the denominator? 34. With respect to the application of circular dated 17.3.2001 in the State of Jharkhand, the appellant submitted that the said circular would apply to collect fuel surcharge from consumers in Jharkhand based on the computation of fuel surcharge for undivided Bihar only so long as the Jharkhand Board was not in existence and as soon as the Jharkhand Board Came into existence on 1.4.2001, it is impermissible to collect fuel surcharge from consumers in Jharkhand based on elements relevant only to the Bihar Board’s purchase of power. On the other hand the respondents submitted that the impugned circular have been issued prior to the bifurcation i.e. in the year 1999-2000 and even circular no. 78 dated 17.3.2001 was issued by the BSEB for the period 2000-2001 before the creation of JSEB thus the same is applicable in the area of State of Jharkhand as per the provisions contained in the Bihar Re-organization Act. Thus the last question for determination of this court is:- (v) Whether the circular of the Bihar Board dated 17.3.2001 will continue to apply to the fuel surcharge paying consumers in the State of Jharkhand even after the existence of Jharkhand Board on 1.4.2001? Regarding - contention of Interim Stay. 35. Both the appellants have prayed for grant of interim stay till the decision of this case. Appellant of LPA No. 305 of 2015 has filed a separate application being I.A. No. 3340 of 2015 whereas the appellant of LPA No. 324 of 2015 is praying for stay in the main petition itself. 36. Now coming to the grounds on which the appellants are praying for stay:- (i) Since the Board has not implemented the decision of the Patna High Court and the Hon’ble Supreme Court and the same is also followed by the learned Single Judge with respect to the TVNL issue, the appellant has strong case on merit. (ii) Balance of convenience is also in favour of the appellant and the appellant will also suffer irreparable losses and injuries if the stay will not be granted. (ii) Balance of convenience is also in favour of the appellant and the appellant will also suffer irreparable losses and injuries if the stay will not be granted. (iii) During the pendency of the writ petition, the appellant had enjoyed a stay on coercive action by the Board to collect the amounts billed by it for the year 1996-97 until 31.12.2003 because as per the direction of the writ court, it had paid Rs. 77.66 crores about 75% of the total amount billed by the Board. (iv) After the impugned order, the Board has raised revised bills dated 02.07.2015 on the appellant for a total sum of Rs. 107.73 crores out of which the principal amount is Rs. 23.79 crores and the delayed payment surcharge (DPS) is Rs. 83.94 crores levied on the balance principal amount of Rs. 23.79 crores at the rate of 2% per month from the year 1996 onwards. (v) After filing of the present appeal, the appellant received the Bills for some of its units and so far the Jamshedpur unit no Bill as yet has been served to the appellant rather only notices have been issued u/s. 56 of the Indian Electricity Act, 2003. (vi) Apart from the fuel surcharge the Board also charged Delayed Payment Surcharge which is illegal because petitioner has paid the demand of fuel surcharge as per the directive of this Hon’ble Court from time to time. (vii) In case of recalculation, delayed payment surcharge should not be levied in terms of the judgment passed in M/s. Gaya Roller Flour Mills Pvt. Ltd. vs. BSEB and Others, (1995) 2 PLJR 715 . (viii) Amount already paid and bank guarantee already furnished may also be taken into consideration for grant of interim relief. (ix) By referring to the Supplementary affidavit filed on 30.6.2015, it is further submitted that the appellant is passing through acute financial crisis and as a matter of fact the appellant has suffered loss to the tune of Rs. 344.71 crores in the financial year 2014-15 and as such if the appellant will be forced to pay the amount of approximately Rs.107 crores claimed by the respondent-Board as a principal payment plus delayed payment surcharge @ 2% per month, the appellant will suffer irreparable losses and injuries. 37. 344.71 crores in the financial year 2014-15 and as such if the appellant will be forced to pay the amount of approximately Rs.107 crores claimed by the respondent-Board as a principal payment plus delayed payment surcharge @ 2% per month, the appellant will suffer irreparable losses and injuries. 37. On the other hand the learned Senior Counsel for the respondents opposed the prayer for stay and prayed for dismissal of the appeal in limine on the following grounds:- (i) Bills raised by the respondent are fully in compliance of the direction of the Division Bench of the Patna High Court and also the Hon’ble Supreme Court and as such there is no merit in the case of the appellants. (ii) The appellants do not deserve any interim relief because they did not pay a substantial amount of the Respondents and retained it with them for a very long of about more than a decade in view of the law laid down by the Hon’ble Supreme Court in Assistant Collector of Central Exercise vs. Dunlop India Limited, (1985) 1 SCC 260 and Benara Valves Ltd. vs. Commissioner of Central Excise, (2006) 13 SCC 347. (iii) If stay will be granted in favour of the appellants, then the Board as well as the public at large will suffer irreparable injuries and losses. (iv) The charging of DPS for the entire period is also justified and legal in view of the law laid down by the Hon’ble Supreme Court in its judgments Kerala State Electricity Board vs. MRF Limited, (1996) 1 SCC 597 and Kanoria Chemicals and Industries Ltd. vs. U.P. State Electricity Board and Others, (1997) 5 SCC 772 . 38. While considering the question regarding grant of any stay against the impugned demand notices, it is necessary to consider the proposition of law as settled by the Hon’ble Supreme Court while dealing with grant of stay pertaining to revenue/fiscal matter of the State/Union. 39. In the case of Union Territory of Pondicherry vs. P.V. Suresh, (1994) 2 SCC 70 , the Hon’ble Apex court while dealing with interim injunction in para 15 held as follows:- 15. Before parting with the case, we feel constrained to reiterate our unhappiness about the interim injunction order made in the Mahe writ petitions. Passing of interim orders is not and cannot be a matter of course nor a matter of charity. Before parting with the case, we feel constrained to reiterate our unhappiness about the interim injunction order made in the Mahe writ petitions. Passing of interim orders is not and cannot be a matter of course nor a matter of charity. In the matters touching public revenue the courts ought to be more cautious. For better or worse, the courts have come to acquire a veto over the public exchequer. This power should be exercised with good amount of self-restraint and with a sense of responsibility. The power is coupled with accountability - accountability to the Constitution, to the laws of the land and above all to ourselves. The court must apply its mind to the facts of the case and must also envisage the implications and consequences of the order it proposes to make. This is so even at the ad interim stage when the respondent is not represented. We are sorry to say that none of these considerations appear to have been present in the mind of the learned Judge while passing the orders of injunction relating to Mahe shops. We are not happy at making these remarks but we felt compelled to say so in the circumstances. We hope and trust that no occasion would arise ever again for reiterating these remarks. 40. In the case of Benara Valves Ltd. vs. CCE, (2006) 13 SCC 347 the Hon’ble Supreme Court in 8 held as follows:- 8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no legs to stand on, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a licence to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a licence to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen’s faith in the impartiality of public administration, interim relief can be given. 41. From the above proposition now it has become very clear that stay cannot be granted unless the party praying for stay has a very strong case vis-a-vis the case of the other party. It also emerges from the above proposition that before granting stay the court must apply its mind to the facts of the case and must also envisage the implications and consequences of the order it proposes to make. 42. With regard to the question of charging of the DPS on the dues amount when the appellant was enjoying the stay granted by the court, the cased cited by the respondent appears to be relevant. 43. In the case of Kanoria Chemicals and Industries Ltd. vs. U.P. SEB, (1997) 5 SCC 772 the Hon’ble Supreme court in para 11 held as follows:- 11. The learned counsel for the appellants in the appeals before us rely upon the portions underlined in the above passage as a decision supporting their contention that where the operation of government order is stayed, no surcharge can be demanded upon the amount withheld. We find it difficult to agree. In our respectful opinion, the underlined portions do not constitute the decision of the court. They merely refer to the fact that the Board itself did not make a demand for surcharge amount in respect of the period covered by the stay under its own understanding of the effect of the stay order granted by the High Court and that it was justified in its opinion. The demand was, the Court pointed out, in respect of the period covered by the order of injunction granted by this Court. The demand was, the Court pointed out, in respect of the period covered by the order of injunction granted by this Court. This Court held expressly that the grant of an injunction does not relieve the consumers of their obligation to pay the charges at the enhanced rates and, therefore, the demand for surcharge/interest for such period is not illegal. The portions underlined cannot be understood as laying down the proposition that in respect of the period covered by the stay, no demand can be made. No such proposition can be deduced from the said passage for the reason that the liability for the said (sic period) was not at all in issue in the said decision. Unless put in issue and pronounced upon, it cannot be said that there was a decision on the said issue. There was no lis between the parties with respect to the period covered by the stay order of the High Court. If so, it cannot be said that any decision was rendered by this Court on the said issue or aspect, as it may be called. We, therefore, agree with the High Court that Adoni Ginning cannot be read as laying down the proposition that the grant of stay of a notification revising the electricity charges has the effect of relieving the consumers/petitioners of their obligation to pay late payment surcharge/interest on the amount withheld by them even when their writ petitions are dismissed ultimately. Holding otherwise would mean that even though the Electricity Board, who was the respondent in the writ petitions succeeded therein, is yet deprived of the late payment surcharge which is due to it under the tariff rules/regulations. It would be a case where the Board suffers prejudice on account of the orders of the court and for no fault of its. It succeeds in the writ petition and yet loses. The consumer files the writ petition, obtains stay of operation of the notification revising the rates and fails in his attack upon the validity of the notification and yet he is relieved of the obligation to pay the late payment surcharge for the period of stay, which he is liable to pay according to the statutory terms and conditions of supply which terms and conditions indeed form part of the contract of supply entered into by him with the Board. We do not think that any such unfair and inequitable proposition can be sustained in law. No such proposition flows from Adoni Ginning. It is a matter of common knowledge that several petitioners (their counsel) word the stay petition differently. One petitioner may ask for injunction, another may ask for stay of demand notice, the third one may ask for stay of collection of the amount demanded and the fourth one may ask for the stay of the very notification. Such distinctions are bound to occur where a large number of writ petitions are filed challenging the same notification. The interim orders made by the Court may also vary in their phraseology in such a situation. Take this very case: While the consumers had asked for stay of operation of the government order revising the rates, those very consumers asked for an injunction when they came to the Supreme Court. Furthermore, as pointed out rightly by the High Court, the orders of stay granted by the High Court in writ petitions questioning the validity of the Notification dated 21.4.1990 were not uniform. In the case of writ petition filed by the Eastern U.P. Chamber of Commerce and Industry, Allahabad, the operation of the notification was stayed while in the case of the writ petition filed by the Employers’ Association of Northern India, it was directed that effect shall not be given to the Notification dated 21st April, 1990 as against the petitioner, while clarifying at the same time that in the event of failure of the writ petition, the petitioner shall deposit with the relevant authority within a period of one month from the date of dismissal of the writ petition the difference between the amount of electricity dues to be paid hereinafter by the petitioners under our orders and the sum which may be calculated on the basis of the impugned notification. The words sum which may be calculated on the basis of the impugned notification in the later order clearly mean and include the late payment surcharge as well. The acceptance of the appellants argument would thus bring about discrimination between a petitioner and a petitioner just because of the variation of the language employed by the court while granting the interim order though in substance and in all relevant aspects, they are similarly situated. The acceptance of the appellants argument would thus bring about discrimination between a petitioner and a petitioner just because of the variation of the language employed by the court while granting the interim order though in substance and in all relevant aspects, they are similarly situated. It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing a party (Board in this case) for no fault of its and would also mean rewarding a writ petitioner in spite of his failure. We do not think that any such unjust consequence can be countenanced by the courts. As a matter of fact, the contention of the consumers herein, extended logically should mean that even the enhanced rates are also not payable for the period covered by the order of stay because the operation of the very notification revising/enhancing the tariff rates was stayed. Mercifully, no such argument was urged by the appellants. It is un understandable how the enhanced rates can be said to be payable but not the late payment surcharge thereon, when both the enhancement and the late payment surcharge are provided by the same notification the operation of which was stayed. 44. Thus a person cannot escape from liability for payment of delayed payment surcharge merely by saying that they had been granted stay in the matter. The argument of the appellant also does not suffer to be logical as the appellants are profit making agencies and they gainfully utilized the amount saved by them and on the other hand the Board had suffered from non-payment of the same. 45. The argument of the appellant also does not suffer to be logical as the appellants are profit making agencies and they gainfully utilized the amount saved by them and on the other hand the Board had suffered from non-payment of the same. 45. So far the submission of the appellant that it is suffering from financial crunch and as such any order refusing to grant stay may cause irreparable losses and injuries to it, this court is referring para 58 of the decision of Hon’ble Supreme Court in Bihar State Electricity Board vs. M/s. Pulak Enterprises and Others (supra) wherein the Hon’ble Apex court cited an undisputed fact that the consumer at large have not been paying the dues on time and many of them have been making only part payment on the strength of the interim order of a court. It is further observed that due to such act of the consumers the Board has to pay DPS to the external agencies resulting in higher fuel surcharge and causing additional burden to the consumers at large. From the above observations it is become clear that on account of non-payment of dues, the Board as well as the consumer at large is suffering a lot and as such if the stay will be granted than the respondent will suffer more injuries than that of the appellant. 46. Since the present two appeals on hand, require detailed hearing on certain vital issues, the same deserve to be admitted for hearing. 47. Ordered accordingly. 48. Now adverting to the prayer for the interim relief. 49. Let us first of all take the case of the appellant in LPA No. 324 of 2015. Mr. Mittal, learned senior Advocate has submitted that the entire principal amount has already been paid to JUVNL and till date, nothing is due towards the principal amount. He states that even after dismissal of the writ petition, whatever was due towards the principal amount, even that has also been cleared. Mr. Mittal states that during the pendency of the main Writ, pending before the Writ Court, by way of interim relief, the appellant was directed to furnish a Bank guarantee to the tune of Rs. 3.71 crores, which is still alive. Mr. Mittal states that during the pendency of the main Writ, pending before the Writ Court, by way of interim relief, the appellant was directed to furnish a Bank guarantee to the tune of Rs. 3.71 crores, which is still alive. He prays that since the appellant has already paid the entire principal amount and furnished Bank guarantee also towards the Delayed Payment Surcharge (DPS), the interim relief already granted by the Writ Court may be extended till the disposal of the main appeal. 50. So far as LPA No. 305 of 2015 is concerned, learned counsel for the appellant submitted that the appellant M/s. Usha Martin Limited is passing through an acute financial crisis and had suffered losses to the tune of Rs. 344.71 crores in the financial year 2014-15 and if it is forced to shut down its operation on account of non-payment of electricity bills including Delayed Payment Surcharge (DPS), the livelihood of nearly 15,000 employees would be jeopardized. It is further submitted that the appellant-Company has already paid about 75 per cent of the total bill amount, which is in excess of the total principal amount that the appellant would be liable to pay after modification of the fuel surcharge in terms of the directions of the Patna High Court, confirmed by the Hon'ble Supreme Court. In that situation, the JUVNL, otherwise, would not be entitled to get any amount from the appellant, as payment towards Delayed Payment Surcharge (DPS). 51. On the other hand, while opposing the prayer of both the appellants for the interim relief, Mr. Ajit Kumar, learned senior Advocate appearing for the JUVNL, submitted that the JUVNL is also suffering a lot on account of non-payment of huge outstanding dues from both the appellants since last more than a decade, whereas, most of the consumers have cleared their outstanding dues towards Delayed Payment Surcharge (DPS) after the decision of the Patna High Court, which was confirmed by the Hon'ble Supreme Court. He submitted that, if any interim relief, as prayed for, flows towards the appellants in this case, it would also have its effect upon other similar matters pending in this Court. 52. He submitted that, if any interim relief, as prayed for, flows towards the appellants in this case, it would also have its effect upon other similar matters pending in this Court. 52. Looking to the financial condition of the appellant and also the factual scenario of the case, as stated hereinabove and for balancing convenience of both the parties, the applications for interim relief vis-a-vis both the appellants are disposed of in the following manner :- LPA No. 324 of 2015 53. So far as the amount due towards Delayed Payment Surcharge (DPS) is concerned, no doubt, the appellant had furnished Bank guarantee to the tune of Rs. 3.71 crores in terms of the direction of the Writ Court. However, in order to keep equitable balance, the appellant shall have to deposit 50 per cent of the Delayed Payment Surcharge (DPS) amount within three equal installments in the following manner:- First installment shall be paid on or before 31st August, 2015, second installment shall be paid on or before 30th September, 2015 and third installment shall be paid on or before 31st October, 2015. For rest of the balance amount towards the Delayed Payment Surcharge (DPS), the appellant shall have to furnish Bank guarantee, which will remain alive till the final disposal of the appeal. LPA No. 305 of 2015 54. Principal amount as indicated in all the revised bills shall be paid on or before 31st August, 2015. 50 per cent of the Delayed Payment Surcharge (DPS) shall be paid in seven equal monthly installments up to 31st March, 2016. We hereby make it clear that each installment shall be paid on or before the last day of the month. 55. So far as remaining 50 per cent of the amount towards Delayed Payment Surcharge (DPS) is concerned, the appellant shall furnish Bank guarantee, which will continue up to final disposal of the appeal. Let Bank guarantee in both the cases be furnished by the appellants on or before 31st August, 2015. Copy thereof shall be placed on record. 56. Respondents shall not take any coercive steps against the appellants, if the appellants make payment of the amount as per the aforesaid directives. However, in the event of any default in making payment of any of the installments, as directed hereinabove, respondent-JUVNL shall be at liberty to take all coercive steps. Copy thereof shall be placed on record. 56. Respondents shall not take any coercive steps against the appellants, if the appellants make payment of the amount as per the aforesaid directives. However, in the event of any default in making payment of any of the installments, as directed hereinabove, respondent-JUVNL shall be at liberty to take all coercive steps. The aforesaid payment shall, however, be subject to the final outcome of the appeals on hand. I.A. No. 4101 of 2015 57. The instant application has been filed by the appellant-M/s. Usha Martin Ltd. in LPA No. 305 of 2015, praying for restoration of electrical connection in respect of Consumer No. HJAP-112, which stands disconnected pursuant to the notice issued under Section 56 of the Electricity Act, 2013. 58. Mr. Mittal, learned senior counsel submitted that in all fairness JUVNL should not have disconnected the electric service line of appellant with regard to the aforesaid connection as the main matter was still pending at admission stage. He submits that in terms of the notices issued to the appellant, the total amount due is Rs. 1,40,24,407/- out of which the principal amount is Rs. 35,30,110/- and that the Delayed Payment Surcharge (DPS) is Rs. 1,04,94,297/-. He submitted that the interim relief already granted to both the appellants by this Court may also be extended while disposing of the instant application as the Court has already prescribed a stipulated time i.e. 31st August, 2015 for depositing the principal amount. Learned counsel contended that at present on account of financial constraints, the applicant-appellant is not in a position to deposit any amount and it will have to make all efforts to arrange money towards the principal amount to be deposited by it within the stipulated period, as indicated hereinabove. 59. Although prayer made by Mr. Mittal learned senior counsel is opposed by Mr. Mukesh Kumar, yet considering the entirety of the facts and circumstances of the present case especially the interim relief already granted to both the appellants as indicated hereinabove, we hereby direct respondent-JUVNL to restore the electrical connection in respect of the consumer connection no. HJAP-112 forthwith. 60. It is however, made clear that if the appellant fails to make the payment of outstanding principal amount within the aforesaid stipulated period, JUVNL shall be at liberty to resort to any coercive step. 61. I.A. No. 4101 of 2015 stands disposed of accordingly. HJAP-112 forthwith. 60. It is however, made clear that if the appellant fails to make the payment of outstanding principal amount within the aforesaid stipulated period, JUVNL shall be at liberty to resort to any coercive step. 61. I.A. No. 4101 of 2015 stands disposed of accordingly. LPA No. 324 of 2015 with LPA No. 305 of 2015 62. The parties shall be at liberty to move before this Court for early hearing of the appeal after payment of the aforesaid amounts.