JUDGMENT : Rongon Mukhopadhyay, J. 1. Heard Mr. M.S. Mittal, learned senior counsel appearing for the petitioner and Mr. Ajit Kumar, learned senior counsel appearing for the respondents. 2. Since common questions of law and fact are involved in both these writ applications, the same are being disposed of by this common order. 3. In these writ applications, the petitioner has prayed for quashing of the current monthly bills from January 2004 to August 2004 which have been raised on the basis of high tension tariff of 1993 instead of on the basis of domestic service - high tension (DS-HT) of the year 2004 for the said period. Further prayer has been made by the writ petitioner for a direction upon the respondents to raise fresh bills from January 2004 to August 2004 on the basis of 2004 Tariff under the category DS-HT and to adjust the excess amount paid by the petitioner from January to April 2004 and thereafter refund the excess amount realized from the petitioner. The petitioner has also sought for quashing of the notice dated 09.08.2004 by which the petitioner has been asked to pay the current energy bills after April 2004 besides other arrears and also for quashing the demand notice dated 08.09.2004 as contained in letter no. 1671 by which the respondents have raised current monthly bills besides the arrears for the current monthly bills from May 2004 to August 2004 on the basis of HT tariff without revising the entire bills from January 2004 to August 2004 on the basis of DS-HT tariff of 2004. 4. The factual aspects of the case as is revealed from the averments made in this writ application is that the petitioner - company has its own 6 number of captive collieries and 2 washeries at Dhanbad. For the purpose of residence of its employees, the petitioner has set-up residential colonies at Sijua and Bhelatand. In W.P.C. No. 5971 of 2004, the petitioner is aggrieved by the bills raised with respect to the residential colony at Sijua whereas in W.P.C. No. 5985 of 2004, the petitioner is aggrieved with the bills raised for the residential colony at Bhelatand. For the purpose of domestic electrical connection to the quarters situated at Sijua and Bhelatand, the petitioner had taken one common electrical connection from the erstwhile Bihar State Electricity Board. For the purpose of domestic electrical connection to the quarters situated at Sijua and Bhelatand, the petitioner had taken one common electrical connection from the erstwhile Bihar State Electricity Board. A single point connection bearing Consumer No. SJG 197 was taken by the petitioner and electricity was charged from the petitioner on the basis of domestic tariff. However, subsequently, the Board had entered into another agreement on 15.12.1994 with the petitioner for HT connection for supply of 11 KV volts having contract demand of 200 KVA and the said connection was for supply of power to the residential colonies of its employees at Sijua. The consumer number of the petitioner with respect to Sijua is KND-15. So far as the supply of power to the residential colonies at Bhelatand is concerned, the agreement was for supply of 11 KV volts having contract demand of 354 KVA and the consumer number of the petitioner is KND-16. It has been stated by the petitioner that the current energy bills as and when raised by the respondents - Board were duly paid and till the year 1999, there were no arrears to be paid. Certain disputes arose on account of faulty billing in respect of fuel surcharge and in terms of the general interim orders passed by this Court from time to time, the petitioner started paying on the basis of the rate as prescribed by the Board. On 20.12.2003, the Jharkhand State Electricity Regulatory Commissioner had issued a tariff order for the Jharkhand State Electricity Board and the said tariff order was made effective from 01.01.2004. The petitioner claims that the Jharkhand State Electricity Board continued to raise bills from January 2004 till April 2004 on the basis of the old tariff of 1993 and that too treating the consumer as an HT category of consumer. The petitioner in order to avoid disconnection paid the entire bills from January 2004 to April 2004 as raised by the Board. In view of the new tariff in 2004 coming into existence, a communication was made vide letter dated 22.07.2004 to the General Manager cum Chief Engineer, Dhanbad Area Electricity Board, Dhanbad to change the category of the consumer from HT to DS (HT) as per the tariff schedule from 01.01.2004 with a request to revise the bills accordingly. In view of the new tariff in 2004 coming into existence, a communication was made vide letter dated 22.07.2004 to the General Manager cum Chief Engineer, Dhanbad Area Electricity Board, Dhanbad to change the category of the consumer from HT to DS (HT) as per the tariff schedule from 01.01.2004 with a request to revise the bills accordingly. However, the respondents have once again for the period from May 2004 to August 2004 raised bills on the basis of 2004 Tariff, but under the category of HT service. The petitioner protested against the raising of the bills from January 2004 to April 2004 on the basis of 1993 Tariff and it was claimed by the petitioner that if the bills were revised, the petitioner would have been entitled to a huge amount of refund. The Board instead gave a notice vide letter dated 09.08.2004 issued under Section 24 of the Electricity (Supply) Act, 1946 asking the petitioner to make payment of energy bills for the month of May 2004 and June 2004 for a sum of Rs. 5,56,299/- and 5,66,109/- respectively with a further demand of Rs. 38,54,508/- towards arrears which also included the current bills for the month of May and June 2004. The petitioner through its representative made a representation once again to the General Manager cum Chief Engineer vide letter dated 21.08.2004 and pointed out that the current bills are being raised on the basis of H.T. tariff and that too on 1993 Tariff whereas the connection was taken for domestic lighting in the colonies situated at Sijua and Bhelatand. It has further been claimed by the petitioner that the Jharkhand State Regulatory Commissioner by issuing the new tariff order of 2004 being effective from 01.01.2004 had introduced a new category of consumers for domestic service being DS-HT for supply of electricity at 11 KV volts to housing colonies and housing complexes/multistoried building purely for residential use for load more than 75 KVA. The petitioner has also framed a chart and by highlighting it has indicated that if the bills were raised on the basis of 2004 Tariff under DS-HT category, the petitioner would be entitled to a refund of a huge amount. The petitioner has also framed a chart and by highlighting it has indicated that if the bills were raised on the basis of 2004 Tariff under DS-HT category, the petitioner would be entitled to a refund of a huge amount. It is the further case of the petitioner that the respondent - Board insisted on making of payment of the outstanding dues and only then the revision of the bills under the DS-HT category from January 2004 onwards will be considered. The petitioner had intimated the Board that it was not desirous in resuming electricity from the Board and it had therefore requested that no further bills be raised. Equipped with the background facts which led to preferring separate writ applications, the arguments advanced by the learned senior counsel for the respective parties are now being taken note of. 5. It has been stated by Mr. M.S. Mittal, learned senior counsel for the petitioner while referring to the 2004 Tariff Schedule that a special category had been carved out in the 2004 Tariff which was with respect to domestic service (HT) for power supply to housing colonies. Learned senior counsel submits that the tariff for DS -HT consumers was Rs. 30 per month per KVA. He has also referred to the tariff of HTS (High Tension Service) which was Rs. 140 per KVA per month and by indicating so has pointed out that the petitioner has been saddled with a huge liability on account of the wrong billing on the part of the Board. Learned senior counsel has also referred to one of the many disputed bills which have been brought on record to highlight the fact that the bills were being raised on the basis of the petitioner being a high tension consumer which is a misnomer considering the fact that with the advent of 2004 Tariff effective from 01.01.2004, the bills should have been raised on the basis of the special category carved out i.e., DS-HT which was specially approved for providing electricity to multistoried building and housing complexes. It has been submitted that under the threat of disconnection, the petitioner had to pay the bills and in fact immediately on finding the discrepancy, representations were submitted on behalf of the petitioners bringing to the notice of the Board the wrong billing which has been done. It has been submitted that under the threat of disconnection, the petitioner had to pay the bills and in fact immediately on finding the discrepancy, representations were submitted on behalf of the petitioners bringing to the notice of the Board the wrong billing which has been done. It has further been submitted that even the disconnection notice was issued under the 1993 Tariff which was once again protested by the petitioner by filing representations. Learned senior counsel has referred to the chart which shows the comparison of the bills which was raised on the basis of 1993 Tariff with that of the DS - HT Tariff and by submitting so, it has been argued that a huge amount is to be refunded to the petitioner on account of the bills being raised on the basis of a tariff which was not even in existence. Mr. Mittal further adds that the counter affidavit which has been filed by the Board is silent on various issues raised by the petitioner which is a sign of tacit acceptance of the contentions of the petitioner. He further submits that the only version which is being repeatedly averred in the counter affidavit is that the prayer of the petitioner for revising the bills for the period January 2004 to August 2004 will be considered after payment of outstanding dues. Learned senior counsel submits that the question of fuel surcharge is not an issue in the present writ applications. It has been vehemently argued that in the counter affidavit, a flimsy ground has been taken by the respondent - Board that the tariff notification was communicated by the Jharkhand State Electricity Board in the month of May 2004 and thereafter the bills were revised and issued on the basis of the said tariff, although the 2004 Tariff has come into being w.e.f. 01.01.2004. Learned senior counsel has also referred to the case of "Dumraon Textiles Ltd. Vs. The Bihar State Electricity Board & others" reported in 1993 2 PLJR 527 and in the case of "Castings (India) Ltd. Vs. Bihar State Electricity Board and others" reported in 1993 2 PLJR 34 while contending that whenever there is a conflict between the agreement and the tariff, the latter shall prevail. Mr. Mittal has also referred to the Electricity Supply Code Regulation of 2005 more specifically to Clause 11.10.3. Bihar State Electricity Board and others" reported in 1993 2 PLJR 34 while contending that whenever there is a conflict between the agreement and the tariff, the latter shall prevail. Mr. Mittal has also referred to the Electricity Supply Code Regulation of 2005 more specifically to Clause 11.10.3. While arguing that refund should have been made by the Board along with the interest as applicable in delayed payment surcharge, he has expressed surprise on the documents which have brought on record in the counter affidavit by stating that the revised bills does not have any concern with the fuel surcharge. 6. Mr. Ajit Kumar, learned senior counsel appearing for the respondents has submitted while referring to the 1993 Tariff that there were only 3 categories in the said tariff being DS-I, DS-II and DS-III. It has been submitted that the petitioner had not taken any connection under the domestic category and in fact had taken a high tension connection for which an agreement was also executed. He has also submitted that in 2004 precisely w.e.f. 01.01.2004 a new Tariff came into being which carved out a new category to the consumers i.e. DS-HT category. It has been vehemently argued by Mr. Ajit Kumar, learned senior counsel that there cannot be an automatic conversion of the new Tariff and the HT agreement which was entered into between the petitioner and the Board which was in consonance with the 1993 Tariff and which cannot be converted automatically to DS-HT category because the applicability and the conditions in both the cases are different. While referring to the provisions of the Electricity Supply Code, 2005, it has been stated that Clause 9.3 clearly reveals that the conversion is not automatic. Learned senior counsel while referring to Clause 7 of the Supply Code 2005 which is with respect to an agreement has further referred to Clause 7.3 (IV) which relates to purpose of usage of electricity and so far as the Clause 7.3 (V) (b) is concerned, the same deals with the prevailing tariff rate, but execution of an agreement is a condition precedent. It has been stated that the petitioner will fall under Clause 7.3 (IV) with respect to usage of electricity. It has been submitted that in terms of Chapter 7 of the Electricity Supply Code 2005 and the Electricity Supply Act, bills raised are dependent on the execution of an agreement. It has been stated that the petitioner will fall under Clause 7.3 (IV) with respect to usage of electricity. It has been submitted that in terms of Chapter 7 of the Electricity Supply Code 2005 and the Electricity Supply Act, bills raised are dependent on the execution of an agreement. As regards erroneous bills are concerned, the same can be corrected in terms of Clause 11.10 of the Electricity Supply Code. Adverting back to the 1993 Tariff, Mr. Ajit Kumar, submits that there was no DS-HT category in the said Tariff and under the old tariff of 1993, the petitioner could have taken DS-III connection which is more than 4 KVA and for which condition was with respect to the load. He further submits that the petitioner had entered into an agreement with the Board under the HT category and not DS category. He has also referred in such context to Clause 2(8) of 2004 Tariff. Learned senior counsel has drawn the attention of the Court to Clause 5.17.4 of the 2004 Tariff and has reiterated that it is a new category and if any part of the colony is using electricity for purposes other than residential purpose, it will not be treated under the DS-HT category. The same is a matter of verification and there cannot be automatic conversion from HT category as per the 1993 Tariff to DS-HT category as per the 2004 Tariff. He has also referred to the agreement entered into between the petitioner and the Board and has submitted that in spite of domestic lighting, the petitioner had chosen HT category. Mr. Ajit Kumar has also referred to various representations submitted by the petitioner for revising the bills and submits that it does not speak of any mutual agreement and also execution of an agreement. He has also referred to the counter affidavit and has stated that the revision in the bills can only be considered after payment of all the outstanding dues. 7. Mr. He has also referred to the counter affidavit and has stated that the revision in the bills can only be considered after payment of all the outstanding dues. 7. Mr. M.S. Mittal, learned senior counsel for the petitioner has responded by referring to paragraph 8 & 9 of the counter affidavit which deals with the earlier single point connection taken from Bihar State Electricity Board and the agreement which was for supply of power to the residential colonies of its employees at Sijua-Bhelatand and the said contention has not been disputed as in the counter affidavit it has been stated that the same are matters of record. He submits that there is no dispute that the connection which was taken was only for domestic purpose. Mr. Mittal further submits that the Board has to take a lenient stand and not blow hot and cold at the same time. He submitted that there is no allegation against the petitioner of utilizing the electricity for any other purpose neither any denial that the petitioner is not entitled under the DS-HT category. Referring to the contentions advanced by the learned senior counsel for the respondents regarding the provisions of the Electricity Supply Code, 2005 submission has been advanced that the same has come into effect from 28.10.2005 and therefore there is no question of its applicability so far as the claim of the petitioner is concerned. It has been stated that the Tariff order is conclusive and the bills are to be raised only on account of the 2004 Tariff during January to August 2004, so far as the petitioner is concerned. Mr. Mittal contradicts the averments made in paragraph 14 of the counter affidavit regarding a communication of the new Tariff notification to the Board in the month of May 2004 by submitting it as improbable. 8. On consideration of the arguments advanced by the learned senior counsel for the respective sides, it would be apt at the first instance to refer to the 1993 Tariff. In the said Tariff so far as the domestic service category is concerned, 3 categories were carved out which reads as follows: "2. Category of Service: (a) Domestic Service-I (DS-I):- For rural areas not covered by any Notified Area Committees and connected load not exceeding 2 KW. In the said Tariff so far as the domestic service category is concerned, 3 categories were carved out which reads as follows: "2. Category of Service: (a) Domestic Service-I (DS-I):- For rural areas not covered by any Notified Area Committees and connected load not exceeding 2 KW. (b) Domestic Service-II (DS-II):- For Urban areas covered by Notified Area Committee/Municipality/Municipal Corporation and connected load not exceeding 2 KW. (c) Domestic Service-III (DS-III):- For loads exceeding 2 KW." 9. The petitioner had entered into separate agreements with the Board being a high tension consumer and in the schedule to the agreement, it has been specifically noted at Clause 2 that the purpose for which the supply is being given is domestic lighting. At Clause 7 of the schedule, the tariff is to be charged as per the BSEB notification enforced from time to time. The domestic service category underwent a change after the Jharkhand State Electricity Regulatory Commission had issued a new tariff in the year 2004 applicable w.e.f. 01.01.2004. The category of domestic services as per the 2004 Tariff reads as follows: "2. Category of service a. Domestic Service: DS-I(a) For Kutir Jyoti connection only for connected load upto 100 watts for rural areas. b. Domestic Service: DS-I(b) For rural areas not covered by area indicated under DS-II and for connected load not exceeding 2 KW. c. Domestic Service: DS-II For urban areas covered by notified Area Committee/Municipality/Municipal Corporation/All District Town/All Sub Divisional Town/All Block Headquarters/Industrial Areas/contiguous sub-urban area, all market places urban or rural and for connected load not exceeding 4 KW. d. Domestic Service: (DS-HT) For power supply at 11 KV to housing colonies and housing complex/multi-storeyed buildings for purely residential use of load above 75 KW." 10. On comparison of the 1993 Tariff and 2004 Tariff so far as the domestic service is concerned, a special category was carved out in the 2004 Tariff being DS-HT and the object and reasons for carving out the said category was for power supply at 11 KV to housing colonies and housing complex/multistoried building for purely residential purpose for load above 75 KW. The bone of contention between the petitioner and the Board is the applicability of the said category in providing electricity to the colonies of the petitioner situated at Sijua and Bhelatand. The bone of contention between the petitioner and the Board is the applicability of the said category in providing electricity to the colonies of the petitioner situated at Sijua and Bhelatand. The Tariff for DS-HT category so far as the 2004 Tariff is concerned was for the fixed charge of 30 KVA per month. As regards the high tension service, the demand charge as per the 2004 Tariff was Rs. 140 per KVA per month. In view of the 1993 Tariff as well as the 2004 Tariff, it is to be seen as to whether the bills raised from January 2004 to May 2004 would have been on the basis of 2004 Tariff or the 1993 Tariff. The bills which have been raised by the respondent - Board for the aforesaid period indicate that the same was raised on the basis of the 1993 Tariff, although in fact the 2004 Tariff had by then already come into existence. The high tension agreement entered into between the petitioner and the Board as stated above was for the purposes of supply of electricity for domestic lighting and the subsequent Tariff of 2004 carved out a niche with respect to domestic lighting for multistoried building and housing complexes and with the advent of 2004 Tariff, the bills should have been raised on the basis of the said Tariff and not on the basis of a Tariff which was not even in existence. The special category which was carved out in the 2004 Tariff regarding DS-HT category embedded in itself the purpose of taking electricity from the Board by the petitioner as in the initial HT agreement, the petitioner has taken the electric connection on account of domestic lighting for the residential colonies of Sijua and Bhelatand. It has been vehemently argued by the learned senior counsel appearing on behalf of the Board that no fresh agreement has been entered into and the earlier agreement for high tension service could not have been automatically converted to DS-HT category as per the 2004 Tariff. The said submission advanced on behalf of the learned senior counsel for the respondent - Board is based on the Electricity Supply Code of 2005 which has no applicability since the issue at hand is prior to the coming into force of the Supply Code 2005. The said submission advanced on behalf of the learned senior counsel for the respondent - Board is based on the Electricity Supply Code of 2005 which has no applicability since the issue at hand is prior to the coming into force of the Supply Code 2005. At this juncture, it would be apt to refer to the case of "Dumraon Textiles Ltd. Vs. The Bihar State Electricity Board & others" reported in 1993 2 PLJR 527, wherein it was held as follows: 9. "The clause provided for average consumption of electrical energy not only on the basis of average reading of the previous three months but also provides that in taking such average due regards shall be given to the condition of working during the months under dispute and during the previous three months. However, it is now well known that in view of the fact that tariff framed under Sections 46 & 49 of the Electricity Supply Act has the force of statute. The terms and conditions of the supply of electrical energy are not only governed by the agreement entered into by and between the parties but the same is also governed by the provisions of tariff and if there occurs a conflict between the terms and conditions of agreement and tariff, the latter shall prevail. Reference in this connection may be made to M/s. "Castings (India) Ltd. Vs. Bihar State Electricity Board and others" reported in 1993 2 PLJR 34 ." 11. Similar was the view in the case of "Castings (India) Ltd. Vs. Bihar State Electricity Board and others" reported in 1993 2 PLJR 34 , wherein it was held that the terms and conditions for supply of electrical energy are not only governed by the agreement entered into by and between the parties, but the same is also governed by the provisions of Tariff and whenever there creates a conflict between the terms and conditions of the agreement and the Tariff, the latter shall prevail. The High Tension Agreement which was entered into between the petitioner and the respondent - Board for supply of electricity for domestic lighting in the residential colony of Sijua and Bhelatand was on the basis of 1993 Tariff and with the introduction of the 2004 Tariff, the earlier agreement became extinct and the petitioner started being governed by the 2004 Tariff. The respondent - Board has by raising bills from January 2004 onwards on the basis of 1993 Tariff seems to have utilized the said Tariff in a dormant fashion to be made applicable as and when designed by the Board. Hence applicability of the 1993 Tariff even after the advent of 2004 Tariff cannot be permitted to be supported by any reasoning whatsoever. 12. It is the stand of the Board in the counter affidavit that consideration shall be made to the representations of the petitioner for revising the bills only if the outstanding dues are paid. The said contention cannot be accepted solely in view of the fact as also in view of the findings recorded above that when the bills raised for the period in question are apparently on application of a wrong Tariff, the petitioner cannot be constrained to make payment of the outstanding bills and only thereafter such consideration is to be made. The Board on one hand states that there was no agreement which would lead to raising the bills on the basis of DS-HT category of service and on the other hand pleas for consideration in revising the bills if the outstanding dues are paid. It is beyond redemption from the factual aspects of the case that the purpose of entering into a High Tension Agreement was for supply of electricity for domestic lighting in the colonies of the petitioner situated at Sijua and Bhelatand and the 1993 Tariff did not have a category of domestic service which would include lighting in multistoried building and housing colonies which as has been stated above were introduced in the 2004 Tariff and therefore, the petitioner stood automatically entitled to be charged on the basis of DS-HT category under the 2004 Tariff from January 2004 onwards. 13. In view of the findings recorded above, since the action of the respondent - Board in raising monthly bills from January 2004 to August 2004 on the basis of High Tension Agreement pursuant to the 1993 Tariff has been held to be illegal, arbitrary and in a capricious exercise of power, the said bills which forms the subject matter of both the writ applications are hereby quashed and set aside. The respondent - Board is directed to revise the bills and raise the same for the period January 2004 to August 2004 on the basis of DS-HT category as per 2004 Tariff and the excess amount which has been paid to the Board shall be refunded to the petitioner forthwith along with interest, if the statute as well as the rules and regulations pertaining to the subject provides so. 14. These applications are disposed of.