JUDGMENT
S.K. Chattopadhyaya, J.
1. Heard Mr. Mahesh Tiwary, learned Counsel for the petitioner and Mr. Rajendra Prasad, learned Counsel for the Board and with their consent, these applications have been heard together, as common questions of law involved therein, and are being disposed of by this common order.
2. Invoking the writ jurisdiction of the High Court the petitioner has impugned the orders of the General Manager-cum-Chief Engineer of the Electricity Board (Respondent No. 2), by reason of which the claim of the petitioner for remission in the charges of Annual Minimum Guarantee (in short AMG charges) is allowed in part.
3. M/s. Anil Engineering Works Put. Ltd. is the petitioner in both the cases and its claim for remission in the AMG charges and minimum demand charges for the years 1886-87, 1987-88, 1988-89 and April, 1989 to March, 1990 having been allowed in part, the petitioner has impugned the orders dated 25.4.1996 and 10.8.1996 passed by the General Manager-cum-Chief Engineer in the following facts and circumstances.
The petitioner claimed remission for the aforesaid period mainly on two grounds namely due to irregular supply of power by the Board the unit could not utilise the energy and as such, the consumer was entitled to proportionate remission for the period during which the Board was unable to supply power. The second ground was that due to strike in the factory with effect from 28.5.1990 to 13.11.1995 pertaining to financial years 1990-91, 1991-92, 1992-93, 1993-94 and 1994-95, the consumer was prevented from using electric energy and as such, was entitled for remission on that account.
4. It is not in dispute that after filing of the claim when the same was not disposed of within a reasonable time, the petitioner had to move this Court and on direction of the High Court, the Respondent No. 2 head the parties and perused the documents in support of their respective contentions and passed a reasoned order on 24.4.1996.
5. From the order impugned, it appears that the respondent No. 2 allowed remission in part on account of interruption of power supply for different financial years as indicated in this order. Regarding claim of remission on the ground of strike the respondent No. 2 was of the opinion that to come to a positive conclusion in this regard, facts presented by both the parties to be gone into in details and some relevant records are required to be perused and as such, consumer’s claim for the strike period was deferred for further hearing. However, by subsequent order dated 10.8.1996, pursuant to the order of the High Court to dispose of the said claim, respondent No. 2 after hearing the parties and going through the documents filed by both the parties, passed an order which has been impugned in CWJC No. 3675/96 (R).
6. Learned Counsel for the petitioner, with reference to Notification No. 810 dated 20th July, 1994, strongly contended that in view of Clause 3 of the Notification the petitioner is entitled for remission for any duration either of 30 minutes or above. According to him, this clause clearly indicates that even if there is interruption, say for one minute, the petitioner is entitled for remission for duration of 30 minutes and above. In this connexion, he has also drawn my attention to the agreement and urged that the petitioner, under the contract, is entitled to get remission proportionate to the period during which it was not able to consume electric energy due to non-supply of the same. He contends that without changing the terms of the agreement the Board was not entitled to refuse remission to the consumer. Lastly the earned Counsel contended that when the claim for the period of 1986 to 1990 was made, the same should have been disposed of in view of the Notification applicable during that period and the respondent No. 2 has completely erred in relying on a subsequent notification.
7. Mr. Rajendra Prasad, counsel for the Board, however, with reference to the stand taken in the counter affidavit, contended that the bills are raised by the Board as per the agreement entered into between the consumer and the Board and in view of the tariff the minimum guarantee charges are raised on the basis of 25% load factor. According to him, the respondent No. 2 has taken into consideration the tariff as well as guidelines issued by the Board from time to time and as such, it cannot be said that the impugned order is not sustainable in law. In spite of the order of this Court in earlier two writ petitions filed by the petitioner directed to pay a sum of Rs. 1,25,000/- and Rs. 1,00,000/- but without complying with the said orders, the petitioner is trying to get relief from this Court, in the instant writ application on flimsy ground. A very fair stand has been taken by the Board in its counter affidavit filed on 3.397 that though the impugned order has been passed by the respondent No. 2 according to law and as relief has been granted to the petitioner as per guidelines framed by the Board, the respondents have undertaken to rectify the same if any wrong calculation comes to the knowledge of the respondents.
8. On the aforesaid background the impugned order dated 24.4.1996 may be looked into. The petitioner claimed for proportionate remission on the ground of irregular supply of electrical energy and interruption too. The respondent No. 2 has considered the details of interruption submitted by the consumer against all the financial years as well as the statements of interruption submitted by the Board’s officers from the records maintained at the power station. The comparative chart has been given, which shows thus:
____________________________________________________________________________________
SI. No. Financial Year Duration of Duration of
outages as per outages as per
consumer's Board's
submission submission
______________________________________________________________________________________
HRS MTS HRS MTS
______________________________________________________________________________________
1. 1986087 1342 27 1314 09
2. 1987-88 1630 18 870 38
3. 1988-89 1993 58 857 06
4. 1989-90 2799 24 1223 07
From the above charge the authority concluded that duration of outages for the financial year 1986-87 submitted by the petitioner is more or less agreed with each other but there is appreciable differences in the figure submitted by the consumer and the Board’s officials for the rest of the financial years. However, the respondent No. 2 has completely relied on the records maintained at the power station which is feeding power to the consumer overlooking the documents filed by the petitioner According to him, a consumer could not authenticate the duration of interruptions submitted by him except that the interruptions were based on records. Secondly, their is difference between the two figures because Board’s duration of interruptions did not include those interruptions which are of less than 30 minutes each which was as per guidelines issued by the Board in its Notification dated 29.7.1994. This notification provides grant of proportionate relief for interruptions of duration of 30 minutes and above only. Whereas the petitioner submitted total figures of interruptions which include all those duration of outages which are for less than 30 minutes. Interpreting Clause 13 of the agreement and considering the stand taken by the parties, the respondent No. 2 allowed the claim for proportionate reduction in demand charges as also in the guaranteed energy charges due to Board’s enability to supply power as per the formula laid down by this Court form time to time. However, petitioner’s claim to allow relief for the both period of outage even if the duration is below 30 minutes was not allowed being against the guidelines issued by the Board. It appears that the respondent No. 2, in coming to the said conclusion, has relied on a decision of this Court in the case of Balajee Wire Products v. Bihar State Electricity Board and Ors. reported in 1995 (2) PLJR 810 but has failed to interpret the decision correctly. This Court found that remission in the demand charges should be calculated in the following manner:
Total KVA charged × Total hours of non-supply Total hours of power to be supplied
Moreover the authority further has failed to notice the observation made by the learned Single Judge in paragraph 14 of the judgment, which reads as follows:
I am unable to agree to this view, in my opinion, Clause 13 is intended to deal with the special situation when for reasons enumerated there, either the consumer is prevented from receiving or using the electrical energy or the Board is unable to supply it (it is another matter that what was supposed to be a special situation has come to be an every day affair). On the other hand, the concession made available to a consumer in the first year of supply under Clause 4(c) of the agreement is under normal conditions, presupposing a normal supply of energy in the first year of the contract as also in the succeeding years. However, in case the Board is prevented from supplying energy for reasons enumerated in Clause 13 of the agreement I see no reason to hold that the right for remission under that clause will not be available to a consumer in the first year of the supply. In my considered opinion, the provision for remission under Clause 13 would be available to consumers equally and in all respects regardless of the year of supply.
Second phase of argument of the respondent No. 2 is that the petitioner was not entitled to get remission of total interruptions in view of the notification dated 29.7.1994 which provides grant of proportionate relief for interruptions of duration 30 minutes and above only. In my view, this notification has come only after a Division Bench of this Court rendered its decision in the case of Suprabhat Steel Ltd. v. Bihar State Electricity Board reported in 1994 BBCJ 369. In paragraphs 67 and 68 their Lordships observed as follows:
67. The next question which is required to be considered is as to whether the Board can refuse to grant any remission for non-supply of the electrical energy upto 59 minutes.
The answer to such a question must be rendered in negative.
68. Clause 13 of the agreement cannot be interpreted in a restrictive manner as was argued by Mr. Chatterjee. Clause 13 as noticed hereinbefore, on the other hand, must be construed liberally.
The Board is bound to grant remission for any duration if a case therefor, is made out. We fail to understand as to why tripping upto 59 minutes is considered to be tripping for short duration or for that matter in connection of business of supply of electrical energy.
Tripping, load shedding or power cuts in whatever from, disruption in supply of electrical energy takes place on once or the other factors enumerated in Clause 13, a consumer as matter of right would be entitled to proportionate remission of annual minimum guarantee or maximum demand charges. In such a case it may be open to the Board to show that a tripping or power cuts etc. would not come within the purview of Clause 13 of the agreement but when, if any tripping, power cuts or load shedding etc. take the consumer would become entitled invoke the provisions of Clause 13, subject to the condition laid down therein. In a case, however, where consumer invokes Clause 13 of the agreement on the ground that he was prevented from taking supply of electrical energy, the burden of proof shall be on him.
9. It is true that the notification dated 29.7.1994 will be available to the Board for considering the period of remission for the year commences after 29.7.1994 and by no stretch of imagination it can be applied to the claim for remission for the years prior to issuance of this notification.
10. It is well settled 4hat the claim of a person has to be considered and decided in the light of circular/notification then invoked and not the circular/notification which later on come into existence. Reference, if necessary, may be made to the case of Anil Kumar Singh v. State of Bihar reported in 1993 (1) PLJR 414 and in the case of Kamal Ranjan v. State of Bihar reported in 1994 (2) PLJR 536.
In view of these propositions of law, in my view, the claim of the petitioner for the years 1986 to at least 1993-94 (of course before coming of the notification dated 29.7.1994) should be on the basis of observation made by this Court in the case of Suprabhat Steel Ltd. (supra). This view of the Court has been lost sight by the respondent No. 2. One more factor is required to be considered that though official records maintained by the Board have authenticity but that does not mean that documents submitted by the consumer has to be ignored out-right. Similar reasonings on behalf of the Board were raised before the Division Bench in the case of Suprabhat Steel Ltd. (supra) and their Lordships held that but the same does not mean that the records maintained by the consumers are not admissible in evidence. A consumer is entitled to prove that he had made such arrangements so as to correctly and faithfully record the tripping, load shedding and power cuts. He is also entitled to show that the Board has not maintained its records correctly. Holding aforesaid, their Lordships expressed the view that the Board should evolve a policy decision in this regard by directing the consumers to sent to it the details of such tripping, load shedding and power cuts at the end of each month stating the duration during which the consumer had not been able to take supply of electrical energy for the reasons mentioned in Clause 13 of the agreement. On this ground also, 1 am of the opinion, that the respondent No. 2 was not justified in ignoring the documents filed by the petitioner. If he would have some doubt regarding genuineness of the documents produced by the consumer, he should have asked for further details but could not have brushed aside the contention of the petitioner merely on the ground that records maintained by the Board would be the only basis for deciding the claim of remission.
11. Thus, in my view, on both accounts the impugned order dated 24.4.1996 cannot be sustained in law and is liable to be set aside with a direction to the respondent No. 2 for reconsideration of the claim made by the petitioner in the light of the decision of the Supreme Court in the case of Bihar State Electricity Board v. Dhanawat Rice and Oil Mills as well as the decision rendered by this Court in the case of Suprabhat Steel Ltd. (supra).
12. However, the order dated 10.8.96 impugned in C.W.J.C. No. 3675/96 (R) in my view, though requires reconsideration but not on the ground as contended by the petitioner.
13. I have already noticed above that in its claim the petitioner also made a ground for remission during the period when the establishment was closed for strike. Though on behalf of the Board claim of the petitioner was hotly contested before the respondent No. 2 but the respondent No. 2 negatived all such contentions and came to a conclusion that there had been a strike in the factory of the petitioner and for some period the electric connection was disconnected and as such, the petitioner was entitled for remission in AMG charges for the aforesaid period. Therefore, the respondent No. 2 allowed proportionate remission as per the guidelines issued by the Board in its Notification No. 810 dated 29.7.1994.
14. The grievance of the petitioner is that the respondent No. 2 found that the strike continued right upto 30.11.1995 thus, 100% proportionate remission ought to have been given and moreover when it was found that electric connection of the petitioner was disconnected from 21.6.1994 to 21.6.1995, remission should have been granted to the petitioner for the aforesaid period which amounts to Rs. 4,32,560/-. In my view, when the respondent No. 2 has categorically stated in his order that there may be miscalculation of the amount, the petitioner is at liberty to approach before him and satisfy that certain amount was not calculate properly by inadvertence.
15. I have already indicated above that in deciding such issues under Clause 13 of the Agreement, the General Manager is required to follow the decision rendered by the Supreme Court in the case of Bihar State Electricity Board (supra) as well as by this Court in Suprabhat Steel Ltd. (supra). However, if by following the law laid down by the courts the respondent No. 2 comes to a conclusion that the consumer is entitled to remission to the extent of certain amount, that calculation of amount cannot be interfered by this Court.
16. In the facts arid circumstances, while setting aside both the impugned orders dated 25.4.96 and 10.8.96, I allow both the writ applications by directing the respondent No. 2 to give an opportunity of hearing to the parties and consider the matter afresh in view of the above directions of the Supreme Court as well as this Court and to pass a reasoned order in accordance with law within four months from the date of receipt/production of a copy of this order. However, it is made clear that if the respondents No. 2 finds that in spite of earlier orders of this Court the petitioner has not made nay payment, until and unless the petitioner makes the payment its claim will not be reconsidered by the respondent No. 2.