IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.W.J.C. No. 1594 of 2000 (R)
M/s. Bijoy Mining Company Ltd. ... ... Petitioner
Versus
Bihar State Electricity Board & Ors. ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE AJIT KUMAR SINHA
For the Petitioner: Mr. Binod Poddar, Sr. Advocate
Mr. Biren Poddar, Advocate
Mr. Piyush Poddar, Advocate
For the Respondents: Mr. V.K.Prasad, Advocate
Mr. Gautam Rakesh, Advocate
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C.A.V. on 12.05.2009 Pronounced on 21. 05.2009.
ORDER
07/ 21.05.2009
. The present writ petition has been preferred for the following
relief:-
(a) For a direction upon the Respondents to forthwith reduce the
contract demand to 200 KVA from 240 KVA with effect from its
date of application i.e. 13.5.1995 (Annexure-2) pursuant to which
the officials of the Board already conducted load verification in the
petitioner’s premises on 26.5.1995 (Annexure-4) and since then
the Respondents are sitting tight over the matter although the
petitioner has been giving reminders from time to time to them for
the said purpose,
(b) For a direction upon the Respondents to calculate and refund the
excess amount charged and realized from the petitioner since May,
1995 till date i.e. the difference of charges between the old
constructed load of 240 KVA and the reduced load of 200 KVA for
which application was filed on 13.5.1995 (Annexure-2),
(c) For a direction upon the Respondents to consider the application
dated 29.11.1995 (Annexure-2) filed by the petitioner in
prescribed form after depositing the fee of Rs.70/- for the same
vide receipt No. 671068 dated 20.11.1995 (Annexure-5/1) before
Respondent No. 7 on 29.11.1995 itself for reduction in the
contracted load from 240 KVA to 200 KVA and to reduce the
contracted load accordingly to 200 KVA and grant such reduction
in load in energy bills with effect from the date of said application
dated 29.11.1995.
2. The facts in brief are stated as under:-
The petitioner has a mining business at Daltonganj in the
district of Palamau. It had entered into an agreement on 1.4.1986
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with the respondent Board for supply of electricity under Tariff Symbol
H.T.S.-I having its consumer No. D-350. The contract demand as
mentioned in serial No. 4 to the schedule at page-7 of the H.T.
Agreement was 240 KVA and the bills were raised by the Board and
the petitioner was paying the bills accordingly.
3. The case of the petitioner is that it started experiencing low
voltage in supply which made it impossible to run its factory and in
order to reduce the load the petitioner closed down one of its Roller
Mills in the month of October, 1994 and the same was duly informed
to the Electrical Engineer (Rural). The petitioner also applied for
withdrawal of one of the aforesaid mills from its factory vide its
application dated 12.5.1995.
4. To ascertain the load of the petitioner and its transformer’s
capacity for taking further action in the matter a committee inspected
the premises on 26.5.1995 and prepared a verification report signed
by all the members of the verification team showing the load of the
petitioner, based on the capacity of the machineries installed in the
factory of the petitioner and on calculation of the load of the different
machineries recorded in the said verification report the total load of
the petitioner was found to be 220.75 HP i.e. equivalent to 205.95
KVA.
5. As against the reduced requirement the petitioner applied for
reduction of load only to the extent of 200 KVA and in reply
Respondent No. 5 vide its letter dated 29.8.95 directed to deposit
requisite application fee and to file application in proper form for load
reduction in the Office of the Assistant Electrical Engineer. Finally on
deposit of the requisite fee a fresh application for load reduction in
prescribed form for new connection was applied alongwith the money
receipt. No action was taken on the application and the energy bills
continued to be raised based on contract demand of 240 KVA. Being
constrained the petitioner again wrote a letter on 27.8.99 to intervene
in the matter personally since four years had already passed but no
action was taken to reduce the contract demand and the petitioner
was compelled to pay at the old contract demand of 240 KVA.
6. The petitioner being constrained preferred this writ petition for
reducing the contract demand to 200 KVA from 240 KVA from the
date of its application dated 13.5.95 and has further prayed for refund
of the excess amount charged from the petitioner.
7. The learned counsel for the respondent in their counter-
affidavit at paragraphs-6(d) & (e) has submitted as under:-
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“6(d) As per clause 9 of the H.T. Agreement, the load of an
applicant consumer can be reduced only after one year
from the date of first information, meaning thereby that a
consumer will be charged on the basis of its earlier load
till the completion of one year from the date of
application for reduction of load.
(e) From December, 1995 to July, 1997, the petitioner was
billed on the basis of 216 KVA as per the letter dated
4.3.98 issued by the Respondent No. 4 which the
petitioner readily accepted and did not raise any objection
in this regard till date.”
8. It has also given chart/statement as per the load verification
report and has reiterated the fact that the bills between the period
from December, 1995 to July, 1997 were raised on the basis of 216
KVA which the petitioner had readily accepted and did not raise any
objection and thus the claim for further reduction to 200 KVA was
unsustainable.
9. I have considered the rival submission and the pleading. The
main contention raised by the learned counsel for the petitioner is that
it was incumbent upon the respondent to reduce the load from 240
KVA to 200 KVA w.e.f. the date of application i.e. from 13.5.1995. It
has further been submitted that at least after a lapse of one year from
the date of application the load reduction should have been allowed.
10. In the counter-affidavit at paragraphs-6(d) & (e), as quoted
hereinabove, it will be evident that even the Board on oath has stated
that they are ready and willing that as per Clause 9 of the H.T.
Agreement to reduce the contract load only after one year from the
date of application to reduce the contract load. It is also admitted that
from December, 1995 to July, 1997 the petitioner’s bill was raised on
the basis of 216 KVA and the petitioner readily paid it without any
objection. As per Clause 9 of the H.T. Agreement, the same can be
determined before the expiry of three years from the date of
commencement of the supply of energy. It further provides that the
consumer can also determine this agreement on giving twelve months
prior notice in writing.
11. Be that as it may, in view of the admitted position as stated in
the counter-affidavit and also in view of the fact that the bills were
raised on the reduced contract load of 216 KVA from 1995 onwards
and the same was paid by the petitioner without any objection and
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thus to that extent it can be considered to be an admitted position on
the part of both the parties i.e. the petitioner as well as the Board.
12. This issue in question was also considered in Associated
Cement Company Ltd. Vs. Bihar State Electricity Board reported in
2002(3) JCR page 638, wherein a Division Bench of this Court at
paragraph-10 held as under:-
“10. Be that as it may, it appears that the respondent-Board
subsequently realized their arbitrary action by rejecting
application of the petitioner dated 5.11.1987 and then the
subsequent application filed by the appellant was entertained
and was recommended by Executive Engineer, Superintending
Engineer for reduction of load. Learned Single Judge therefore,
rightly came to the conclusion that appellant was entitled to
reduction of load from 12000 KVA to 9000 KVA. The
contention of the appellant is that the reduction of load ought to
have been given from 12000 KVA to 8000 KVA cannot be
accepted for the reason that admittedly after the application
dated 5.11.1987 the contract load was found in between 8000
KVA to 9000 KVA. However, in our view, the learned Single
Judge was not justified in holding that the reduction of
maximum contract demand will be effective from June, 1991 as
notice for reduction of load was given in May, 1990. It has not
been disputed by the Board that notice dated 5.11.1987 was
served upon the Board for reduction of load from 12000 KVA to
8000 KVA and the said application was processed and
recommended by the authorities but it was ultimately rejected on
the ground that as per the condition put in the agreement the
appellant was not entitled to reduction of contract demand. Once
it was held that rejection of that application on that condition
was illegal and arbitrary and when such condition was put in the
agreement was passed by the learned Single Judge then there is
no reason why the appellant would not be entitled to reduction
of load with effect from expiry of one year from the date of
service of notice dated 5.11.1987. In our view therefore, the
appellant company became entitled to reduction of maximum
contract demand from 12000 KVA to 9000 KVA with effect
from December, 1988.”
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13. The Hon’ble Supreme Court in M.P. Electricity Board and
Another vs. Manju Singh Chauhan, reported in (2000) 10 SCC page
290, while considering a similar issue of reduction of the maximum
contract load from 168 KVA to 100 KVA had held at paragraph- 8 and
9 as under:-
“8. It is contended that the Board itself, after taking into consideration
the circumstances, had reduced the load from 168 KVA to 143
KVA with effect from 1-8-1987 and again to 126 KVA with effect
from 1-4-1988. It is contended that if the load could be reduced by
the Board for the period indicated above, there was no reason why
it could not have been reduced on the request of the respondent
for the period in question. It was pointed out to the Commission
that the reduction in the contracted load was done in the light of
the decision taken by the Board on the representation of the
Federation of M.P. Chambers of Commerce and Industry. They
had given sufficient reason for the reduction granted to the
respondent on the earlier occasion and that it could not be treated
as a binding precedent.
9. We are firmly of the view that the action of the Board in
refusing the reduction of the load from 168 KVA to 100
KVA as requested by the respondent was wholly in
consonance with the terms of the agreement between the
parties. That being so, there was no deficiency of service
involved in this case and the claim petition was not
maintainable before the National Commission under the
Act.”
14. We are bound by the judgment of Hon’ble Supreme Court.
Relying upon the aforesaid judgements it will be relevant to refer once
again paragraph(e) of the counter affidavit as quoted in paragraph-7
wherein the Board itself after considering the verification report, the
consumption and all the factual aspects of the matter took the decision
to reduce the contract load to 216 KVA based on which the energy bills
were raised and the petitioner without any objection paid the same
and thus in the light of the aforesaid admitted position and the facts
and circumstance as discussed hereinabove, it will be appropriate to
direct the Board to consider raising the bills for the period in question
based on 216 KVA as per the reduction granted with effect from
December, 1995 to July, 1997.
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15. Considering the peculiar facts and circumstances of the case
this writ petition is partly allowed in the light of the aforesaid direction
and in case of any extra payment already made for the energy bills
beyond 216 KVA after 1995 the petitioner will be entitled to refund of
the amount in excess already paid.
(Ajit Kumar Sinha, J.)
Jharkhand High Court, Ranchi
Dated the 21st May, 2009
D.S./sudhir N.A.F.R.