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High Court of Patna
Aftab Alam, J.
M/s Gaya Roller Flour Mills Pvt. Ltd. – Petitioner
Vs.
Bihar State Electricity Board and ors. – Respondents
C.W.J.C. No. 1167 of 1994
Decided on : 15.9.1995
ELECTRICITY - TARIFF - ANNUAL MINIMUM GUARANTEE - CHARGES PAYABLE BY CONSUMER - DELAYED PAYMENT SURCHARGE - NOT LEVIABLE ON BILL RAISED ON BASIS OF DEFECTIVE METER.
Fact of the Case:
The petitioner challenged an order holding him liable to pay electrical charges for the period October 1988 to May 1991. The petitioner had requested disconnection of his line on 20.4.1988, but the request was not acted upon and he continued to receive and use electricity. The petitioner argued that the agreement was determined on 20.4.1989 and no demand could be raised for charges from that date till the line was restored on 29.3.1991.
Finding of the Court:
The court held that the petitioner was liable to pay for the electricity consumed after 20.4.1989, despite the notice for disconnection, as the contract was kept alive by his continued use of electricity. The court also held that the delayed payment surcharge was not leviable on the bill raised on the basis of a defective meter.
Issues: 1. Whether the petitioner was liable to pay electrical charges for the period after he had given notice for disconnection of his line? 2. Whether the delayed payment surcharge was leviable on the bill raised on the basis of a defective meter?
Ratio Decidendi: 1. The accrual of the right of determination of the contract is one thing and the actual determination of the contract, in exercise of that right, is something quite different. In the instant case, a right might have accrued to the consumer on the basis of the notice dated 20.4.1988 but notwithstanding the notice the contract was kept alive and subsisting by the action of the consumer in continuing to receive and utilise electricity. He would, therefore, be liable to all the obligations in terms of the contract. 2. The delayed payment surcharge is not leviable on the bill raised on the basis of a defective meter.
Final Decision: The petition was dismissed subject to the observations made by the court. The petitioner was held liable to pay the amount after deducting the delayed payment surcharge included under different heads.
The controversy in this application relates to the dues payable by the petitioner to the Board as electrical charges for the period October. 1988 to May, 1991 and the petitioner seeks to challenge an order dated 6.9.1993 (copy at Annexure 10) passed by the Electrical Superintending Engineer, Gaya, Electrical Circle (E), Gaya holding the petitioner liable to pay a sum of Rs.11,36,651.31. In the impugned order the Electrical Superintending Engineer has left it open to the petitioner to approach the proper authority for necessary direction for making the payment of the dues in instalments.
2. Earlier a demand was raised against the petitioner vide letter dated 22.5.1992 for payment of a sum of Rs.12,86,624.62 as electrical charges (for the period October, 1988 to May, 1991). The petitioner challenged that demand on the ground of wrong billing in C.W.J.C. No. 8182/1992. That writ petition was disposed of by a Bench of this court by order dated 10.5.1993. At that stage, this court was of the view that the matter required investigation of facts and accordingly asked the petitioner to file a representation regarding his grievances before the Electrical Superintending Engineer, Gaya, who in turn was directed to consider the petitioner's grievances and to dispose of his representation on a proper verification from the records and after giving a hearing to the parties.
3. Following the direction of this court, tile Electrical Superintending Engineer heard the parties, examined the Board's records placed before him by the Assistant Electrical Engineer and the Electrical Executive Engineer and then passed a detailed order which comes under challenge in this application.
4. The petitioner was given a high tension electrical connection following the execution of the H.T. agreement on 21.6.1984. On 20.4.1988 the petitioner made a request for the disconnection of his line before the officials of the Board. However, it is not in dispute that the request was not acted upon and the petitioner continued to receive and use electricity, till his line was disconnected on 18.12.1989 for non-payment of the dues. On 29.3.1991 the electrical connection was restored on the petitioner's request and on payment of Rs.50,000/- towards the liquidation of the earlier dues. On 27.5.1991 the electrical line was once again disconnected and finally on 30.6.1992 the electrical meters etc. were removed from the petitioner's premises. These are some of the relevant dates regarding which there is no dispute between the parties.
5. From a perusal of the impugned order, it appears that the Electrical Superintending Engineer found and held that during the relevant period the electrical meter installed at the petitioner's premises was defective and was not recording correct readings. The Superintending Engineer also noticed that the petitioner had requested the Board authorities to disconnect the line on 20.4.1988. He, however, further found that the lines were not disconnected because "he did not complete the departmental formalities". It was further pointed out that there was also an order of stay against any disconnection of the petitioners' line in an earlier case being CWJC No.527/1988 filed by the petitioner in this Court which was still pending final disposal. The Superintending Engineer also found that from 1.2.1989 to 27.1.1991, except for the period when the line remained disconnected on account of non-payment of arrears, the petitioner had actually received and consumed electricity.
6. Mr. N.K. Agrawal, learned counsel for the petitioner submitted that on admitted facts, no demand for electrical charges could be raised against the petitioner for the period 20.4.1989 to 29.3.1991, the date on which the connection was restored on the petitioner's request. Mr. Agrawal submitted that it was an admitted position that the petitioner had given a notice dated 20.4.1988 asking the officials of the Board to disconnect his line. Then, with reference to clause 9 (a) of the
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