Jharkhand Urja Vikas Nigam ... vs M/S Makers Casting India Private ...
2021 Latest Caselaw 4706 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Civil Writ Jurisdiction)
                     W.P.(C) No. 3117 of 2014
                          ........

Jharkhand Urja Vikas Nigam Limited .... ..... Petitioner Versus M/s Makers Casting India Private Limited .... ..... Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............

For the Petitioner                  : Mr. Mrinal Kanti Roy, Advocate
For the Respondent                  : Mr. N. K. Pasari, Advocate.
                                  ........
10/09.12.2021.
      Heard, learned counsel for the parties.

Learned counsel for the petitioner, Mr. Mrinal Kanti Roy has submitted that for compliance of order dated 23.11.2021, the copy of the order has already been handed over to the The Chairman-cum-Managing Director, Electricity Board two days ago, as such, what action has been taken by the The Chairman-cum-Managing Director, Electricity Board has not been communicated to him.

Learned counsel for the petitioner has submitted, that though as per statutory provision against the order of Consumer forum, the Appeal was maintainable before the Electricity Ombudsman, but when this writ petition was filed, he was not empannelled as counsel for the Jharkhand State Electricity Board / Jharkhand Urja Vikas Nigam Limited, as such, he is unable to address why writ petition has been filed, which remains pending before this Court, as such, it may be heard on merits.

Learned counsel for the petitioner has submitted, that though there is vast discrepancies in the reading of the Check Meter and Main Meter (Consumer Meter), but from perusal of Annexure-4 at page-28 to 30 and Annexure-4/1 at page-31 to 33 of the writ petition, it appears that there is a vast change in the pattern of consumption of electrical energy during the night hours.

Learned counsel for the petitioner has further submitted, that though there is no allegation of any pilferage of electrical energy, but when all the things have been examined and found to be corrected, the Electrical Executive Engineer made a request before the Electrical Superintending Engineer to give him guidelines so as to detect such discrepancies in the reading of Check Meter and Main Meter, but no reply has been given by the Electrical Superintending Engineer, which shall be

apparent from Annexure-3 at page-27 of the writ petition contained in letter No.233 dated 12.12.2011 and also brought on record by way of Annexure-2 to supplementary affidavit dated 25.11.2021, as contained in Memo No.2687/E.S.E./Jamshedpur dated 21.10.2011 issued to the Electrical Executive Engineer, M.R.T., Jamshedpur with request to test the meter and metering unit of Main Meter and Check Meter of M/S Makers Casting India (P) Ltd. Cons No. HJAP-204, as there is 16.78% difference of Consumption of both meters and even after testing nothing was found irregular, as such, the bill has been issued on the basis of the Check Meter.

By the impugned order the Vidyut Upbhokata Shikayat Niwaran Forum, Chaibasa at Jamshedpur vide Case No.05/2012, 07/2012 dated 17.08.2013 has quashed the bill, directing the petitioner, Jharkhand State Electricity Board to issue afresh bill, which has been challenged before this Court, as the same is causing revenue loss to the Jharkhand State Electricity Board.

Learned counsel for the petitioner has thus submitted that if this Court is not allowing this writ petition, then the matter may be remitted before the Electricity Ombudsman.

Learned counsel for the respondent, Mr. N. K. Pasari has submitted that order dated 23.11.2021 may be taken note of, as the same has been elaborately discussed the entire things as under:-

"Heard, learned counsel for the parties.

Learned counsel for the petitioner, Mr. Mrinal Kanti Roy has submitted, that writ petition has been filed by Jharkhand Urja Vikas Nigam Ltd. on 01.07.2014 through Sri Arun Kumar Shrivastava, son of Late R. K. Lal working as a Law Officer, Jharkhand Urja Vikas Nigam Limited, for quashing order dated 17.08.2013, passed in Case No.05 of 2012 by Vidyut Upbhokta Shikayat Niwaran Forum, Chaibasa at Jamshedpur, whereby the claim of the respondent- M/s Makers Casting India Private Limited has been allowed, quashing the energy bills raised by the petitioner- Jharkhand Urja Vikas Nigam Limited on the basis of the Check meter for the month of September, 2011 and October, 2011, directing the petitioner (JUVNL) to issue fresh energy bill of the aforesaid month, on the basis of reading recorded in Main meter, as earlier bill issued on the basis of Check meter is in total contraventions to the tariff provisions framed by Jharkhand State Electricity Regulatory Commission

for the applicable billing years.

In alternative, the petitioner- Jharkhand Urja Vikas Nigam Limited has also prayed that learned Court of Electricity Ombudsman, Jharkhand be directed to condone the delay in filing an appeal as per clause 19(3)(b) of Jharkhand State Electricity Regulatory Commission, Ranchi.

Learned counsel for the petitioner, Mr. Mrinal Kanti Roy has submitted that he has been empanelled by the Jharkhand Urja Vikas Nigam Limited vide notification in the month of July, 2020.

It appears from the ordersheets, that writ petition was preferred, stamp reporter has pointed out defects on 30.06.2014 and the writ petition was filed with defects on 01.07.2014.

The Joint Registrar (List & Computer) High Court of Jharkhand ordered on 08.07.2014 to list the writ petition before Lawazima Board.

The matter was listed on 11.07.2014, before Lawazima Board of Joint Registrar (Judicial), who granted two weeks' time to remove the defects, as -2- pointed out vide S.R. dated 30.06.2014.

The defects have not been removed, the matter was again listed before Lawazima of learned Registrar General on 18.02.2021, where nobody appeared on behalf of petitioner (JUVNL) to remove the defects. However, two weeks' time was again granted to remove the defects.

The matter was listed before this Court on 03.09.2021, and thus present counsel got knowledge, that certified copy of the impugned order has not been filed by the Jharkhand Urja Vikas Nigam Limited.

The matter remains defective for approximately 7 years from 01.07.2014 till the orders have been passed by this Court on 03.09.2021 and 06.09.2021.

Learned counsel for the petitioner, Mr. Mrinal Kanti Roy has submitted that pursuant to the order passed by this Court, he asked about the certified copy of the order dated 17.08.2013 passed by Vidyut Upbhokta Shikayat Niwaran Forum, Chaibasa at Jamshedpur in Case No.5 of 2012 and pursuant thereto a copy has been supplied by the Jharkhand Urja Vikas Nigam Limited on 20.09.2021, thus the same has been brought on record to remove the defect on 27.09.2021.

Learned counsel for the petitioner has thus submitted that though as per the act it was the duty of the Jharkhand Urja Vikas Nigam Limited to file statutory Appeal before the Electricity Ombudsman, but the appeal has been preferred as stated in para-20 of the writ petition, which may profitably be quoted hereunder:-

"20. That it is submitted that after passing of the order due to some delay in official process in taking final opinion regarding filing of appeal before learned Electricity Ombudsman, the

same could not be filed within prescribed time period of 60 days and moreover the post of Electricity Ombudsman was vacant at the relevant time and only in the month of May, 2014 an appointment has been made on the said post."

This Court really shocked to read this paragraph as this writ petition was affidavited on 20.06.2014, meaning thereby that at the time of affidavit sworn by the Law Officer, Shri Arun Kumar Shrivastava, he was aware of the fact that office of ombudsman is functioning, but deliberately he has filed this writ petition under Article 226 of the Constitution of India.

Not only this he being a Law Officer cannot take shelter by saying that he was not aware with the process of the filing because he has been working for the Electricity Board for last 20 years as stated by the counsel and though he is fully equipped being a law graduate about method and procedures of filing, which has been mentioned in the Jharkhand High Court Rules, 2001, which he must have gone through being a Law Officer.

Secondly, the prayer made in writ petition suggest that prayer for -3- condonation of delay before Electricity Ombudsman has been prayed, as appeal could not be filed within 60 days as well as due to vacancy of the post of Ombudsman.

Under the aforesaid circumstances, this Court has no doubt that this Law Officer has deliberately filed this writ petition dehorsing the regular procedure of filing Appeal before the Ombudsman, as the office of the Electricity Ombudsman was functioning and working at that time of filing, as endorsed by learned counsel for the petitioner. Thus it seems to the court that Law Officer has deliberately filed the writ petition defective and kept this case pending for seven years, which caused Revenue loss to the Jharkhand Urja Vikas Nigam Limited.

However, this Court is not passing directly any order against the Law Officer and remitting the matter to the Chairman-cum-Managing Director of the Jharkhand Urja Vikas Nigam Limited to look into such matters and take remedial method to protect the interest of the Jharkhand Urja Vikas Nigam Limited by taking suitable steps against the erring officer like the petitioner.

So far merit of the case is concerned, learned counsel for the petitioner, Mr. Mrinal Kanti Roy has submitted that though the writ petition was filed as an alternative remedy and regular recourse is to file Appeal before the Electricity Ombudsman but since the writ petition has been filed long before his notification as a Law Officer, he is not in a position to withdraw the same with a liberty to avail the legal remedy available under the law before the Electricity Ombudsman and presently the post of forum of Electricity Ombudsman is vacant as such, under compelling circumstance he has to submit on merits.

Learned counsel for the petitioner, Mr. Mrinal Kanti Roy has further submitted that respondent- M/s Makers Casting India Private Limited is a regular consumer of High Tension Electricity since long and as per High Tension Electricity connection, there is a Consumer Meter (Main Meter) in the premises of the Consumer and a parallel meter outside the premises of the consumer which is called Check Meter.

From reading of the Consumer Meter and Check Meter, which has been brought on record as Annexure-4 at page-28 to 30 Annexure-4/1 at page-31 to 33 of the writ petition, there is vast gap with regard to consumption of electricity in the night hour. Thereafter the Electrical Executive Engineer, MRT Division, Jamshedpur was requested vide T.O. Letter no.2687 dated 21.10.2011 for testing of meters i.e. metering unit of Consumer Meter and Check Meter to confirm the reason of abnormal difference in consumption between Consumer meter and -4- Check meter.

Both the Meters were checked in presence of the parties by MRT wing on 09.11.2011 and everything was found normal during the test. Thereafter the report was sent to the Electrical Executive Engineer, MRT Division, Jamshedpur for further action in this matter vide letter No.233 dated 12.12.2011. Thereafter, after testing the Consumer Meter and Check Meter, it was concluded by Jharkhand Urja Vikas Nigam Limited that Consumption of Consumer (Main) Meter is suppressed and to show that, graph of consumption of Main Meter and Check Meter have been brought on record as Annexure-4 at page 28 to 30 as Annexure- 4/1 at page 31 to 33 respectively of the writ petition.

Learned counsel for the petitioner has further submitted, that consumer by applying some means, consume more electrical energy during night hours, which has not been recorded in the Main(Consumer) Meter, but recorded in the Check Meter causing financial loss to the Jharkhand Urja Vikas Nigam Limited and thus Bill was raised accordingly which has been challenged by Consumer before the Vidyut Upbhokta Shikayat Niwaran Forum, Chaibasa at Jamshedpur in Case No.05/2012, who has set aside the demand made by the Electrical Board to the tune of Rs.14,40,000/-, directing the Board to issue fresh bill on the basis of reading recorded in the Main (Consumer) Meter.

Learned counsel for the petitioner has thus submitted that because of the circumstances as stated above writ petition has been preferred before this Court.

Learned counsel for the respondent, Mr. N.K. Pasari has submitted that writ petition is itself not maintainable, as at the time of preferring the writ petition admittedly, the forum of Electricity Ombudsman was functioning. They have not preferred appeal within 60 days as per the limitation, which cannot be

extended by any Court of law, in view of the recent judgment passed by the Apex Court in the case of Assistant Commissioner (CT) LTU, Kakinada & Ors. Vs. Glaxo Smith Kline Consumer Health Care Limited, reported in 2020 SCC Online SC 440 decided on 06.05.2020, though the case is with regard to the tax and here the case is with regard to consumption of electrical energy. This amount cannot be recovered by preferring any remedy after 60 days in accordance with law, as such, the writ petition is itself not maintainable.

Learned counsel for the respondent has further submitted, that respondent is a bonafide industrialist thus, for Execution of the impugned order passed by Vidyut Upbhokta Shikayat Niwaran Forum, Chaibasa at Jamshedpur dated 17.08.2013, passed in Case No.5 of 2012 / 7 of 2012, the respondent preferred an -5- Execution Case No.5 of 2014 before the Jharkhand State Electricity Regulatory Commission, Ranchi and pursuant to the order dated 01.07.2014 as directed by the Jharkhand State Electricity Regulatory Commission, Ranchi, the entire amount has been deposited before the Jharkhand Urja Vikas Nigam Limited under the protest and now the position is that because of inaction on the part of the petitioner- Jharkhand Urja Vikas Nigam Limited, no fresh bill has been issued nor the excess money deposited by the respondent have been returned, which may be returned with interest from the date of deposit till the date of refund.

Learned counsel for the respondent has drawn attention of this Court towards Section 181(1) of the Electricity Act, 2003 where it has been held that the State Commission may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of the Act, and further section 181(2)(x) of the Electricity Act, 2003 speaks about electricity supply Code under Section 50, which reads as follows:-

"50. The Electricity Supply Code- The State Commission shall specific an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for nonpayment thereof, restoration of supply of electricity, measures for preventing tampering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters."

Learned counsel for the respondent has further submitted that in such view of the matter even though the Jharkhand Urja Vikas Nigam Limited has to examine the order passed by the Vidyut Upbhokta Shikayat Niwaran Forum, Chaibasa at Jamshedpur, no application was filed before the forum of Electricity Ombudsman and thus the matter has been delayed, where the amount is to be returned to the respondent along with interest and the matter has been deliberately kept pending by Jharkhand Urja Vikas Nigam Limited by

non-removing the defects for more than 7 years that too within full knowledge of the Law Officer.

Learned counsel for the respondent has further submitted that the entire case of the petitioner is fit to be dismissed on ground, that this issue is no more res integra as it has already been decided by the co-ordinate Bench of this Court in W.P.(C) No.2413 of 2011 dated 12.03.2015. The relevant part of page no.7 of judgment passed in W.P.(C) No. 2413/2011, which may be profitably be quoted hereunder:-

"From the plain reading of the definition of theft of electricity, it is clear that if it is found that a person dishonestly damaged the meter, apparatus, equipment, or wire with a view to interfere with the proper or accurate metering of electricity then it can be said that he had committed theft of electricity. In the -6- instant case, there is no direct evidence to show that the petitioner damaged the Check Meter. It is worth mentioning that the Check Meter was installed outside the boundary wall of the petitioner factory premises and it is accessible to general people."

Learned counsel for the respondent has drawn attention of this Court towards page 22 of the counter-affidavit filed by the respondent- M/s Makers Casting India Private Limited, where it has specifically mentioned that since reason for mismatch between Main & Check Meter reading could not detected hence further investigation & regular monitoring may be done, if required and same has been reiterated in page 24 of the counter-affidavit, that in metering unit LV Box Cover, Locking Arrangement is not proper. Same to be rectified, but from perusal of these two documents, it is apparent that there is no allegation of any theft as held by co-ordinate Bench of this Court in the case of M/s Satan Commodities Pvts Ltd. vs. Jharkhand State Electricity Board & Ors., which has never been challenged before the Division Bench of this Court, though the Board (JUVNL) is respondent in that case, as such, in view of such submissions writ petition is fit to be dismissed with heavy cost.

Learned counsel for the respondent has further submitted that the Jharkhand State Electricity Regulatory Commission, Ranchi has already held that there is no provision under the law to issue bill, on the basis of Check meter rather the same has to be issued on the basis of Main Meter (Consumer) and the same has been affirmed by this Court in the aforesaid judgment of M/s Satan Commodities Pvts Ltd. vs. Jharkhand State Electricity Board & Ors., which has never been challenged before the appropriate forum by the Jharkhand State Electricity Regulatory Commission, Ranchi which is within the knowledge of the Jharkhand State Electricity Board and the writ petitioner herein was contesting party in that case.

Since, this writ petition has been filed under alternative remedy by the Law Officer it is necessary to bring the entire matter to the knowledge of

Chairmancum-Managing Director for following reasons:

(i) Though the order of the Vidyut Upbhokta Shikayat Niwaran Forum, Chaibasa at Jamshedpur was passed in the Case No. 5 of 12 / 7 of 2012 on 17.08.2013 directing the Jharkhand Urja Vikas Nigam Limited to issue a fresh energy bill of the aforesaid months, on the basis of reading recorded in Main (Consumer) Meter, but instead of assailing that order before the forum of Electricity Ombudsman, which was available to the writ petitioner at the time of filing of the writ petition, the present writ petitioner has preferred this writ petition through -7- Law Officer before the Jharkhand High Court on 01.07.2014.

The Law Officer, Sri Arun Kumar Shrivastava, S/o Late R.K. Lal has preferred the present writ petition before this Court in the year 2014 and that writ petition remained defective till this Court has directed the Board to remove the defect in terms of order dated 03.09.2021, and 06.09.2021 and thereafter the defect has been removed meaning thereby, the Law Officers have not acted in the interest of the organization rather they have only complied the order of the Court that too after a unexplained delay of more than 7 years, even though they are taking salary from the public account for protecting interest of the institution. (ii) That instead of withdrawing this writ petition, the Law Officer is callous as the forum of Electricity Ombudsman was functioning on the date of filing and subsequent thereto but he did not choose to withdraw the writ petition to agitate the issue before the Electricity Ombudsman rather tried to delay the procedure.

The Chairman-cum-Managing Director, JUVNL, is directed to look into the matter regarding functioning of JUVNL, as the respondent (M/s Makers Casting India Private Limited) has deposited entire dues in compliance of order passed by Jharkhand State Electricity Regulatory Commission, Ranchi in their Execution Case now the amount has to be returned with interest. Once writ petition is dismissed, which has not been filed under wrong forum, but also instead of issuing fresh bill in compliance of order passed by Vidyut Upbhokta Shikayat Niwaran Forum, Chaibasa at Jamshedpur.

Under the aforesaid circumstances, the Chairman-cum-Managing Director is directed to look in to the matter, that if a single rupee is to be refunded in the form of interest in favour of the respondent, the same cannot be paid from the account of Jharkhand Urja Vikas Nigam Limited rather the same is to be paid from the personal pocket of the erring officer.

Learned counsel for the petitioner is directed to bring into the notice of the Chairman-cum-Managing Director, Electricity Board about this matter and after seeking instruction apprise this Court with regard to compliance of order and place the case on merits.

Let the matter be appeared before this Court on 08.12.2021. Since show-cause filed by the Chairman-cum-Managing Director pursuant to the order dated 06.09.2021 is not on record. Office is directed to place the same on record."

Learned counsel for the respondent, Mr. N. K. Pasari has further submitted that so far maintainability of the writ petition is concerned, nothing more is required to argue, as this Court has already taken note in order dated 23.11.2021 and has further submitted that on the date of filing of the writ petition, the office of Electricity Ombudsman was already there, but to linger the issue the Jharkhand State Electricity Board / JUVNL deliberately filed the writ petition before this Court against the statutory provisions of appeal before the Electricity Ombudsman and deliberately the case was kept pending since 2014 to 2021, because of non filing of the impugned order passed by Vidyut Upbhokata Shikayat Niwaran Forum, Chaibasa at Jamshedpur. This shows the intention of the Officers in keeping the matter pending.

Learned counsel for the respondent has further submitted, that so far merit is concerned, as per the pleading of the Electricity Board itself, even after testing the metering unit of Main Meter and Check Meter of M/S Makers Casting India (P) Ltd., there was no discrepancies detected by the JSEB, as such, in view of the judgment passed by Coordinate Bench in the case of M/s Stan (Satan) Commodities Pvts Ltd. vs. Jharkhand State Electricity Board & Ors., reported in 2015 SCC Online Jhar 1398, in which the Jharkhand State Electricity Board was also a party, which has attend finality, as the same has not been challenged by the Jharkhand State Electricity Board, as such, in view of the aforesaid judgment, the bill is to be issued on the basis of Main Meter reading i.e. Consumer Meter reading, as such, petitioner (JUVNL) has no case.

Considering such submissions, in view of order dated 23.11.2021 passed by this Court as well as in view of the maintainability and judgment passed by Co-ordinate Bench of this Court whereby issue has already been decided by the Co-ordinate Bench, the instant writ petition is hereby dismissed.

Before parting with the judgment, this Court has onus that Jharkhand State Electricity Board should not suffer with any revenue loss.

This Court directs the Chairman-cum-Managing Director, Electricity Board to recover the said amount from the erring officers in accordance with law within a period of three months, as it is the duty of the Engineer (erring officers) to remain vigilant in his area for 24 hours to stop the pilferage of electrical energy.

If he has any doubt about anything, the officer would have been informed the superior officer or the local police station to conduct such raid, but because of inaction on the part of an official of Jharkhand State Electricity Board or Jharkhand Urja Vikash Nigam Limited, the Board cannot suffer with revenue loss.

Under the aforesaid circumstances, liberty is given to the Chairman- cum-Managing Director, Electricity Board to recover the same from the erring officer in accordance with law within a period of three months from the date of production of the order.

(Kailash Prasad Deo, J.) Jay/