M/S. Orchid Medical Centre Pvt. ... vs Jharkhand Bijli Vitran Nigam ...
2022 Latest Caselaw 3903 Jhar

                                       1

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(C) No. 4792 of 2022
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M/s. Orchid Medical Centre Pvt. Ltd., Ranchi through its Director-

      Mr. Raj Kumar Agarwal                          ...    ...      Petitioner
                                        Versus

1. Jharkhand Bijli Vitran Nigam Limited (JBVNL) through its Managing Director, Ranchi

2. The General Manager-cum-Chief Engineer, JBVNL, Electricity Supply Area, Ranchi

3. The Electrical Superintending Engineer, Jharkhand Bijli Vitran Nigam Limited, Electric Supply Circle, Ranchi

4. The Electrical Executive Engineer (Commercial & Revenue), Electric Supply Circle, Ranchi .... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. M.S. Mittal, Sr. Advocate Ms. Ayushi Agarwal, Advocate Mr. Aditya Khandelwal, Advocate For the Respondents : Mr. Sachin Kumar, Advocate

Order No. 02 Dated: 23.09.2022

At the request of the learned senior counsel for the petitioner, the defect, as pointed out by the office, is ignored.

2. The present writ petition has been filed seeking following reliefs:

(i) For quashing the notice issued under Section 56 of the Indian Electricity Act, 2003 (Annexure-9 to the writ petition) by which the respondents have threatened to disconnect the electricity connection of the petitioner if it fails to pay Rs.85,06,578/- which has been said as outstanding dues of energy bill up to the month of July, 2022 which, according to the petitioner, is unknown figure and with respect to same no bill was raised.

(ii) For quashing the arrear amount of energy bill reflected for the very first time in bill of month of May, 2022 for an amount of Rs.80,34,028/- in as much as neither any bill relating to the said amount has been raised nor any notice has been issued by the respondents to the petitioner about the same enabling it to raise any objection.

(iii) For declaring and holding that in any view of the matter, the respondents cannot realize any bill after the

period of two years from the date when such sum showing as outstanding energy charges became due for the first time as it is barred by limitation as postulated in Section 56 (2) of the Electricity Act, 2003 (in short, "the Act, 2003") as well as the impugned arrears are liable to be struck down on account of the fact that testing regarding accuracy of the meter installed in the petitioner's hospital premises has not been done in compliance of regulation 9.4 of the Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2015 (in short, the Regulations, 2015") and also it has been raised in violation of Clause A10.9.1 of the said Regulation.

3. The facts of the case as stated in the writ petition is that initially, the petitioner took an electric connection under H.T. category having a contract demand of 150 KVA. The line was energized on 27.01.2017 and a meter of "Secure Meter Ltd." having serial no. JSE-39961 was installed. In the installation report, the multiplying factor of the meter was mentioned as 1.333 and in the remarks column at serial no. VII also, the multiplying factor was mentioned as 1.333. The consumer number of the petitioner is PL10088. Later on, the petitioner requested to enhance its load from 150 KVA to 250 KVA with same consumer number and having the same meter of "Secure Meter Ltd." having multiplying factor of 1.333, which was duly sanctioned by the Electrical Superintending Engineer, Electric Supply Circle, Ranchi (the respondent no. 3) vide letter no. 1022/E.S.E. dated 22.02.2017 and an agreement to that effect was also executed. The petitioner also paid the enhanced security amount of Rs.2,88,000/-. Accordingly, the electricity bill was issued to the petitioner showing enhanced contract demand of 250 KVA and more particularly multiplying factor was also depicted in the bills as 1.34. The petitioner continued to pay monthly electricity bill and there is no outstanding dues whatsoever against the petitioner. Surprisingly, the petitioner received the electricity bill of Rs.80,34,028/- for the month of May, 2022 showing the same under the head of "E-charges" without any further details. On perusal of the said bill, it would be evident that the current bill for the month of May, 2022 is

Rs.1,42,848.35 but an unexplained and unaccounted amount of Rs.80,34,028/- has been shown in the same under the head of E-charges. However, on receipt of the said bill, the petitioner, vide its letter dated 01.07.2022 requested the Electrical Executive Engineer (Commercial & Revenue), Electric Supply Circle, Ranchi (the respondent no.4) to furnish details of the amount of Rs.80,34,028/- shown in the bill for the month of May, 2022. In response to the said letter, the respondent no. 4, vide letter dated 07.07.2022, informed the petitioner that the amount of Rs.80,34,028/- charged in the H.T. energy bill for the month of May, 2022 is due to difference in the multiplication factor being used for the billing purpose during the period from 06.03.2017 to 30.04.2022.

4. Mr. M.S. Mittal, learned senior counsel for the petitioner, submits that the petitioner has always been issued electricity bills showing 1.34 as multiplying factor since very beginning and the bill for the month of June, 2022 also reflects the same multiplying factor. However, the respondent no. 4, vide letter no. 3110/ESC, Ranchi dated 10.09.2022, directed the petitioner to make payment of outstanding dues of Rs.85,06,578/- up to the bill of July, 2022 within 15 days from the date of issuance of the said letter failing which, the electric connection of the said premises was to be disconnected. The said letter was issued by the respondent no. 4 treating the same as notice under Section 56 of the Act, 2003. Thereafter, the respondent no. 3 provided a calculation sheet to the petitioner and as per the calculation of the petitioner, the difference of amount payable from March, 2017 to May, 2022 is Rs. 78,15,449.02 out of which the total amount chargeable till April, 2020 is Rs.46,11,824.05 and consequently the amount payable for the last two years is Rs.32,03,624.97/-.

5. Mr. M.S. Mittal, learned senior counsel for the petitioner, further submits that since the "Vidyut Upbhokta Shikayat Niwaran Forum" (VUSNF), Ranchi created by the respondent no. 1-JBVNL under Section 42(5) of the Act, 2003 is presently non-functional due to lack of quorum, the petitioner is compelled to prefer the present writ petition. It is also submitted that the aforesaid facts would clearly suggest that no supplementary bill with respect to the impugned demand has ever been raised by the respondent no. 2. Moreover, no opportunity of hearing was provided to the petitioner before raising the said demand. Learned senior

counsel for the petitioner puts reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Assistant Engineer (DI), Ajmer Vidyut Vitran Nigam Limited and another Vs. Rahamatullah Khan alias Rahamjulla reported in (2020) 4 SCC 650 and submits that in the said judgment, the Hon'ble Apex Court while interpreting the provision of Section 56(2) of the Act, 2003 has clearly held that raising any additional demand due to discovery of mistake in billing cannot go beyond the period of two years and the distribution licensee cannot disconnect the electricity supply due to non-payment of the said dues. In the present case, the impugned demand of Rs.80,34,028/- has been shown in the monthly energy bill of May, 2022 for the first time, that too without disclosing the details of the same. Raising of such a huge demand in one go is also contrary to sub-clause 19(xiv) of Clause 10.9.1 of the Regulations, 2015 which provides that the arrears must be accompanied with the details of the same. Learned senior counsel for the petitioner thus submits that the impugned demand of Rs.80,34,028/- may be stayed during pendency of the writ petition.

6. Mr. Sachin Kumar, learned counsel for the respondents, submits that arrear of Rs.80,34,028/- shown in the monthly energy bill of May, 2022 is with respect to short charging of energy bills from March, 2017 to May, 2022 due to wrong application of multiplying factor of the meter installed in the premises of the petitioner. After noticing the said mistake, the impugned demand has been raised against the petitioner and therefore there is no illegality in the same. It is also submitted that raising the monthly energy bills to the petitioner for the said period by wrongly applying the multiplying factor has in fact benefitted the petitioner. The judgment rendered by the Hon'ble Supreme Court in the case of Rahamatullah Khan (supra) has subsequently been considered in the case of Prem Cottex Vs. Uttar Haryana Bijli Vitran Nigam Ltd. and Others reported in 2021 SCC OnLine SC 870 wherein it has been held that the question of neglect to pay any charge for electricity would arise only after a demand is raised by the licensee. If the demand is not raised, there is no occasion for a consumer to neglect to pay any such charge. Sub-section (2) of Section 56 of the Act, 2003 has a non-obstante clause with respect to what is contained in any other law, regarding the right to

recover including the right to disconnect. Therefore, if the licensee has not raised any bill, there can be no negligence on the part of the consumer to pay the bill and consequently the period of limitation prescribed under sub-section (2) of Section 56 of the Act, 2003 will not start running. Learned counsel for the respondent, however, prays for four weeks' time to seek instruction and file counter affidavit.

7. Time as prayed for is allowed.

8. In the meantime, if the petitioner deposits 24,00,000/- (rupees twenty four lakhs) in two equal monthly installments i.e. installment of Rs.12,00,000/- per month starting on or before 15th October, 2022 against the impugned demand of Rs.80,34,028/-, the electricity connection of the petitioner's premises will not be disconnected. The aforesaid payment made by the petitioner shall be subject to final outcome of the writ petition. It is however observed that the petitioner will continue to pay the monthly energy bills.

9. Put up this case on 01.12.2022 under the heading "For Admission.

(ii

(Rajesh Shankar, J.) Ritesh/