Tata Yodogawa Limited vs Jharkhand Urja Vikas Nigam Limited ...
2024 Latest Caselaw 5628 Jhar

Jharkhand High Court

Tata Yodogawa Limited vs Jharkhand Urja Vikas Nigam Limited ... on 12 June, 2024

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay, Deepak Roshan

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        L.P.A. No. 332 of 2015
             1. Tata Yodogawa Limited, a Company incorporated
                under the provisions of Companies Act, 1956,
                through its Company Secretary Sri Prashant Kumar
             2. The Suspended Board of Directors of M/s. Tata
                Yodogawa Limited                         ......Appellants
                                     Versus
             1.Jharkhand Urja Vikas Nigam Limited (Earlier
              Known as Jharkhand State Electricity Board), Ranchi
              Through its Chairman-cum-Managing Director,
              Engineers' Bhawan, Ranchi
             2. Bihar State Electricity Board, a body constituted under the
                Indian Electricity Act, 1910, Patna, through its Chairman
             3. The Chief Engineer (Commercial and T.A), Bihar State
                Electricity Board, Bailey Road, Patna
             4. The Financial Controller (Rev.), Bihar State Electricity Board,
                Bailey Road, Patna
             5. General Manager-cum- Chief Engineer, Singhbhum Area,
                Electricity Board, Bistupur, District-Singhbhum East.
             6. The Electrical Superintending Engineer, Electric Supply
                Circle, Jamshedpur
             7. The Electrical Executive Engineer (Commercial & Revenue),
                Office of the Electrical Superintending Engineer, Electric
                Supply Circle.
             8. Insolvency Resolution Professional of Tata Yodogawa
                Limited,Jamshedpur                       ...... Respondents
                                     ----

CORAM: Hon'ble Mr. Justice Rongon Mukhopadhyay Hon'ble Mr. Justice Deepak Roshan

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For the Appellant : Mr. M.S.Mittal, Sr. Advocate Mr. Salona Mittal, Advocate For the Respondents : Mr. Mrinal Kanti Roy, G.A.-I

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C.A.V ON. 07.05.2024 PRONOUNCED ON 12/06/2024

Per Deepak Roshan,J. The instant appeal is directed against the Judgment dated 08.05.2015, passed by the Writ Court in C.W.J.C. No. 1503 of 2001 with other analogous cases; whereby the Writ Court rejected the writ application filed by the petitioner/appellant herein.

2. The brief facts, which are necessary for proper disposal of this appeal is that in exercise of power conferred by Section 49 of the Electricity (Supply) Act, 1948, the Bihar State Electricity Board (hereinafter referred to as 'The Board') framed a new tariff vide Notification dated 21.06.1993 superseding the earlier tariff Notification dated 26.08.1991

and 03.07.1992. The new notification was made effective from 01.07.1993. Subsequently, 18 months after coming into force of new tariff, the Board issued a circular on 05.01.1995 announcing 25.98 Paise per KWH as the rate of fuel surcharge retrospectively for the period July, 1993 and up to the period March, 1994.

A batch of writ petitions being C.W.J.C. No. 2771/95(R) and analogous cases came up for hearing before this Court in October 1996. The Court by its order dated 17.10.1996 constituted a High-Level Committee and directed to calculate the fuel surcharge in terms of 1993 tariff, particularly considering Clause 17 and submit its report by 31.01.1997 to the Chairman of the Board.

This notification led to a fresh batch of Writ Petitions being C.W.J.C. 1632/1997 and analogous cases wherein, under the direction of this Court, the said Committee submitted its report to this Court on 16.03.1997. The said batch of Writ Petitions were disposed of on 26.06.2000. Pursuant to the aforesaid judgment, the Respondent-Board issued a Circular No. 345 dated 11.07.2000. The Financial Controller of the Board issued a clarificatory circular directing all the Revenue Collecting Authorities of the Board that fuel surcharge was leviable on minimum guaranteed units or the units consumed, whichever is higher in respect of consumers falling in the categories of LTIS, CS-II and CS-III

The appellant has prepared a Chart in three parts viz. A, B and C showing the impact of levy of fuel surcharge on unconsumed units of LTIS, CS-II and CS-III categories of consumers.

The petitioner's representative body M/s Bihar Industries Association filed a representation before the Chairman of the Board on 17.07.2000 requesting him to announce the revised rates at the earliest annexing the detailed calculation chart. (Anenxure-6). Thereafter, Association of the Industrial Consumers in the State filed another representation before the Chairman of the Board on 21.07.2000 pointing out the obvious anomalies in the revised

rates announced by the Board. For the year 1999-2000 and onwards the Board had announced only the provisional rate of fuel surcharge by its circular dated 16.08.2000 @204.40 paise/kwh. Further, another Circular dated 17.03.2001 was issued by BSEB to its officers fixing rate of fuel surcharge for the financial year 2000-2001 at 244.01 p/Kwh.

The appellant had filed writ petition being CWJC No. 1503 of 2001 along with an application for interim relief and the petitioner deposited 50% of the said Bill amounting to Rs.41,82,761.50 Paise pursuant to the order of the Court dated 17.04.2001. Though, initially the appellant company fell under the category of HTS Consumer but there was a dispute between the appellant and the Board as to whether the appellant falls under the HTS or HTSS category and there was litigation going on between the appellant and the board and ultimately this Court vide its judgment passed in CWJC No. 852 of 2000 (R) held that the appellant would fall under the HTSS category.

The batch of these writ petition were earlier taken up by this Court including that of the petitioner was taken up by the learned Single Judge and by Judgment dated 30.03.2001, various issues were decided and various observations were given but however in view of the fact that the matter was pending before the Hon'ble Supreme Court, the petitioner's petition was not allowed, inasmuch as, this Court was pleased to hold that no relief so far this case is concerned, can be granted as the Judgment, if any, in these cases, will be never reach finality as the impugned letters and decisions being subject matter of the Special Leave Petition.

The appellant challenged the said Judgment before the Division Bench of this Court and the Division Bench set aside the order passed by the Writ Court and directed the Writ Court to rehear the parties considering the aforesaid observation. It was also recorded in paragraph-9 that the parties undertake not to seek any adjournments on any date on any grounds whatsoever before the learned Single Judge.

Pursuant thereto; the Writ Court, after hearing the parties, has rejected the writ petition vide Judgment dated 08.05.2015, passed in C.W.J.C. No. 1503 of 2001 in the appellant's case along with other analogous cases.

3. At the outset, Mr. M.S.Mittal, learned Sr. counsel draws attention of this Court towards the order dated 18th May, 2023 passed in this appeal and submits that he has been allowed to address this Court only on the question of law involved in this appeal; as such he would be confining his entire arguments on the question of law.

4. Learned Sr. counsel further draws attention of this Court towards Annexure-9 which is the Circular of Respondent-Board indicating the rate of fuel surcharge for the Financial Year 2000-01 and by referring the said circular he submits that Clause 5 of the said circular clearly indicates that the rate of fuel surcharge is not applicable to Induction Furnace Owning Consumers reclassified as High Tension Specified Services Consumers (HTSS).

He further submits that the said circular of the Board is notifying a separate Schedule of Fuel Surcharge Rate for these consumers, but no such circular was ever issued. The rate of fuel surcharge i.e., Rs. 244.01 Paise per Unit continued even after March, 2001 and since no separate schedule was issued, no fuel surcharge rate was ever fixed for these consumers.

Relying upon the aforesaid circular, he submits that it is an admitted fact that the appellant is a HTSS Consumer and as such as per Clause 5 of circular, appellant would not be liable to pay fuel surcharge and shall also be liable for refund of the amount already realized.

5. Mr. Mrinal Kanti Roy, learned counsel appearing for the Respondent-JUVNL submits that so far as the prayer made in the original writ application was with respect to quashing of the circular and since the same has been implemented, now the circular cannot be reversed. However, Mr. Roy fairly admits that no separate schedule of fuel surcharge rate has been given by the Respondent-Board as stipulated in Clause 5

of the Circular of March, 2001; however, he submits that the matter may be remitted back to the authority concerned to look into the matter and calculate the tariff as per the law applicable in the concerned period.

6. Having heard learned counsel for the rival parties and after going through the documents annexed with the memo of appeal, it appears that the prayer originally made in the writ petition was for setting aside the Circular No. 78 dated 17.03.2001 (Annexure-9) issued by the Chief Engineer (Commercial), Bihar State Electricity Board fixing rate of fuel surcharge for the year 2000-01 (1.4.2000) onwards @ Rs. 244.01 Paise per unit.

The appellant had also prayed for quashing of the supplementary bill dated 30.03.2001 (Annexure-10) raised by Jharkhand State Electricity Board by which a demand of Rs. 83,65,523/- was raised from the petitioner-appellant on account of differential amount of fuel surcharge.

From perusal of records, it is evident that in terms of the provisions of 1993 tariff, the Board has issued Circular No. 345, dated 11.07.2000, by which rate of fuel surcharge for the Financial Years 1996-97, 1997-98 and 1998-999 was fixed. Later on, the Board issued another Circular no. 428, dated 16.08.2000 by which the rate of fuel surcharge for the period 1999-2000 was fixed. Lastly, the Board issued another Circular No. 78, dated 17.03.2001 by which the BSEB had fixed the rate of fuel surcharge from 01.04.2000 onwards.

The present appeal arises out of C.W.J.C. No. 1503 of 2001 wherein this Circular No. 78, dated 17.03.2001 was challenged which was effective from 01.04.2000. However, in the year 1999, a special schedule was added to 1993 tariff which was known as the new induction furnace tariff (HTSS) which was issued for consumers having induction furnace. The same was added as a new schedule to the 1993 tariff and it was subjected to much higher rates vis-a-vis the consumer falling within HTS Category.

Keeping that view in the mind, the impugned Circular no. 78, dated 17.03.2001 was issued. The following important Clauses were incorporated in the said Circular:

"5. This rate of Fuel Surcharge is not applicable to those Induction Furnace Owning Consumers reclassified as High Tension Specified Services Consumers, for whom a separate Schedule of Tariff was notified vide Notification no. 903/2000/ 122 dated 15.03.2000. However, for these consumers, the Board is notifying a separate Schedule of Fuel Surcharge Rate."

The Division Bench of this Court in L.P.A No. 217 of 2013 vide Judgment dated 07.09.2022 has held that the Judgment passed in C.W.J.C. No. 852/2000 (R) is good in law and the petitioner falls within the HTSS Category of consumer and does not fall within the HTS Category of consumer. Consequently, for the HTSS Category of consumer; which the appellant belongs, Clause 5 of the impugned Circular dated 17.03.2001 which is Annexure-9 will be applicable. This Circular No. 78, dated 17 March, 2001 is for the financial year 2000-01 and applicable from 01.04.2000 onwards.

Accordingly, we hold that since the rate of fuel surcharge is not applicable to Induction Furnace owning consumers reclassified as High Tension Specified Service Consumer (HTSS) and as per Clause-5, the Board was to notify a separate schedule of fuel surcharge rate for these consumers but, admittedly; no such circular was ever issued, the appellant would not be liable to pay fuel surcharge. At the cost of repetition, since no separate schedule was issued and no fuel surcharge rate was ever fixed for these HTSS consumers; the rate of fuel surcharge i.e., Rs. 244.10 Paise per Unit raised / continued by the respondent Board even after March, 2001; is beyond jurisdiction, and, is hereby, quashed and set-aside.

From the records, it also transpires that the Board had raised a Supplementary Bill (Annexure 10), during this period and the appellant had paid 50% of the same under the

Court's order (Annexure- 12) and since the Division Bench of this Court has already held that the appellant is a HTSS Consumer then the appellant would not be liable to pay fuel surcharge and shall be liable to a refund of the amount already realized.

Accordingly, the instant appeal is allowed. The Respondent Board is directed to recalculate the bill of the appellant and refund the amount which has already been paid to it by the appellant pursuant to the interim direction of this Court. It goes without saying that the entire exercise shall be completed by the respondent Board within a period of twelve weeks from the date of receipt/production of this order.

As a result, the instant appeal is disposed of in the manner indicated herein above.

(Rongon Mukhopadhyay, J.)

(Deepak Roshan, J.) Jharkhand High Court Dated 12/06/ 2024 jk/AFR