Patna High Court
The South Bihar Power Distribution ... vs The State Of Bihar Deptt. Of Energy And ... on 25 March, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15623 of 2014
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The South Bihar Power Distribution Company Ltd., through its Law Officer,
having its head office at Vidyut Bhawan, Bailey Road, Patna - 800001
... ... Petitioner/s
Versus
1. The State Of Bihar Deptt. Of Energy through its Principal Secretary, New
Secretariat, P.S. Sachivalaya, District / Town Patna
2. M/s Dina Metals Ltd, a company incorporated under the provisions of the
Companies Act, 1956, having its registered office at Abdul Rahmanpur
Road, Didarganj, P.S. - Alamganj, District/Town - Patna through its Director,
Anand Kumar Sinha, son of Late Sharda Nand Prasad, resident of NTPC
Company East Ramkrishna Nagar, P.S. - Ramkrishna Nagar, Patna - 27.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : M/s Anand Kumar Ojha, Sr. Advocate
Prakash Kumar, Advocate
For the State : Ms. Neelam Kumar, AC to SC 3
Fro the Respondent No.2: M/s Suraj Samdarshi,
Vijay Shankar Tiwari
Avinash Shekhar,
Abhilasha Jha,
Simran Kumari, Advocates
CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date : 25-03-2025
1. The Writ petition has been filed for
quashing the order dated 26.02.2014 passed by the
Consumer Grievance Redressal Forum, Patna
(hereinafter referred to as 'the 'Consumer Grievance
Redressal Forum') in Registered Case No. 83 of 2013
(M/s Dina Metal Ltd. Vs. The South Bihar Power
Distribution Co. Ltd. & Ors) and to grant any other
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
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relief / reliefs for which the petitioner is found
entitled in law.
2. The brief facts extracted from the
petition are that the petitioner is a Power Distribution
Company engaged in selling electricity as a licensee.
Respondent No. 2 is a consumer of the petitioner
under the HTSS Category tariff for a steel ingot
manufacturing unit that operates electric furnaces,
located at Didarganj in the District of Patna.
3. It is contended by the petitioner that
respondent No. 2 manufactures steel ingots using
electric furnaces, which require a continuous power
supply. The respondent No. 2 applied for supply
power to its plant. Accordingly, the supply was
commenced by the petitioner-licensee on 16.10.1990
for a contract load of 1450 KVA. As the production
and furnace capacity increased, the respondent No.
2 enhanced its contract demand from time to time. It
is further contended by the petitioner that the
contract demand was enhanced on 16.02.1991 to
3000 KVA from 1450 KVA for which respondent No. 2
entered into an agreement. Similarly on 01.06.1994,
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the contract demand was further enhanced to 4500
KVA, and on 07.08.1995 it was further enhanced to
6000 KVA due to enhancement in the capacity of
furnaces.
4. It is further contended by the petitioner
that in the year 1999, a new tariff schedule for
induction furnace consumers was introduced under
Section 49 of the Electricity (Supply) Act, 1948,
effective from 01.09.1999. This re-categorized the
consumers as High Tension Specified Service (HTSS)
consumers. Clause 2 of the new tariff stipulated that
the supply would only be provided if the sanctioned
load was in accordance with the required tonnage of
the furnace, with a minimum load of 600 KVA for
every ton of furnace capacity. It was also made
mandatory that no supply would be provided for
loads below this norm.
5. It is further contended by the petitioner
that the respondent No. 2 initially submitted an
affidavit dated 04.09.1999 stating the furnace
capacity as 13 MT. However, it was later discovered
that through the report from the manufacturer and
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the Excise Department, the furnace capacities were
17.38 MT and 14.5 MT, respectively. Consequently,
the petitioner issued a show cause notice to the
respondent No. 2 regarding the furnace's capacity.
The respondent No. 2 disputed the claim and
requested a neutral body to verify the capacity.
Meanwhile, the respondent No. 2 agreed to
provisional billing at 14.5 MT until the verification
was completed. The measurement, was
subsequently carried out by I.I.T. Kanpur which
calculated the capacity of the furnace to be 16.4 MT.
Based on this verified capacity, the petitioner
requested the respondent No. 2 through a Letter
dated 09.12.1999, to sign a new agreement by
11.12.1999
, reflecting a contract demand of 9600
KVA, effective from 01.09.1999. The new agreement
was eventually signed on 15.02.2000.
6. It is further contended by the petitioner
that in partial modification of earlier notification
dated 15.03.2000 (Annexure-2), a revised tariff for
the consumers of under HTSS service was
introduced, effective from 1st April 2001 vide Tariff
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
Notification No. COM/TAR-1F- 903/2000/166/2000
dated 28.05.2001. The Clause 3 of the revised Tariff
Notification dated 28.05.2001 included a demand
charge of Rs 700 per KVA per month and an energy
charge of 120 paise per unit for HTSS consumers.
Clause 4 of the said tariff also prescribed a minimum
monthly charge of Rs 1012 per KVA of contract
demand, payable on a monthly basis, with a
guaranteed minimum supply of 630 hours per
month. If the actual supply hours were lower, the
monthly charges were adjusted, based on the actual
hours of consumption. As per clause 5 of the said
revised tariff, the demand charge as per clause-3
was to be levied on actual maximum demand
recorded in the meter during the month or 100% of
the contract demand whichever is higher. It is
contended by the petitioner that in the light of the
revised tariff, the petitioner along with all similarly
situated consumers including Respondent No. 2 are
bound to pay the energy bill as per the HTSS tariff
prepared in accordance with clauses 2, 3, 4 & 5 of
the HTSS tariff as revised effective from 01.04.2001.
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
7. It is further contended by the petitioner
that it is the case of the respondent-consumer that
although the contract demand was enhanced from
6000 KVA to 9600 KVA, still the actual maximum
demand of the respondent-consumer did not
undergo change in the past several years. However,
the petitioner-erstwhile-Board continued to bill on the
basis of minimum monthly charges instead of actual
meter readings taken every month by the Board
officers. As such in this way, the respondent was
forced to pay 30% more than its actual demand
charge every month. It is further the case of the
respondent consumer that during the months of April
and May 2002, the petitioner as per official
announcement imposed heavy load restriction on the
petitioner's factory continuously from 14.04.2002 to
23.05.2002, but the energy bills for the month of
April and May 2002 were served on the basis of
minimum monthly charge based on 9600 KVA.
8. It is submitted by the petitioner that
the respondent-consumer's claim was examined in
Letter No. 4633 dated 14.11.2002, issued by the GM-
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
cum-Chief Engineer, Patna Electric Supply
Undertaking. It was stated therein that regular
power supply was not possible due to the outage of a
100 MVA transformer at the Fatwa grid sub-station
from 22.04.2002 to 17.05.2002. As a result, the
power supply to the respondent was severely
restricted, with the available power dropping from
the required 20-25 MVA to only 11.5 to 13.5 MVA. M/s
Dina Metal Ltd.'s supply was limited to 1.5 to 3.5
MVA, against their contract demand of 9.6 MVA. The
Letter No. 4633 dated 14.11.2002 also referred
Clause 4 of the HTSS tariff, which stipulates that
minimum monthly charges are subject to minimum
assured hours of supply of 630 hours per month.
The Clause had the provision for allowing
proportionate relief to the consumers if power supply
is less than 630 hrs in a month. However, the total
hours of supply in the month of April and May 2002
were 691.5 and 681.5 hours, respectively, exceeding
the minimum stipulated hours. It is submitted that
this clause does not allow relief for restricted power
supply or to unmeet full load requirements.
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
Nevertheless, the GM-cum-Chief Engineer, Patna
Electric Supply Undertaking considered one part of
the tariff notification and suggested that the
respondent's claim for relief during this period might
be justified, without fully applying the tariff
provisions.
9. It is further submitted by the petitioner
that respondent No. 2 approached the Hon'ble Patna
High Court by filing CWJC No. 5783/2005 and claimed
that the aforesaid energy bill for the month of April
2002 and May 2002 were not justified in view of the
acceptance by the authority such as GM-cum-Chief
Engineer, Patna Electric Supply Undertaking that the
load was restricted and the petitioner was supplied
energy between 1.5 MVA to 3.5 MVA. The Writ
application dismissed vide order dated 27.06.2012
passed in CWJC No-5783/2005. The respondent No. 2
filed LPA No. 74/2013 against the order of the
Learned Single Judge. The appellate court after some
argument permitted the respondent No. 2 to
withdraw CWJC No. 5783/2005 with liberty to
approach the Consumer Grievance Redressal Forum ,
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
under Section 42 (5) of the Electricity Act, 2003 who
was directed to decide the matter in accordance with
law, without being prejudiced or influenced by the
order dated 27.06.2012. Accordingly, the the
respondent No. 2 moved before the Consumer
Grievance Redressal Forum.
10. It is submitted by the petitioner that
the Consumer Grievance Redressal Forum vide order
dated 26.02.2014 usurped the provisions of tariff and
without appreciating the same in right perspective
held the respondent-consumer was entitled for relief
on the point of non supply of adequate power for the
months of April 2002 and May 2002. It is further
submitted that the Consumer Grievance Redressal
Forum without any provision to grant remission in
view of terms and condition of Clause Nos. 3, 4 & 5
of the Tariff Notification dated 28.05.2001 formulated
an independent formula, for the grant of remission
which is not sustainable either in the light of
provisions of tariff or the terms and condition of the
agreement executed between the parties.
11. The Learned Senior counsel Sri Anand
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
Kumar Ojha for the petitioner submitted that the
Consumer Grievance Redressal Forum has not
considered Clause-4 of the Tariff Notification dated
28.05.2001, which states that a minimum monthly
charge has to be levied in terms of the contract
demand as reflected in Clause-4 of the notification
and the Board is justified in raising demand at 9600
KVA from the respondent. It is further contended on
behalf of the petitioner that the respondent No. 2 has
also entered into an agreement making a
commitment to pay the minimum contracted
demand as well as monthly charges which is
provided for not only in the tariff notified, but also in
the obligation created under the agreement.
12. The Learned Senior counsel for the
petitioner submitted that the Consumer Grievance
Redressal Forum failed to appreciate in right
perspective that the petitioner has an obligation to
provide electricity for a minimum of 630 hours per
month which has been provided and that during this
period, the supply has been over and above 630
hours. Remissions are granted if the supplies fall
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
below the minimum supply hours agreed between
the parties, but since in the present case there is no
provisions of remission for supplies made above 630
minimum hours, there is no escape for the
respondent from paying the liability created in the
terms of the demand for the bills raised.
13. The Learned Senior counsel for the
petitioner submitted that in view of the matter, the
impugned order passed by the Consumer Grievance
Redressal Forum in bad in law, as well as on the facts
of this case, and it is in the interest of the justice that
this Court may be pleased to allow this application
and quash the impugned order dated 26.02.2014 as
wholly without jurisdiction.
14. A detailed counter affidavit was filed
by respondent No. 2. It is averred in counter affidavit
that the respondent's electric supply began on
16.10.1990 with a contract demand of 1450 KVA,
which was increased over time: to 3000 KVA on
16.2.1991, thereafter to 4500 KVA on 1.6.1994, and
to 6000 KVA on 7.8.1995. It is further averred that
during the disputed period, the contract demand was
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
9600 KVA, for which an agreement which was
executed on 15.2.2000 (Annexure-4). It is contended
on behalf of the respondent No. 2 that according to
Clause 1(a) of the agreement, the licensee -
petitioner was required to provide a constant supply
of electrical energy at the specified contract
demand. The applicable HTSS tariff mandates
charges for both energy consumption and demand,
based on the contract demand (Annexure-5).
15. The Learned counsel for the
respondent No. 2 submits that it is an admitted fact
that the Fatwa Grid Sub-station supplied limited
power due to the outage of a 100 MVA power
transformer. During the period from 22.4.2002 to
17.5.2002, when the transformer was out of service,
the supply to the respondent No. 2 was severely
restricted. The chart provided by the Electrical
Superintending Engineer, PESU, clearly illustrates the
date-wise availability of power in the 33 KVA Katra
feeder, which supplies power to the respondent.
While the Katra feeder required 20-25 MVA, only
11.5-13.5 MVA was available. Of this, the power
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
allocated to the respondent No. 2 was restricted from
1.5-3.5 MVA. It is contended that this fact is evident
from Annexure-5 to the Writ application, specifically
in the Letter dated 14.11.2002 issued by the General
Manager-cum-Chief Engineer to the Financial
Controller (Revenue), requesting for consideration of
the respondent's case for proportionate remission in
demand charges.
16. The the Learned counsel for
respondent No. 2 submitted that the respondent No.
2 filed C.W.J.C. No. 5783 of 2005, challenging the
energy bill for the month of April-May 2002 due to
the reduced supply. However, the Writ was
dismissed, as there was no provision for remission if
the supply is not as per the contract. Respondent No.
2 then filed L.P.A. No. 74 of 2013. The Hon'ble
Division Bench of this Court vide order dated
18.7.2013 (Annexure 8 to the Writ petition),
considering the submissions made by the parties and
the acceptance of the petitioner that it has no
objection, if the respondent No. 2 was relegated to
the alternative remedy of the Consumer Grievances
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
Redressal Forum, the Writ application was disposed
of with a clear observation that the Forum
constituted under Section 42(5) of the Electricity Act,
2003 will decide the matter in accordance with law
without being prejudiced or influenced by the
impugned judgment and order dated 27.6.2012. The
appeal was disposed of as withdrawn, with the
aforesaid liberty.
17. Further, respondent No. 2 submits
that in furtherance of this, the answering respondent
filed a case before the Consumer Grievances
Redressal Forum under Section 42(5) of the
Electricity Act, 2003, which was registered as Case
No. 83 of 2013. The Consumer Grievances Redressal
Forum, by order dated 26.2.2014, after considering
the facts of the case and the relevant decisions
rendered by this Hon'ble Court and the Hon'ble
Supreme Court, held that the respondent No. 2 was
entitled to remission due to the failure to supply
electrical energy at the contracted demand. This
conclusion was supported by the rulings in
Raymond Limited vs. Madhya Pradesh
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
Electricity Board (2001 (1) SCC 534, paragraph
21) and Tata Iron & Steel Company vs. Bihar
State Electricity Board (AIR 1989 Patna 119,
paragraph 12). The order passed by the Forum,
which is under challenge, is contained in Annexure-1
of the Writ application.
18. The the Learned counsel for the
respondent No. 2 submits that the petitioner's
argument that the consumer cannot claim further
remission once the supply is made for 630 hours ,
which is entirely misconceived, in view of the law
established by the Hon'ble Apex Court was well as
this Hon'ble Court as the two component are distinct
in nature. Supplying energy for 24 hours and
supplying energy as per the consumer's contract
demand both are distinct. For instance, if an
industrial consumer has executed an agreement for
100 KVA to operate its industry, and the licensee fails
to supply energy at the contract demand of 100 KVA
but supplies energy for 24 hours for 30 days, at 1
kilowatt which is sufficient for lighting fan and light,
such supply this cannot be considered a supply of
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
energy in accordance with the agreement. The very
purpose of the agreement, which was to run the
industry, would be defeated. Furthermore, the tariff
clearly states that demand charges are levied at Rs.
700 per KVA, in addition to the energy charge at the
prescribed rates. More importantly, Rs. 700 per KVA
is to be applied for the actual consumption of 100%
of the contracted demand, whichever is higher.
Therefore, the tariff assumes that energy will be
supplied to the extent of 100% and even if the
consumer fails to avail energy at the contracted load,
the charges would be levied for 100%.
19. The Learned counsel for the
respondent No. 2 submits that permitting the
licensee to charge 100% of the demand, despite the
acknowledgment that the licensee failed to supply
energy at the contracted load, would result in unjust
enrichment on the part of the licensee.
20. The Learned counsel for respondent
No. 2 submits that the Consumer Grievances
Redressal Forum's reliance on Clause 4 of the
agreement, which clearly specifies that the
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
consumer's liability to pay charges is subject to the
minimum contract demand applicable for each
category, thus, the charges payable under the
"demand charge" category are contingent upon the
licensee supplying the agreed contract demand.
Furthermore, the submission in paragraph 24 of the
Writ application, which claims there is no provision
for remission, is therefore misconceived. The Forum
has addressed this issue in detail, relying on the
decisions of both the Hon'ble Apex Court and this
Hon'ble Court. Hence, the Writ petition is liable to be
dismissed on this ground alone, affirming the order
of the Consumer Grievance Redressal Forum.
21. Heard Learned Senior counsel for the
petitioner as well as the respondents and perused
the record.
22. The main cause of the dispute
between the parties since April 2002 is the mode of
billing demand raised by the petitioner for the period
from 14.04.2002 to 23.05.2002, according to
respondent No. 2. However, according to the
petitioner, the period is from 22.04.2002 to
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
17.05.2002. During this intervening period, the
power supply to the petitioner was severely
restricted, ranging from 1.5 MVA to 3.5 MVA, against
the contracted demand of 9.6 MVA. This restriction
occurred due to the outage of the 100 MVA
transformer unit installed at the 220/132/33 KV
Fatuwaha Grid Power Substation, through which the
33 KV Katra Meena Bazar feeder, supplying power to
respondent No. 2, emanates. The respondent-
consumer's feeder depends on the said Fatuwaha
Grid Substation.
23. Upon perusal of the order of the
Consumer Grievances Redressal Forum, this Court
finds that the Forum has carefully addressed the
issue in question and passed a reasoned and well-
versed order, after considering all the pleas of the
parties. The Forum has also duly examined the
decisions rendered by this Hon'ble Court, as well as
by the Hon'ble Supreme Court of India. After careful
examination of the order, this Court is of the opinion
that the Forum rightly held that respondent No. 2 is
entitled to remission due to the non-supply of
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
electrical energy at the contracted demand.
24. The Hon'ble Apex Court in Raymond
Limited (supra) observed in paragraph 21 as
follows:
"21. So far as the cases under
consideration and the liability of the
consumers relating to minimum guarantee
are concerned, the relevant clause relating to
minimum guarantee charges as well as the
tariff notification relied upon, would go to
show that what was guaranteed was not the
payment of a flat sum or amount of money to
be calculated with reference to a particular
number or percentage of units, dehors the
quantum of electrical energy distributed and
supplied by the Board. In other words, the
guarantee was of "... such minimum
consumption as when calculated at the
tariff..." will yield a particular monthly/annual
sum to the Board. Even going by the tariff
notification which prescribes also a minimum
entitling the Board to collect it [vide clause
21(b)] it merely casts liability on the
consumer to "guarantee a minimum monthly
consumption equivalent to 40% load factor of
the contract demand". Consequently, for the
consumer to honour his/its commitment so
undertaken to give a minimum consumption
there should essentially be corresponding
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
supply by the Board at least to that extent,
without which the consumption of the agreed
minimum is rendered impossible by the very
lapse of the Board. The minimum guarantee,
thus, appears to be not in terms of any fixed
or stipulated amount but in terms of merely
the energy to be consumed. The right,
therefore, of the Board to demand the
minimum guaranteed charges, by the very
terms of the language in the contract as well
as the one used in the tariff notification is
made enforceable depending upon a
corresponding duty, impliedly undertaken to
supply electrical energy at least to that
extent, and not otherwise. It is for this and
only reason we find that the ultimate
conclusion arrived at by the Full Bench of the
High Court does not call for any interference
in these appeals."
25. The Division Bench of this Court in
Tata Iron & Steel Company (supra) observed in
paragraph 12 as follows:
"12. The words 'constant supply of
electrical energy' must mean that continuous
supply of electrical energy. That to us appears
to be the plain meaning of the words used. In
the modern context where even our day to
day life is so much dependent upon supply of
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
electricity, it is not too much to expect that
the Board should supply electrical energy
throughout the 24 hours. However, having
regard to the fact that annual charges are
payable by consumers who generally require
electrical energy in larger quantities than any
ordinary domestic consumer for carrying on
his business or establishment, the annual
charges payable by him have a direct
relationship with the supply of electrical
energy to him at a time when he can consume
the supply. The minimum guaranteed
consumption itself implies that the energy is
supplied when it can be consumed. No doubt,
even beyond his normal working hours, such a
consumer requires electrical energy for other
purposes, such as security lighting etc.
However, the consumption for such purposes
is so small as compared to the main purpose
for which electrical energy is taken, that it
may be ignored in the matter of determining
the liability for annual charges. So viewed,
'constant supply' in the context of annual
charges must mean continuous supply during
the normal working hours of the consumer
when the supply can be consumed. This to us
appears to be a fair interpretation of the
agreement having regard to its purpose,
commercial nature and preacticability. We are
of the view that when the Board wants a
guarantee from the consumer about minimum
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
units it would consume, any prudent
businessman would agree to pay that amount
only if the Board fulfils its obligation. If in fact
it is found that there had not been constant
suppy of electricity at the contract demand
during the period the factory of the petitioner
was expected to work, the petitioner can
certainly claim that it is entitled to a reduction
in annual charges proportionate to the period
for which there was no supply of electrical
energy or supply as per the contract demand.
The case of TISCO is that its units at Adityapur
complex work 24 hours and electrical energy
at the contract demand is required for all 24
hours. It was urged that in this case, constant
supply must, therefore, mean constant supply
for 24 hours. On behalf of the Board it was not
stated that TISCO's units at Adityapur complex
do not work for 24 hours."
26. This conclusion aligns with the
principles laid down by the Hon'ble Apex Court in
Raymond Limited (supra) and Tata Iron & Steel
Company (supra). Accordingly, this Court concurs
with the order passed by the Forum and finds no
lacuna in the same.
27. Based on the facts and circumstances
Patna High Court CWJC No.15623 of 2014 dated 25-03-2025
stated above, this Court is of the considered view
that there is no merit in the case of the petitioner.
The Court does not find any error in the order dated
26.02.2014 (Annexure-1) passed by the Consumer
Grievance Redressal Forum. Therefore, the order of
the Consumer Grievance Redressal Forum, dated
26.02.2014, is hereby confirmed.
28. Accordingly, the Writ petition is
dismissed as devoid of merits.
29. Interlocutory Application(s), if any,
shall stand disposed of.
Spd/- (G. Anupama Chakravarthy, J)
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 16.04.2025
Transmission Date
