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M/s. Ujjwal Moldings Limited, Sabalpur, Patna City, Patna, through its Director, Vikas Kumar Kamalia v/s The Bihar State Power (Holding) Company Limited & Others


Company & Directors' Information:- BIHAR STATE POWER (HOLDING) COMPANY LIMITED [Active] CIN = U40102BR2012SGC018495

Company & Directors' Information:- B L A POWER HOLDING PRIVATE LIMITED [Active] CIN = U67190MH2008PTC179228

Company & Directors' Information:- UJJWAL LIMITED [Active] CIN = L99999DL1972PLC161883

Company & Directors' Information:- B L B HOLDING PRIVATE LIMITED [Active] CIN = U74899DL1992PTC048521

Company & Directors' Information:- D N S HOLDING PRIVATE LIMITED [Active] CIN = U74990MH2009PTC190675

Company & Directors' Information:- V B HOLDING PRIVATE LIMITED [Active] CIN = U93000DL2012PTC238276

Company & Directors' Information:- F C B HOLDING PRIVATE LIMITED [Strike Off] CIN = U74899DL1985PTC020941

Company & Directors' Information:- S K J HOLDING PVT LTD [Active] CIN = U65923WB1992PTC055761

Company & Directors' Information:- V H HOLDING PVT LTD [Strike Off] CIN = U67120MH1982PTC026260

Company & Directors' Information:- G N L HOLDING PRIVATE LIMITED [Active] CIN = U24102UP1994PTC017131

Company & Directors' Information:- A B C HOLDING PRIVATE LTD. [Active] CIN = U74899DL1987PTC028300

Company & Directors' Information:- VIKAS R & D INDIA PRIVATE LIMITED [Active] CIN = U73100DL2012PTC232875

Company & Directors' Information:- A J HOLDING COMPANY PRIVATE LIMITED [Amalgamated] CIN = U45201TN2005PTC056046

Company & Directors' Information:- P R HOLDING LTD [Strike Off] CIN = U51109WB1983PLC035677

Company & Directors' Information:- V B P HOLDING PRIVATE LIMITED [Strike Off] CIN = U67120GJ1981PTC004670

Company & Directors' Information:- A D P HOLDING PVT LTD [Strike Off] CIN = U99999GJ1981PTC004674

Company & Directors' Information:- N R P HOLDING PRIVATE LIMITED [Under Process of Striking Off] CIN = U67120GJ1981PTC004664

Company & Directors' Information:- N H P HOLDING PRIVATE LIMITED [Strike Off] CIN = U67120GJ1981PTC004671

Company & Directors' Information:- N A P HOLDING PRIVATE LIMITED [Strike Off] CIN = U67120GJ1981PTC004673

Company & Directors' Information:- UJJWAL LTD [Strike Off] CIN = U72100DL1972PLC006117

    Letters Patent Appeal No. 348 of 2017 & In Civil Writ Jurisdiction Case No. 12453 of 2008 With Interlocutory Application No. 7186 of 2017

    Decided On, 19 February 2018

    At, High Court of Judicature at Patna

    By, THE HONOURABLE CHIEF JUSTICE MR. RAJENDRA MENON & THE HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD

    For the Appellants: Suraj Samdarshi, Advocate. For the Respondents: Vinay Kirti Singh, Sr. Advocate, Vijay Kumar Verma, Akhileshwar Singh, Advocates.



Judgment Text

Rajeev Ranjan Prasad, J.

Oral:

1. Re. I.A. No. 7186 of 2017. This Interlocutory Application has been filed for condonation of delay of 1 year 8 days occurred in filing of the Letters Patent Appeal.

2. For the reasons stated in the Interlocutory Application, the delay is condoned.

3. The Interlocutory Application stands disposed of.

Re. L.P.A. No. 348 of 2017.

4. Challenging the order dated 05.05.2015 passed by the learned Writ Court in CWJC No. 12453 of 2008, the writ petitioner is in appeal before us.

5. By the impugned order the learned single Judge has refused to quash the punitive bills under challenge and took a view that the petitioner has a statutory remedy available against the said punitive bills in terms of a statutory appeal. Liberty has been granted to the petitioner to avail the statutory remedy.

6. Learned counsel representing the appellant has raised a limited argument based on the judicial pronouncement of this Court in the case of M/s. Shakti Cold Storage & Anr. v. Bihar State Electricity Board, reported in 2008 SCC On Line Pat 386 : (2011) 1 PLJR 264.

7. Learned counsel submits that earlier this Writ Application was tagged with the batch of Writ Applications, the lead case being CWJC No. 11271/2008 (M/s. Shree Shankar Cooperative Cold Storage Samiti Ltd. v. The Bihar State Electricity Board & Ors.). When the matter was taken up on 10.10.2014, this case was detached or taken out from the batch of cases only on the ground that in the present case the meter in question was sealed. Reference in this regard has been made to the order dated 10.10.2014. Learned counsel submits that in the case of M/s. Shakti Cold Storage (Supra) a learned single Judge of this Court while taking note of the provisions of the 'Supply Code', especially Clause 8.8 (Second Proviso), Clause 8.12 (e) & Clause 8.14(a)(iii) held that the non-functional meter should be sealed and sent to either the Board's Lab or an independent Lab as agreed by the consumer for testing the said meter. The learned single Judge had, therefore, vide order dated 12.08.2008 allowed the Writ Application of M/s. Shakti Cold Storage & Anr. The said order of the learned single Judge was challenged in intra-court appeal vide LPA No. 798 of 2008 which was also dismissed and then the Special Leave Petition preferred by the then Bihar State Electricity Board before the Hon'ble Apex Court failed.

8. Learned counsel has referred the order dated 16.04.2010 passed in the case of M/s. Shree Shankar Cooperative Cold Storage Samiti Ltd. in which interim order was passed in favour of the petitioners keeping the matter pending and to be taken up after disposal of the L.P.A. from the judgment of this Court in M/s. Shakti Cold Storage (Supra).

9. At this stage it is further pointed out by learned counsel for the appellant that recently in LPA No. 870/2008 (The Bihar State Electricity Board & Ors. v. M/s. J.M.D. Alloys Ltd.) which had travelled to this Court from the order passed by the learned Writ Court in CWJC No. 10139 of 2008, vide judgment dated 04.01.2018 the Hon'ble Division Bench presided over by Hon'ble the Chief Justice had occasion to discuss the judgment of this Court in M/s. Shakti Cold Storage (Supra) and the case before the Hon'ble Division Bench was distinguished holding that M/s. Shakti Cold Storage (Supra) is not attracted in the said case because in the said case the defective and non-functional meter was sealed in presence of the consumer and it was sent for examination with the seal and signature of the consumer, which was not the case in M/s. Shakti Cold Storage (Supra). It was because of this distinction that the Hon'ble Division Bench in the case of M/s. J.M.D. Alloys (Supra) held that the learned Writ Court was not justified in quashing the punitive bill raised against the petitioner in the said case.

10. Learned counsel has categorically argued that in M/s. J.M.D. Alloys (Supra) it was never argued that the meter even if sealed in presence of the consumer was not tested in the Board's Lab or in an independent Lab in terms of the judgment in the case of M/s. Shakti Cold Storage (Supra), therefore, the case of M/s. J.M.D. Alloys (Supra) cannot be applied in the facts and pleadings of the present case.

11. On the other hand learned counsel representing the respondents submits that the learned Writ Court has committed no error in relegating the petitioner back to an alternative statutory remedy.

12. We have heard learned counsel for the parties and perused the records. The only ground which has been specifically raised and pleaded on behalf of the appellant is that if the defective meter was not tested in an independent lab or the Board's lab, as has been held in the case of M/s. Shakti Cold Storage (Supra), the punitive bill raised by the respondents would be liable to be quashed.

13. In course of argument learned counsel for the respondents could not deny the facts specifically pleaded and argued on behalf of the appellant that the meter in question was not tested either in the Board's lab or in an independent lab. In absence of a denial of the specific pleading of the petitioner-appellant, we find no reason to take a different view from the view which has been taken in the case of M/s. Shakti Cold Storage (Supra) followed by the judgment in the batch of Writ Applications of M/s. Shankar Cooperative Cold Storage Samiti Ltd. (Supra). We also find that the judgment of the Hon'ble Division Bench of this Court in the case of M/s. J.M.D. Alloys (Supra) does not consider the issue raised by the appellant in the present case before us and, therefore, the same cannot be applied in the facts of

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the present case. This case would be covered by the ratio of the judgments of M/s. Shakti Cold Storage (Supra) and M/s. Shankar Cooperative Cold Storage Samiti Ltd. (Supra). 14. In these circumstances we are of the view that the order passed by the learned Writ Court in CWJC No. 12453 of 2008 relegating the writ petitioner to an alternative remedy cannot be sustained. The impugned order passed by learned Writ Court impugned is hereby set aside. Appeal is allowed. 15. The Writ Application is remitted back to the learned Writ Court for a fresh consideration in the light of the discussions made here-in-above.
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