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Piyush Industries v/s Paschim Gujarat Vij Co. Ltd. & Another

    Special Civil Application No. 5182 of 2002

    Decided On, 06 February 2013

    At, High Court of Gujarat At Ahmedabad


    For the Petitioner: Ketan D. Shah, Advocate. For the Respondents: Ms. R.V. Acharya, Advocate.

Judgment Text

Oral Judgment:

1. The petitioner, by this petition, has prayed for appropriate writ to quash and set aside the letter dated 6.5.2002, whereby the bill dated 3.5.2002 has been issued to the petitioner for recovery of Rs.38,430/- and it is prayed by the petitioner to direct respondent to refund the amount of Rs.17,125/-, which was paid pending the dispute against the said bill and the prayer is made to direct the respondent to refund the amount with interest at the rate of 24% per annum. It has been stated that pending the petition, the unpaid amount has already been recovered and, therefore, an additional prayer is made by way of amendment, for the refund of Rs.25,904/-.

2. The short facts of the case appears to be that the petitioner is having electricity connection of the then Electricity Board, now the Electricity Company, bearing No.34201/50237/6. The petitioner is having the unit, which is a seasonal unit and it is having connection of 65HP. As per the petitioner, on 4.12.2000, the petitioner intimated to the respondent Board that they are desirous to take benefit of non-use for the year 2001 and, therefore, the form, if any, is to be filled in, the same may be supplied to the petitioner. Immediately, after 10 days, on 14.12.2000, the petitioner intimated the respondent that for the whole year 2001, the petitioner is desirous to keep the unit closed and, therefore, the same may be put as ‘non-use’ and it may be continued until the next application and as and when, the petitioner is desirous to have the electricity power, the same shall be intimated.

3. It appears that acting on the said communication, the respondent issued bill in the month of January – February 2001, without charging any minimum amount. However, subsequently, vide letter dated 6.5.2002 – Annexure-A (wherein the date is not mentioned, but the learned Counsel appearing for both the sides confirm that the date is 6.5.2002 and by typographical omission, the date has not been mentioned), the petitioner was called upon to pay the minimum charge for the period from January to August 2001 and also for September, 2001, amounting to Rs.38,430/- and simultaneously, the bill is also issued for the said amount. It is under these circumstances, the present petition. It may also be recorded that it has been confirmed by the learned Counsel appearing for both the sides that the year mentioned in the letter for chargeability period of 2001 and not of 2002, but there is a typographical error.

4. I have heard Mr.Ketan Shah, learned Counsel appearing for the petitioner and Ms.Acharya, learned Counsel for the respondent.

5. As such on the aspect of intimation given by the petitioner, vide letter dated 4.12.2000 at Annexure-J and the letter dated 14.12.2000 at Annexure-K, there is no dispute. Therefore, it can be said that the petitioner intimated in time for taking benefit of the seasons and it was specifically intimated by the petitioner that the connection, as it is already disconnected, be continued by conferring the benefit for the whole year 2001. The respondents have also acted upon the same, inasmuch as the bills have been issued for the year January 2001 and February 2001, without charging the minimum charge. Thereafter, it appears that in the year 2002, the decision is taken to collect the minimum charge for the period from January 2001 to August 2001 and pursuant thereto, the communication dated 6.5.2002 for the recovery of the amount of Rs.38,430/- and the bill accordingly.

6. The only question to be considered in the present petition is whether the respondent Board is entitled to recover the minimum charge/bill in a case where the power has remained disconnected and the consumer has already intimated for conferring benefits of seasons by intimation that the consumer is not desirous to get the reconnection for the supply of the electricity power.

7. The contention was raised on behalf of the petitioner that since the petitioner had already intimated and the connection has remained disconnected, the respondent would not be entitled to collect minimum charge on the basis of connected load, though in fact, not connected.

8. Whereas, on behalf of the respondent, it has been submitted that the application was not made in the prescribed format and, therefore, the Board would be justified in recovering the minimum charge/bill for the respective periods.

9. In order to appreciate the contentions the conditions of supply, copy whereof is produced with the affidavit of Shri J.B. Parekh dated 9.7.2002, deserve to be considered. Such condition provides that the seasonal consumer is entitled to the benefit of the tariff if the consumer has declared the period of ‘off season’ every year, but such information has to be given well in advance in the beginning of the year.

Condition D(ii)(g) expressly provides as under:-

'(g) The electricity bills relate to the offseason period shall not be taken into account towards the amount payable against the annual minimum bill. The amount paid by the consumer towards the electricity bills related to the seasonal period only under the heads of 'Fixed Charges' and 'Energy Charges' shall be taken into account while determining the amount of shortfall payable towards the annual minimum bill as specified under sub-clause (d) hereof.'

(Emphasis supplied)

Sub-clause (d) refers to the total minimum amount under the heads of 'Fixed Charges' and 'Energy Charges' but not for a minimum bill or the minimum charge. As per condition No.4.1.4 the minimum bill per installation, which in the popular language, known as ‘minimum charge’ is provided as Rs.100 per BHP in a case where contracted load is up to 75 BHP, which is in the present case. The charges under the head of ‘Energy Charge’ is separate altogether, which is 300 paise per unit and 375 paise per unit in the respective categories of up to 10 BHP and exceeding 10 BHP. It is in light of the aforesaid condition, the matter is further to be examined.

10. The facts of the present case clearly go to show that the minimum charge would not be applicable if the consumer covered under the category of seasonal consumer would intimate well in advance, prior to the beginning of the year by specifying the month during which he wants to take benefit in the next ensuing year. In the present case, such intimation was given by letter dated 4.12.2000 read with the letter dated 14.12.2000 for the whole of the year of 2001. Not only that but the same is acted upon by the then Board for the months of January and February 2001. Thereafter, similarly arrangement was required to be continued until an intimation was given by the consumer to get back the connection or to have the electricity power by reconnection. Such has in the present case happened only in September 2001. The chargeability of the amount after September 2001 till December 2001 is as per the bills issued by the electricity company is not in dispute and the said aspect is not the subject matter of the present petition, therefore, no discussion is required in this regard. The subject matter of the petition is related to the period from January 2001 to August 2001 and the recovery is also sought to be affected for such period.

11. If there was no chargeability of minimum charge or minimum bill as per the language used in the conditions of supply, the Board could not charge or collect minimum bill on the basis of the connected load. Even otherwise also if the matter is independently considered, then the Board or the Electricity Company would be entitled to collect minimum bill or minimum charge only if the electricity supply has been connected and not in a case where the electricity supply has remained disconnected for the respective period.

12. Therefore, in the present case the connection remained disconnected for the respective period. Hence, the electricity company could not recover the minimum charge/minimum bill for the period from January 2001 to August 2001. Consequently, the recovery cannot be sustained in the eye of law.

13. It was submitted by the learned Counsel appearing for the petitioner that the amount is already collected and, therefore, the refund may be ordered and he also submitted that the Electricity Board is charging 24% p.a., from the consumer for the unpaid amount and the refund may be ordered accordingly.

14. In my view, when there is no express condition for availability of the interest, such aspect can be considered at the most on compensatory basis at the rate of 8% per annum. There was dispute on the aspect of the amount already paid pending the petition inasmuch as per the petitioner the amount pursuant to the interim order has been paid by the petitioner, whereas as per the

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respondent, the amount is still outstanding. In my view, such aspect would be required to be considered after verifying the record and if the refund is to be given, then only the question would arise for availability of interest at the rate of 8% per annum from the date of appointment until refund to the petitioner. 15. In view of the aforesaid observations and discussion, the impugned communication at Annexure-A and the bill at Annexure-B for Rs.38,430/- are quashed and set aside with the direction that if the amount is actually recovered or paid or deposited by the petitioner, the same shall be refunded with the interest at the rate of 8% per annum to the petitioner. The aforesaid exercise shall be completed within a period of two months from the date of receipt of the order of this Court. 16. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.