Ms Rani Sati Rice Mills through Its Proprietor Mukesh Kumar Gaddhyan v. the State of Jharkhand

Jharkhand HC23 Nov 2022Cont.(Cvl)/495/2020

Case brief

AI extract

What is this about?

In a contempt case, the Court held that while the contemnor substantially complied with the bill revision direction, the failure to restore electricity supply warrants an administrative inquiry to fix accountability rather than imposing penalty.

What did the court decide?

Enquiry ordered to be conducted by the Secretary, Energy, State of Jharkhand to fix accountability.

Ms Rani Sati Rice Mills through Its Proprietor Mukesh… — Contempt of Court | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Contempt Case (Civil) No. 495 of 2020

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M/s RANI SATI RICE MILLS, through its Proprietor Mukesh Kumar Gaddhyan, son of Late Kailash Nath Gaddhyan, aged about 44 years, resident of Jamtara, P.O. & P.S. – Jamtara, District-Jamtara, Jharkhand.

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… … Petitioner/ Appellant

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Versus

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1.State of Jharkhand.

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2.Smt. Vandana Dadel, Jharkhand Bijli Vikas Nigam Limited, having its office at Engineers’ Bhawan, HEC, Dhurwa, P.O. & P.S. Dhurwa, District – Ranchi, through its Chairman cum Managing Director, having its office at Engineers’ Bhawan, HEC, Dhurwa, P.O. & P.S. – Dhurwa, District-Ranchi.

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3.Mr. Harendra Singh, the General Manager-cum-Chief Engineer, Electrical Supply Circle, JBVNL, Dumka, P.O. and P.S. Dumka, District – Dumka.

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4.Mr. Deepak Kumar, the Electrical Superintending Engineer, Electrical Supply Circle, JBVNL, Dumka, P.O. and P.S. Dumka, District-Dumka.

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5.Mr. Indrajit Hembram, the Electrical Executive Engineer, Electrical Supply Division, JBVNL, Jamtara, P.O. and P.S. Jamtara, District-Jamtara.

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6.Avinash Kumar, Chairman-cum-Managing Director, Jharkhand Bijli Vitran Nigam Limited, having its office at Engineers’ Bhawan, HEC Dhurwa, P.O. + P.S. Dhurwa, Dist-Ranchi.

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7.Gopal Chandra Sheet, the Electrical Superintending Engineer, Electrical Supply Circle, JBVNL, Dumka, P.O + PS- Dumka, Dist-Dumka.

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… Opp. Parties/Respondent

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CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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-----For the Petitioner : Mr. M.S. Mittal, Sr. Advocate Mr. Salona Mittal, Advocate For the State : AC to AG For the JBVNL : Mr. Rajiv Ranjan, Sr. Advocate. Mr. Sachin Kumar, Advocate -------

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ORAL JUDGMENT Order No. 16: Dated 23^rd November, 2022

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The instant application has been filed under Sections 11 and 12 of the Contempt of Courts Act for initiating appropriate contempt proceeding against the opposite parties for willful disobedience of order dated 01.05.2019 passed by the Division Bench of this Court in L.P.A. No. 150 of 2017. 2. The facts of the case, in brief, is that the petitionerappellant, engaged in manufacturing and processing of rice, took an electrical connection from Jharkhand State Electricity Board (now Jharkhand Urja Vikas Nigam Limited) with the sanctioned load of 40 H.P. on Low Tension Scheme for the rice mill from a 100 K.V.A. transformer in the year 1999 and accordingly an agreement was entered in between the parties on 3^rd April, 2000 under Low Tension Industrial Service (in short ‘L.T.I.S.’) Tariff. Thereafter, an additional load of 15 H.P. was sanctioned on 1^st March, 2005 which was later enhanced time to time up-to 103 H.P. as on 21^st April, 2010 for which agreement was executed between the parties.

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The case of the petitioner-appellant is that till February, 2014, the respondents were raising bill under Low Tension Tariff but all of a sudden from March, 2014

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bill was raised under High Tension Tariff and the consumer number was also changed without following the due process of law and without execution of agreement for supply of power under High Tension Tariff.

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Aggrieved thereof, the petitioner-appellant approached the respondents-authorities to raise the bill as per L.T.I.S. tariff as there was no agreement executed under H.T. tariff, whereupon the respondentsauthorities vide memo no.477 dated 5^th March, 2014 informed the petitioner-appellant that during inspection the load of the premises was found to be 220 H.P. against the sanctioned load of 103 H.P., as such the appellant was directed to take appropriate steps for conversion into H.T. agreement. However, the appellant questioned the manner of inspection stating that defective and broken machines lying within the campus of the factory were included for determination of load which was assessed to 220 H.P. instead of 103 H.P.

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Thereafter, the respondent no.3 informed the appellant that the tariff has been converted to H.T. tariff and accordingly a legal notice was served upon the petitioner on 21^st December, 2015 to deposit a sum of Rs.7,59,035/- failing which a certificate proceeding

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would be initiated against the petitioner-appellant. According to petitioner-appellant, the notice was issued without following the procedure laid down under Section 126 of the Electricity Act. Thereafter, the petitionerappellant approached Electrical Executive Engineer, Electric Supply Division, J.B.V.N.L., Dumka making a request for payment in installments as its electrical line was disconnected since February, 2015. However, when the request for payment in installment was not accepted the appellant paid Rs.50,000/- on 26^th May, 2016. The respondents admitted that the electrical connection of appellant is disconnected against dues of Rs.3,55,305/Since the electrical line was disconnected due to unilateral conversion of L.T. tariff into H.T. tariff by the respondent, the petitioner-appellant started using D.G. set and steam vapour engine for running the rice mill. The respondent-JUVNL lodged an F.I.R. on 27^th January, 2017 against the petitioner-appellant for theft of electricity to the tune of Rs.69,09,786/- as per H.T. tariff.

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3. Being aggrieved, the petitioner-appellant approached writ court for the following reliefs:-

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“(a)Seeking restoration of its electricity connection.

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(b) Quashing of illegal assessment of Rs.69,09,786/- in Jamtara P.S. case no.13/2017.

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(c) For issuance of show cause upon the respondents as to how L.T.I.S. connection of the petitioner has been unilaterally converted into H.T. tariff without following the due procedure.

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(d) Directing the respondents to revise the bill from March, 2014 under the L.T.I.S. tariff.

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(e) For quashing the load inspection report dated 08.02.2014 where under it has been determined as 220 H.P. instead of 103 H.P.

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(f) For allowing the petitioner to use diesel generator set and steam power engine to run the rice mill till the electrical line of the petitioner is restored.”

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4. The learned Single Judge, after hearing learned counsel for the parties, disposed of the writ petition vide order dated 28.02.2017, the relevant paragraphs is quoted hereunder:

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“8. In such circumstances, at this stage, this Court is of the view that the Respondent should serve upon the petitioner the assessment order and the supplementary Bill within a period of two weeks in terms of Clause 11.9.

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9. The consequence which follow in case of institution of an FIR on allegation of theft of electricity, have been laid down in the judgment rendered by the Learned Division Bench of this Court in the case of M/s Shyamlal Iron and Steel Vrs. Jharkhand State Electricity Board reported in 2013(3) JLJR 435 . It is up to the petitioner to liquidate the liability arising out of such assessment or to wait for the outcome of the criminal case pending before the Special Court.

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10. With these observations, writ petition stands disposed of.”

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5. Being aggrieved with the order passed by learned Single Judge, the petitioner-appellant preferred intra-

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court appeal being L.P.A. No. 150 of 2017. The Division Bench, after appreciating the argument advanced by learned counsel for the parties, quashed and set aside the order passed by learned Single Judge and disposed of the appeal vide order dated 1^st May, 2019 with a direction to the respondent-Board to raise fresh final bill under LTIS tariff and adjust the same from the amount already deposited by the appellant and directed to restore the electricity supply of the petitioner-appellant within a period of two weeks from the date of communication of the order.

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For ready reference, the relevant paragraphs of the judgment passed by Division Bench in L.P.A. No. 150 of 2017 is quoted hereunder as:

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“7. In these circumstances, we are unable to accept the arguments advanced on behalf of respondents about deemed conversion from L.T.I.S. to H.T.I.S. in the backdrop of the fact that no dedicated transformer for this consumer was provided nor any wiring and installation of requisite switch breakers necessary for H.T.I.S. consumers were installed. The respondent had repeatedly asked for final bill under L.T.I.S. but the same was not raised and the Board insisted for payment of bill which was raised on the basis of H.T.I.S. The request for payment in installment cannot be treated as acceptance of liability under H.T.I.S. by the appellant while the Board has issued it without following the provisions meant for H.T.I.S. consumer. No provision of law or any applicable code has been cited before us on behalf of the electricity company under which such unilateral or automatic

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migration of a low tension consumer to a high tension one can take place.

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8. Therefore, we are of the considered view, that the matter be remanded to the respondent-Board for raising fresh final bill under L.T.I.S. tariff and the same would be adjusted from the amount already deposited by the appellant. This shall not preclude the electricity company from exercising its right or power to convert the character of the appellant consumer from a low tension one to a high tension consumer upon following due course specified in law.

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9. We are not inclined to interfere in the matter of quashing of F.I.R. relating to theft of electricity, as the competent court would arrive at a final decision in the matter.

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10. In the result, instant appeal is disposed of. The order of the learned First Court is set aside. The bills raised since March, 2014 treating the appellant as H.T.I.S. consumer as well as penalty imposed are also set aside. The matter is remanded to the respondent-Board for raising fresh final bill under L.T.I.S. tariff and the same would be adjusted from the amount already deposited by the appellant. Rest amount shall remain with respondent-company, which could be adjusted against future bills or otherwise on the direction of the court of Special Judge, Jamtara dealing with matter of electricity. We further direct immediate restoration of supply of electricity to the appellant within two weeks from the date of communication of this judgment and order.

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11. It was argued on behalf of respondent that the appellant is not executing agreement under H.T.I.S. tariff. In this situation, we would like to clarify that if the appellant prefers to have H.T.I.S. connection then agreement between the parties could be executed afresh in future after following and observing due process relating to supply of electricity to the High Tension Consumer. If the appellant denies to execute such agreement, it shall be open to the respondents to take such steps as may be permissible under the law.”

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6. Learned counsel for the petitioner-appellant has submitted that even though the Division Bench of this Court while disposing of the appeal has specifically directed the respondents-Nigam to restore the electricity supply to the appellant within a period of two weeks from the date of communication of the order, which was communicated to the respondent-Nigam on 12.06.2019 but even after expiry of two weeks, electricity connection was not restored.

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It is further case of the petitioner-appellant that in spite of the order being passed by the Division Bench of this Court in L.P.A. No. 150 of 2017 as also request made by the petitioner-appellants vide several letters neither revised bills on the basis of Low Tension Tariff was raised nor the electricity connection within the stipulated period of two weeks was restored.

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In the backdrop of these facts, contempt proceeding has been filed against the opposite parties for willful disobedience of order dated 01.05.2019 passed by the Division Bench of this Court in L.P.A. No. 150 of 2017.

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It has been contended that due to non-compliance of the order passed by the Division Bench of this Court in L.P.A. No. 150 of 2017 by respondents-Nigam to

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restore electricity supply the industry of the petitioner itself was closed which caused irreparable loss to the petitioner.

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Learned counsel for the petitioner-appellant further submits that Opp. Parties moved before Hon’ble Supreme Court by filing Special Leave Petition (Civil) Diary No. (s) 10100/2021, which was dismissed vide order dated 09.07.2021 but even thereafter the order passed by the Division Bench of this Court has not been acted upon.

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Therefore, it is a fit case where the appropriate proceeding as per the provisions of Contempt of Court Act be initiated against the respondents-Nigam. 7. The matter has been heard by this Court on several occasion and affidavit by way of show cause has been filed by Opp. Parties but when the order passed by the Division Bench of this Court has not been complied with, this Court vide order dated 16.11.2022 directed for personal appearance of Chairman-cum-Managing Director, Jharkhand Bijli Vitran Nigan Limited on the next date of hearing i.e., on 23.11.2022 (today).

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In pursuance thereto, Mr. Avinash Kumar, Chairman-cum-Managing Director, Jharkhand Bijli Vitran Nigan Limited appeared in person.

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Today, one supplementary show cause has been filed in Court, which is taken on record wherein averment has been made that in compliance of the order passed by the Court Division Bench of this Court in L.P.A. No. 150 of 2017, the bill has been revised and the revised bill has been issued on 16.11.2022. It has been stated that in terms of the revised a sum of Rs. 23,62,188/- is refundable to the petitioner to settle the billing dispute at rest and as such a cheque being Cheque No. 514314 dated 21.11.2022 drawn on State Bank of India, Dumka Bazar Branch for Rs. 23,62,188/is ready to be handed over to the petitioner. However, the Opp. Parties have tendered unconditional and unqualified apology for inconvenience caused, if any.

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8. Mr. M.S. Mittal, learned senior counsel for the petitioner-appellant however has accepted the cheque in original for its onward transmission in favour of petitioner, but, it has been submitted merely submitting a cheque amounting to Rs. 23,62,188/- cannot be said to be compliance of the order passed by this Court in its letter and spirit since the electricity connection which was to be restored within two weeks from the date of communication of the order passed by this Court has not been restored and since that part of the order has

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not been complied with as such Opposite Parties are in contempt.

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It has been submitted that so far as billing dispute is concerned for which a cheque of Rs. 23,62,188/- has been handed over that is first part of the order by issuing a direction upon the respondents to issue revised bill after the bill having been quashed and set aside and as such whatever amount is now being paid by way of cheque no. 514314 dated 21.11.2022 can be said to be compliance of the order pertaining to the amount of the bills. But so far as the restoration of the electricity connection is concerned which was directed to be restored within a period of two weeks from the date of communication of the order the same admittedly has not been complied with, therefore, the Opp. Parties are liable to be proceeded for contempt.

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9. Mr. Rajiv Ranjan, learned senior counsel for the respondent-Nigam has submitted that there is no dispute that there are two-fold direction in order passed by the Division Bench of this Court in L.P.A No. 150 of 2017.

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The first one is in consequence of quashing of bill raised as per High Tension tariff to raise final bill as per L.T.I.S (Low Tension) tariff adjusting he amount already

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deposited by the appellant as per HTIS tariff. In this regard, it has been submitted that a cheque amounting to Rs. 23,62,188/- has been paid in favour of petitioner for the purpose of resolving the issue.

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So far, second part of direction, by which direction has been passed for restoration of electricity supply to the appellant within two weeks from the date of communication of order passed by the Court, is concerned submission has been made that the same at the moment cannot be restored since the petitioner is not in requirement of the power supply as the industry, as per submission of the petitioner himself, is closed now. Therefore, at this stage, there is no occasion for the Opposite Parties to supply electricity connection.

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10 . This Court has heard learned counsel for the parties and considered the order passed by the Division Bench of this Court in L.P.A. No. 150 of 2017, which is the subject matter of instant contempt case.

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It is not in dispute that the order dated 01.05.2019 passed in L.P.A. No. 150 of 2017 is having two-fold directions; (i).the bills raised since March, 2014 treating the appellant as HTIS consumer as well as penalty imposed were quashed and set aside and the matter was remanded to the respondent-Nigam for raising fresh

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final bill under LTIS tariff and; (ii).to immediately restore the supply of electricity to the appellant within two weeks from the date of communication of the order.

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It is, thus, evident that the direction so far it relates to issuance of fresh revised bill is concerned, the same has been complied with and after making adjustment a sum of Rs. 23,62,188/- a cheque has been handed over to learned senior counsel for the petitioner in the Court today itself for its onward transmission to the petitioner.

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11 . At this juncture, learned senior counsel for the Opp. Parties has submitted that whatever amount is being paid by way of cheque No. 514314 dated 21.11.2022 that is the subject matter of amount pertaining to criminal case. However, in the criminal case, the petitioner has been acquitted but against the order of acquittal, revision case has been filed.

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12 . Be that as it may, the fact remains that the subject

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matter of instant contempt case is order dated 01.05.2019 passed in L.P.A. No. 150 of 2017, which contains two-fold directions, as referred hereinabove. The first part of the order has been complied with by handing over the cheque no. 514314 dated 21.11.2022 amounting to Rs. 23,62,188/- to the learned counsel for

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the petitioner for its onward transmission to the petitioner but so far as the second part of the order, which pertains to supply of electricity within two weeks from the date of communication of order dated 01.05.2019 in L.P.A. No. 150 of 2017, is concerned this Court is of the view that the same though was communicated to the respondents-Nigam on 12.06.2019 but the electricity connection was not restored within the stipulated period, therefore, action of the authority in not complying the order cannot be taken lightly and therefore, this Court is constrained to hold the action of the authority who were in helm of the affairs during the relevant time i.e., when the order was passed by the Division Bench in L.P.A. No. 150 of 2017 was communicated but there was no compliance of the order by restoring the electricity connection within the stipulated period of time. Further, the S.L.P. was not filed within time rather it has been filed after about two years the order has been passed by Division Bench of this Court in L.P.A. No. 150 of 2017 and after filing of the contempt proceeding, though the said SLP was dismissed by Hon’ble Supreme Court vide order dated 09.07.2021.

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13 . At this juncture, learned senior counsel for the respondents-Nigam has submitted that at this stage the direction pertaining to restoration of electricity supply cannot be complied since as per averment made by the petitioner, the industries itself has now been closed.

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14 . Mr. M.S. Mittal, learned senior counsel appearing for the petitioner has submitted that due to non-supply of the electricity even after order being passed by the Division Bench long back on 01.05.2019, the industry of the petitioner-appellant has been closed.

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15 . This Court, taking into consideration the fact in entirety and more particularly the direction passed by this Court dated 01.05.2019 in L.P.A. No. 150 of 2017, is of the view that the authority of the respondentsNigam has come in the way of order passed by this Court.

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But the question which requires to be considered is as to whether in the facts of the case it is a fit case to initiate proceeding under Contempt of Courts Act when there is substantial compliance of the order passed by the Court as in the case in hand a cheque amounting to Rs.23,62,188/- has been handed over to learned senior counsel for the petitioner for its onward transmission to the petitioner for adjustment of the bill, as directed by

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this Court vide order dated 01.05.2019 passed in L.P.A. No. 150 of 2017.

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The position of law is well settled, as has been held by Hon’ble Apex Court in the judgment rendered in Bihar State Government Secondary School Teachers Assoiation Vs. Ashok Kumar Sinha & Ors [(2014) 7 SCC 416] that in contempt proceedings, the Court is supposed to adopt cautionary approach which would mean that if there is substantial compliance with the directions given in the judgment.

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For ready reference, the relevant paragraph of the judgment is quoted as under:

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“24. At the outset, we may observe that we are conscious of the limits within which we can undertake the scrutiny of the steps taken by the respondents, in these contempt proceedings. The Court is supposed to adopt cautionary approach which would mean that if there is a substantial compliance with the directions given in the judgment, this Court is not supposed to go into the nitty-gritty of the various measures taken by the respondents. It is also correct that only if there is wilful and contumacious disobedience of the orders, that the Court would take cognizance. Even when there are two equally consistent possibilities open to the Court, case of contempt is not made out. At the same time, it is permissible for the Court to examine as to whether the steps taken to purportedly comply with the directions of the judgment are in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued. We can certainly go into the issue as to whether the Government took certain steps in order to implement the directions of this Court and thereafter withdrew those

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measures and whether it amounts to non-implementation. Limited inquiry from the aforesaid perspective, into the provisions of the 2014 Rules can also be undertaken to find out as to whether those provisions amount to nullifying the effect of the very merger of BSES with BES. As all these aspects have a direct co-relation with the issue as to whether the directions are implemented or not. We are, thus, of the opinion that this Court can indulge in this limited scrutiny as to whether provisions made in the 2014 Rules frustrate the effect of the judgment and attempt is to achieve those results which were the arguments raised by the respondents at the time of hearing of CAs Nos. 8226-27 of 2012 but rejected by this Court. To put it otherwise, we can certainly examine as to whether the 2014 Rules are made to implement the judgment or these Rules in effect nullify the result of merger of the two cadres.”

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16 . This Court, considering the position of law as has been settled in the cited hereinabove, is of the view that since the order passed by the Division Bench has substantially been complied with, therefore, it is not a fit case to initiate proceeding under the Court of Contempt Act for imposing penalty, as provided under the Act.

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But, simultaneously, this Court is of the view that since this Court had specifically directed to restore the electrical connection within a period of two weeks from the date of communication of copy of the order and the aforesaid order having been communicated on 12.06.2019 but the electricity connection has not been restored, the said act of the authority, which is competent

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to restore the electricity connection certainly requires to be dealt with by initiating inquiry by the competent authority so that the accountability be fixed upon the erring officials for taking appropriate action.

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Therefore, let an enquiry be conducted by the Secretary, Energy, State of Jharkhand for fixing accountability by taking appropriate decision in accordance with law.

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Accordingly, the instant contempt petition is consigned.

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The personal appearance of the Chairman cum Managing Director, Jharkhand Bijli Vitran Nigam Limited is dispensed with.

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(Dr. Ravi Ranjan, C.J.)

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(Sujit Narayan Prasad, J.)

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Alankar /

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A.F.R.

Ms Rani Sati Rice Mills through Its Proprietor Mukesh Kumar Gaddhyan v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Ms Rani Sati Rice Mills through Its Proprietor Mukesh Kumar Gaddhyan v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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