IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 6227 of 2011 M/s T&T Metals Pvt. Ltd. Ancillary Area,Tupudana, Hatia, Ranchi through its Director, Binod Kumar Agarwal, Shyam Kunj Apartment, Bardwan Compound, Lalpur, Ranchi ... ... Petitioner Versus 1. Jharkhand State Electricity Board, Engineering Bhawan,HEC , Dhurwa, Ranchi 2. The Chairman, Jharkhand State Electricity Board,Engineering Bhawan, HEC, Dhurwa, Ranchi 3. The General Manager cum Chief Engineer, Electric Supply Area, Kusai Colony, JSEB, Doranda, Ranchi 4. The Electrical Superintending Engineer, Electric Supply Circle, Kusai Colony, JSEB, Doranda, Ranchi 5. The Electrical Executive Engineer (Commercial & Revenue), Electric Supply Circle, JSEB, Doranda, Ranchi … ... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRASHANT KUMAR ------ For the Petitioner: Mr. D.K. Pathak, Adv. Mrs. Sweta Rani, Adv. For the Respondents: Mr. Ravi Kumar Singh, A.S.C.(JUVNL) ------ 04/02.07.2015 This application has been filed for quashing the order/Judgment dated 13.9.2011, passed by the Electricity Ombudsman, Jharkhand in Case No. EOJ/10/2011, whereby and whereunder, the learned Ombudsman had directed the petitioner to deposit security amount for the financial year 2010-11 in 12 installments with interest. The petitioner further prayed for quashing the letter no. 4613, dated 3.11.2014 (Annexure-S.A.1), whereby a demand of Rs. 1,29,36,046/- was made by the respondents towards security deposit for the financial year 2012-13.
2. Admittedly, petitioner is a HTSS consumer, having a contract demand of 3600 KVA. It appears that earlier petitioner was availing electrical energy after depositing security amount as per the provision of Section 47 (1) of the Electricity Act, 2003 (hereinafter referred as “the Act”). However, in terms of Section 47 (5) of the Act as well as Clause 10.1 of the Electricity Supply Code Regulations, 2005, petitioner decided to opt for supply of the electricity on the basis of prepayment meter instead of depositing security amount as per Section 47 (1) of the Act. The aforesaid option given to the respondents vide letter dated 04.12.2010. It then appears that when the respondent had not given any heed to the aforesaid letter of the petitioner and they insisted upon the petitioner to deposit security amount for the financial year 2010-11, the petitioner filed an application before the “Vidyut Upbhokta Shikayat Nivaran Forum” (hereinafter referred as 'Forum').
3. It appears that respondent had filed a counter affidavit in the 'Forum', wherein it was stated that prepayment meters are not available in the market. However, the consumers, who are keen to install it, should be given reasonable time i.e., of one month, to make available the prepayment meter to the respondent-Board. The said meter will be installed after proper testing and sealing by the Board, subject to the conditions that the consumer will have to make payment of all the dues outstanding against them till the date of removing of existing meter, either disputed or undisputed, after adjusting the security amount with interest thereupon. The respondents had admitted that the provision for supply through prepayment meter is made under Section 47 (5) of the Electricity Act, 2003 as well as under the second proviso of Clause 10.1 of the Electricity Supply Code Regulations, 2005. In spite of the aforesaid admission of the respondent, the 'Forum' concluded that at present it is not feasible for the respondent to install prepayment meter, accordingly, directed the petitioner to make payment of the security amount in 20 interest free equal monthly installments. Against the said order, the respondent filed an appeal before the Electricity Ombudsman, Jharkhand vide Appeal No. EOJ/10/2011. It appears that the learned Ombudsman without disturbing the findings of the 'Forum' that the Board is not in a position to install prepayment meter as per the provisions of the Act and the Electricity Supply Code Regulations, 2005, had directed the petitioner to deposit the security amount in 12 installments with interest. Against that order, the present writ application filed.
4. It is pertinent to mention that during the pendency of this writ application, the respondent made another demand vide letter no. 4613, dated 03.11.2014(Annexure-S.A.1), of Rs.1,29,36,046/- towards security amount for the financial year 2012-13. The said demand was also challenged in this case by filing an amendment petition vide Interlocutory Application No. 506 of 2015, and the said amendment allowed vide order dated 28.01.2015.
5. Sri D.K. Pathak, learned counsel for the petitioner submits that as per Section 47 (5) of the Act, the respondents are not entitled to demand security amount in pursuance of Clause (a) of sub-section (1) of the Act, if the consumer prepared to take the supply through a prepayment meter. Accordingly, Sri Pathak submits that the aforesaid impugned demand made by the respondents is without jurisdiction and against the law. He further submits that once a consumer gives option for making supply of prepayment meter, then the respondent authority has no other option than to supply electricity through prepayment meter. He then submits that as per the provisions of Section 55 of the Electricity Act, and Clause 13.2.1 of the Electricity Supply Code Regulations, 2005, it is the duty of the licensee (respondent) to install a correct meter. Accordingly, Sri Pathak, learned counsel for the petitioner submits that the excuse given by the respondent in the 'Forum' is against the law, therefore, on the basis of above excuse, the respondent cannot deny the benefit which occurred to the petitioner under Section 47(5) of the Act. Accordingly, Sri Pathak submits that the impugned demands of security amount be quashed and the respondents be directed to supply electricity to the petitioner through prepayment meter.
6. On the other hand, Sri Ravi Kumar Singh, learned counsel for the respondents, submits that rearrangements made by the JSEB (now, JUVNL) to supply electricity to its consumer through prepayment meter. The arrangement for supply of electricity through prepayment meter is under progress. Therefore, at present the demand of the petitioner to supply electricity through prepayment meter cannot be accepted. Accordingly, Sri Singh submits that during the interim period, the petitioner was directed by the 'Forum' and the learned Ombudsman to deposit the security amount as per the provisions contained in Section 47 (1) of the Act and Clause 10.1 of the Electricity Supply Code Regulations, 2005.
7. Having heard the submissions, I have gone through the record of the case. Section 47 of the Electricity Act, 2003 reads as under:- 47. Power to require security.- (1) Subject to the provisions of this section, a distribution licensee may require any person, who requires a supply of electricity in pursuance of section 43, to give him reasonable security, as may be determined by regulations, for the payment to him of all monies which may become due to him-- (a) in respect of the electricity supplied to such person; or (b) where any electric line or electrical plant or electric meter is to be provided for supplying electricity to such person, in respect of the provision of such line or plant or meter, and if that person fails to give such security, the distribution licensee may, if he thinks fit, refuse to give the supply of electricity or to provide the line or plant or meter for the period during which the failure continues. (2) Where any person has not given such security as is mentioned in sub-section (1) or the security given by any person has become invalid or insufficient, the distribution licensee may, by notice, require that person, within thirty days after the service of the notice, to give him reasonable security for the payment of all monies which may become due to him in respect of the supply of electricity or provision of such line or plant or meter. (3) If the person referred to in sub-section (2) fails to give such security, the distribution licensee may, if he thinks fit, discontinue the supply of electricity for the period during which the failure continues. (4) The distribution licensee shall pay interest equivalent to the bank rate or more, as may be specified by the concerned State Commission, on the security referred to in subsection (1) and refund such security on the request of the person who gave such security. (5) A distribution licensee shall not be entitled to require security in pursuance of clause (a) of sub-section (1) if the person requiring the supply is prepared to take the supply through a pre-payment meter.
8. From perusal of the aforesaid provisions, it is clear that if a consumer prepare to take supply of electricity through prepayment meter, then the licensee have no other option than to supply the electricity to the consumer through prepayment meter. It is also clear that in that event, the licensee is not entitled to demand security deposit as provided under Section 47 (1) of the Electricity Act. Admittedly, the petitioner vide annexure-2, had shown his desire to take supply of electricity through prepayment meter. From the various counter affidavits filed by the respondent, it is clear that the respondent is denying the claim of the petitioner, merely on the ground it has not yet made arrangement to supply the electricity through prepayment meter. The aforesaid excuse of the respondent appears to be against the law.
9. The respondent being a 'State' within the meaning of Article 12 of the Constitution, is duty bound to follow the law if it wants to do business of supply of electricity. It is not open to the respondent to take a plea that it will not follow the law because it had not made arrangement for the same. Therefore, on the basis of the above excuse, the prayer made by the petitioner cannot be denied.
10. The second excuse given by the respondents in its counter affidavit filed before the 'Forum' that the meter is not available in the market, is also not correct. According to the petitioner, such meters are available in the market. Even the respondent had stated in the counter affidavit filed before the 'Forum' that the consumer may be directed to make available the prepayment meter to the respondents so that the Board may install it after making proper testing. This shows that such meters are available in the market. It is worth mentioning that Section 55 (1) and Clause 13.2.1 of the Electricity Supply Code Regulations,2005 cast a duty upon the respondent to install the said meter for supply of the electricity. Under the aforesaid circumstances, the respondent, being a licensee for the supply of electricity, is duty bound to provide prepayment meter in the premises of the petitioner and make electricity supply in accordance with law.
11. In view of the discussions made above, I allow this application and I hereby quash the impugned orders passed by the Electricity Ombudsman, Jharkhand. I also quash the demand made by the respondent from the petitioner to deposit revised security money for the financial years 2010-11 and 2012-13. I further direct the respondents to make arrangement for supply of electricity in the premises of the petitioner by installing prepayment meter as per Section 47 (5) of the Act and second proviso to Clause 10.1 of the Electricity Supply Code Regulations, 2005. I further restrain the respondents from demanding security money from the petitioner as per Section 47 (1) of the Act. However, I direct the petitioner to make payment of the current bill regularly. (Prashant Kumar, J.) Sudhir