Present (1)  Sri Nisha Nath Ojha

  District & Sessions Judge (Retd.)

  President        

                        (2)  Sri Sheo Shankar Prasad Singh,

                            Member

                              Date of Order- 19.01.2015

                                                   ORDER

 Sheo Shankar Prasad Singh

1. The complainant approached this forum for following reliefs                against Opposite Parties:-

1. To direct the Opposite Party to quash the supplementary bills dated 02.11.05 for security deposit and electricity duty.
2. To pay Rs. 10,000/-(Ten Thousand Only)  as counsel and clerical fee.

2. The complainant has made following averment and               submissions in his complaint petition:-

1. The complainant is a Government of India Enterprises, Registered under the Indian Companies Act, 1956. The complainant seeks the redressal of his grievances against unfair trade, practice and unscrupulous Exploitation of the complainant by the Bihar State Electricity Board/PESU. From date of connection till 01.10.2000 there has not been any dispute. The Telephone Department has been treated as a public sector Enterprises (with effect from 01.10.2000) as raised by the A.G. Bihar, Patna ,Audit Memo No. 0404 dated 27.10.05.
2.  On the basis of objection pointed out by the A.G. Bihar, Patna, Audit Memo No. 0404 dated 27.10.05, the Bihar State Electricity Board raised a supplementary bill of Rs. 7,97,980/-(Seven lacs ninety seven thousand nine hundred eighty only) for security deposit and another bill of Rs. 2,64,372/-(Two acs sixty four thousand three hundred seventy two only) for Electricity duty for the period  from  Oct. 2000 to Sept. 2005.
3.  The disconnection of Electricity of Kankarbagh, Telephone Exchange will affect the working of about 40,000/-(Forty Thousand Only) telephone users of B.S.N.L. There is no  dispute with the parties eexcept the above mentioned old bills/dues. The complaint is paying the current bills before due date.

4.  On  02.11.05 the Electrical Superintending Engineer/PESU (E) raised a bill of Rs. 7,97,980/-(Seven lacs ninety seven thousand nine hundred eighty only) for security deposit and another bill of Rs. 2,64,372/-(Two lacs Sixty four thousand three hundred seventy Two Only) for electricity duty, due date of payment was  30.11.05 along with letter no. 2096 dated 02.11.05.
5. A notices was issued  by the Superintending Engineer, PESU, E Circles,  Vide Memo No. 172 dated-23.01.06 under section 56 of I.E. Act, 2003. The complainant asserts and stated that the demand raised on account of security deposit amount and Govt. Electricity Duty w.e.f. 01.10.2000 is totally bad in law, as even assuming though not admitted by the complainant, that after five years the Opposite Party are demanding  such a huge amount with interest and delay surcharge amount.
6. The complainant further submits that on one hand the Opposite parties has not raised this issue earlier and on the other hand they are raising supplementary bills with interest fine and surcharge amount.

                              In any view of the matter the aforesaid demand is wholly illegal, arbitrary and against the provisions of the tariff.

3. The Opposite parties in their written statement has submitted as follows:-
   1. It is alleged that the complainant is not liable to pay the supplementary bill for Rs. 7,97,780/-(Seven lacs ninety seven thousand seven hundred eighty only) against security deposit and another bill for Rs. 2,64,372/-(Two lacs sixty four thousand three hundred seventy two only) against electricity duty for the period October 2002 to September 2005 which were issued on the basis of objections pointed out the Accountant General, Bihar, Patna vide his Audit Memo No. 0404 dated 27.10.05.

2. As per Compendium of Revenue Circular and Orders of Bihar State Electricity Board, Volume 1 page 344 “no electricity duty is leviable on the units of energy consumer by Government of India.” Accordingly, the erstwhile Telephone Department which was Central Government Department was exempted from the payment of electricity duty. But with effect from 01.10.2000 the B.S.N.L became Public Sector Enterprises and registered under the Indian companies Act 1956. The bill for security deposit and electricity duty has been charged according to the tariff of the Board. Further, it is stated that interest /delayed payments Sur-charge on supplementary bill has not been charged.

3. The Sub-divisional Engineer(phones)BSNL, Kankarbagh, Patna is not the consumer of the Board who in fact is unatuthrorisedly consuming electrical energy in the name of previous consumer i.e. Sub-divisional Engineer (Phones), Kankarbagh, Patna  of the Central Government without getting its name mutated in the record of the Board. The L.T./H.T. consumers cannot escape the liability of not getting its name mutated, because the electricity is being supplied on the basis of the agreement in the present case such agreement is between a specific person  and the Board. There is no agreement between the Sub-divisional Engineer (Phones), B.S.N.L. Kankarbagh, Patna and the Board for supply of Electrical energy and the said authority cannot be allowed to continue to consume the electricity on the basis of an old agreement entered between the sub-divisional Engineer (Phones). P&T Department of the Central Government.

4. The demand of Rs. 7,97,780/-(Seven lacs ninety seven thousand seven hundred eighty only)  vide Bill dated 02.11.05 is towards the security deposit. The security deposit is being charged as per tariff, which requires each and every consumer to deposit the same as per the tariff. In the present case earlier security deposit was not payable because the connection was given in the name of sub-divisional Engineer (Phones), Kankarbagh, Patna of the post and Telegraph Department of Central Government. The said sub-divisional Engineer (phones) of the Post and Telegraph Department of Central Government is no longer consumer of the Board as it appears from the averments in the complaint petition itself. Now the Sub Divisional Engineer (Phones), of Bharat Sanchar Nigam Ltd. (B.S.N.L.) has started consuming electricity on behalf of Ltd. Company. It was the duty of the successor in shoe, namely Sub-Divisional Engineer (Phones) BSNL to inform the Board and also to seek mutation of the electric connection in the name of Sub-Divisional Engineer (Phones) B.S.N.L. in place of earlier Consumer, namely Sub-Divisional Engineer (Phones) P& T Department Government of India at Kankarbagh, Patna.  

5. It was on account of concealment by the Sub-Divisional Engineer (Phones) B.S.N.L. that the Board could not charge the security deposit amount, which deposit is dependent on the sanctioned load of the consumer. The B.S.N.L. is not exempted from the deposit of security amount and as such the deposit of security amount is the condition precedent for availing the electricity and if the consumer refuses to pay this amount of security deposit, its electric connection can be disconnected on this very ground. In any event, the rider of Section 56(2) of the Electricity Act 2003 do not apply in the present case because the Board has the power under the tariff to demand the amount of security deposit/additional security deposit from a consumer.

6. With regard to another Bill dated 02.11.05 which is supplementary Bill under Government of Bihar Electricity Duty Act, 1948 applicable wef. October 2000 to September 2005 was for a sum of Rs. 2,64,372/-( Two Lac Sixty Four Thousand Three Hundred Seventy Two Only). Actually it is not payable to BSEB, rather it is payable to Bihar State Government in terms of the Bihar Electricity Duty Act 1949. The Board is merely collecting the said amount as per the mandate of the said Act and in case, the Sub-Divisional Engineer (phones) BSNL, Kankarbagh,Patna wants this demand of electricity duty to be quashed, he has to implead the State of Bihar through the Secretary, Commercial Taxes Department for maintaining and adjudicating such prayer of quashing the Bill of electricity duty

7. Admittedly the electricity duty is payable by the B.S.N.L., as the B.S.N.L. has not been exempted from such payment of duty unlike the Central Government and its attached offices. Under the above facts and circumstances the Opposite Parties are justified to raise the bill of electricity duty, which was not charged in the earlier bills for the period October 2000 and on words as the sub-Divisional Engineer (Phones) B.S.N.L. has himself suppressed, this fact that the earlier consumer, sub-divisional engineer (Phones) P & T Department of Government of India was no longer consumer of the electricity and in fact, the Company BSNL had started availing electricity in the name of erstwhile Consumer without getting its name mutated in the record of the Board. The Electricity duty is neither energy charges nor the demand charges, nor is a part of any amount payable to the Board under the Tariff by a Consumer and as such the provisions of Electricity Act 2003 will not be applicable for realisation of electricity duty payable to the State Government under the Electricity duty Act.

8. It is relevant to state here that the complainant has started to make payment of current security deposit. for example, through forwarding letter no. 320 dated 24.02.09, the complainant was served with security bill dated 24.02.09 for the year 2007-08 and the same has been paid by the complainant vide Receipt No. 609 8110 dated 25.04.09 but the arrear of security Bill has not been paid on the ground of pendency of the present case. Further the complainant has started to pay the electricity duty on the units of current consumption, which would be apparent from the Bill dated 04.12.10 for Rs. 3,01,621.94/-(Three Lac One Thousand Six Hundred Twenty One and Ninety Four Paisa Only) which has been paid through Receipt No. 7222481 dated 18.01.10. Just like security deposit, the complainant has not paid the arrear bill of electricity duty on the ground of pendency of the present case.

9. Further it is submitted that the complainant is consuming electrical energy for commercial purposes and as such the complainant do not come under the definition of consumer under section 2 (d.) of the Act and the present case is not maintainable under the act; which is supported by a decision of the Delhi State Consumer Dispute Redressal Commission in the case of Gupta Plastic Industries Versus Yamuna power Ltd. as reported in  II (2004), CPJ 446; decision of the West Bengal State Consumer Dispute Redressal Commission Kolkata in the case of  W.B.S.E.B. Versus Subhash Bank as reported versus Subhash  Bank as reported in IV (2004), CPJ 26.

10. Further it is submitted that since the complainant is not a consumer of the Electricity Board in the eye of law, by illegal consumption of electrical energy in the name of erstwhile consumer the complainant does not require the status of the consumer in the eye of law and as such the present complaint case is not maintainable under the Consumer Protection Act 1986.
11. It is submitted and stated that for interpretation of the provisions of statue and statutory tariff to the Board the complainant should have raised his grievances before the competent court of law. The present complaint petition is misdirected under the Consumer protection Act, 1986 and as such it is fit to be dismissed.

4. The Opposite Parties have submitted in their written notes of arguments and supplementary written statement that during the pendency of the present case the disputed supplementary Bill amount of Rs. 7,97,780/-(Seven Lac Ninety Seven Thousand Seven Hundred Eighty Only) against security deposit for the period October 2002 to September 2005 has already been deposited by the complainant vide Receipt No. A.A.L 6098110 dated 25.04.09. From a copy of the statement attached with letter no. 1698 dated 08.10.09, addressed to the Audit Officer by the Electrical superintending Engineer, PESU (East), which is Annexure-I to the supplementary written statement filed on behalf of the Opposite Party in the present case, it would be apparent that Patna City Telephone Exchange Office of B.S.N.L. has already paid the supplementary Bill of electricity duty but only Rajendra Nagar telephone exchange and Kankarbagh telephone exchange are denying the payment on the basis of a stay order passed in the present case as well as that analogous Complaint Case No. 64 of 2006.

                    We have perused the entire materials available on the record and have heard both the Parties.

                    During the course of hearing it has been submitted  by the Learned Counsel for the complainant in the notes of argument   that Security Deposit amount to the tune of Rs. 7,97,780/-(Seven Lac Ninety Seven Thousand Seven Hundred Eighty Only) has already been paid but the Government State  Duty from Oct 2000 to Sept, 2005 to the tune of Rs. 2,64,372/-(Two Lac Sixty Four Thousand Three Hundred Seventy Two Only) have not been paid and the learned counsel for the Opposite Party submits that the amount of state duty is to be paid to the State Government in the Department of Commercial Taxes and Bihar State Electricity Board is not  interested  realising the same and therefore he has prayed that the Commercial Tax Department to made a party to this proceeding.     

                    The crux of the case is that prior to take over of the Telephone Department by Bharat Sanchar Nigam Limited, the Post and  Telegraph  Department ,  Government of India was exempted from payment of Security Deposit and  Government State Duty but the moment Bharat Sanchar Nigam Limited came into existence this exemption is not available to that Corporation i.e. B.S.N.L.  

                    Thus  We are of the view that the complainant is also liable to pay the Government  State Duty as the same had already been  paid in respect of Office of B.S.N.L., Patna City which is evident from the Annexure of supplementary written statement  and there is no reason not to make payment in respect of  offices of B.S.N.L.  Kankarbagh, Patna .

                    The submissions of the learned consel  of the complainant  that stay order passed in this case is a hurdle  in making payment of  the Government State Duty but on the other hand   they have already paid Security Deposit  charges not with standing the Stay order.

                    Although the Government State Duty is to be paid to the State Government but as usual the bill in this respect is always given by the Bihar State Electricity Board and the amounts thereof are  collected by them  for its payment  to the concerned Department of the State Government and therefore  submissions in this regard  of the learned counsel of the opposite parties  that  for this the concerned Department be impleaded as an opposite party is not a reasonable approach and in this way the opposite parties can not escape from their responsibility.

          For the reasons, stated above, We are of the view that the complainant is liable to make payment of the Government State Duty as per existing practice and procedure as such order passed on 14^th  February 2006 for maintaining status quo stands vacated.

          Accordingly, this complainant petition is disposed of to the extent indicated above.   

Member                                                                            President