Manipur Tea Company Vs Assam State Electricity Board and Others

1. Heard the appellant and the respondents.

2. The respondent raised bills for recovery of electricity consumption charges for the period 4.7.2002-2.8.2005, to which the following objections were raised by the petitioner.

(i) The claim is barred by limitation under section 56 of the Electricity Act, 2003.

(ii) The provisions of section 185(2) of the Electricity Act, 2003 do not save the liabilities incurred by the petitioner with the erstwhile electricity board.

(iii) The provisions of the Electricity Act, 2003, in particular section 185, do not save any of the liabilities incurred by the petitioner from being recovered by the respondent.

3. The decision of the Supreme Court in Gujarat Urja Vikash Nigam Ltd. Vs. Essar Power Ltd., AIR 2008 SC 1921 : (2008) 2 ARBLR 1 : (2008) 1 CLT 841 : (2008) 2 CompLJ 357 : (2008) 4 CTC 539 : (2008) ELR 1 : (2008) 3 JT 336 : (2008) 4 SCC 755 : (2008) 1 UJ 467 : (2008) AIRSCW 2169 is relied on to highlight the point that when there is conflict between the provisions of the Electricity Act, 2003 and the provisions of other enactments the provisions of the Electricity Act, 2003 will prevail.

4. The decision of the Supreme Court in Jharkhand State Elect. Board and Others Vs. Laxmi Business and Cement Co. P. Ltd. and Another, AIR 2014 SC 1820 : (2014) AIRSCW 1656 : (2014) 3 JT 507 : (2014) 2 RCR(Civil) 236 : (2014) 3 SCALE 155 : (2014) 5 SCC 236 : (2014) 4 SCJ 689 is relied on, where it is held that the liability of minimum consumption charges incurred during the period the electricity board is in operation cannot be recovered when the State Commission has fixed the tariff under the provisions of the Electricity Act, 2003.

5. The decision of the Supreme Court in State of Rajasthan Vs. Mangilal Pindwal, AIR 1996 SC 2181 : (1996) 74 FLR 2403 : (1996) 6 JT 162 : (1996) LabIC 1846 : (1997) 2 LLJ 756 : (1996) 5 SCALE 38 : (1996) 5 SCC 60 : (1996) 3 SCR 98 Supp : (1996) 3 SLJ 67 : (1996) 2 UJ 571 is relied on to bring home the point that when a statute is repealed the repealed statute ceased to exist with effect from the date of such repeal but it does not affect the previous operation of the law, which has been repealed during the period it was operative prior to the date of such repeal.

6. The decision of the Calcutta High Court in Mahesh Oil Mill and Another Vs. State of West Bengal and Another, AIR 2007 Cal 203 : (2007) 3 CHN 787 is relied on, where the arrears of electricity consumption of the year 1993 was sought to be recovered by raising a bill in September, 2004 and with a threat of disconnection of power supply in the context of provisions of section 56(2) of the Electricity Act, 2003 on the ground that there is a mistake in raising the bill. In the said case the matter was also the subject-matter of arbitration. It was held that there was nothing to show that the mistake was detected by the CESC immediately after the award was made; it was a disputed question of fact whether it committed any mistake in the matter of maintenance of the suspense account.

7. After going through the decisions cited at the bar on the part of the counsel for the petitioner we do not see any reason to hold that the ratios laid down in the said decisions have any application to the facts of the case.

8. The provision of section 185(5) of the Electricity Act, 2003 reads as thus.

"Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals".

9. The provisions of section 6 of the General Clauses Act, 1897 read as thus.

"Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed".

10. The provisions of the Electricity Act, 2003 permit the erstwhile electricity board to function till the period of one year, that is from the date of commencement of the Electricity Act, 2003 - from 10.6.2003 to 10.6.2004. In the present case bills are raised for the period 4.7.2002-2.8.2005. Provisions of section 185 of the Electricity Act, 2003, read with section 6 of the General Clauses Act, 1897, clearly save "any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed". This would clearly save the liability incurred by the petitioner under the repealed enactment - the Electricity Act, 1910.

11. The provision of section 56(2) of the Electricity Act, 2003 reads as thus.

"Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity".

12. No doubt under the Electricity Act, 1910 there was no limitation prescribed.

13. The Supreme Court in para 42 and 42 of its judgment in Kusumam Hotels (P) Ltd. Vs. Kerala State Electricity Board and Others, AIR 2008 SC 2796 : (2008) ELR 293 : (2008) 9 JT 161 : (2008) 9 SCALE 448 : (2008) 13 SCC 213 : (2008) AIRSCW 1383 : (2008) AIRSCW 4638 : (2008) 2 Supreme 16 : (2008) 4 Supreme 214 made the following observations.

"42. Sub-Section (5) of Section 185 of the Electricity Act, 2003, reads thus:

"185(5). Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals."

43. Whereas the bills are issued only in respect of the dues arising in terms of the law as was applicable prior to the coming into force of the 2003 Act, sub-section (2) of Section 56 shall apply after the said Act came into force. The board could have even framed a tariff in terms of the provisions appended to Section 61 of the Act. The appellants incurred liability to pay the bill. The liability to pay electricity charges is a statutory liability. The Act provides for its consequences. Unless therefore, the 2003 Act specifically introduced the bar of limitation as regards the liability of the consumer incurred prior to coming into force of the said Act; in our opinion, having regard to Section 6 of the General Clauses Act, the liability continues".

14. In view of the observations made by the Supreme Court in Kusumam (supra) it becomes explicit that the liabilities incurred by the petitioner get saved under section 6 of the General Clauses Act, 1897 and would be recoverable by the respondent. The period of limitation prescribed in section 56(2) of the Electricity Act, 2003 is only prospective in effect. The said provision has already declared that any amount due after a period of two years shall not be recoverable unless in monthly bills the said arrears are shown continuously. Here (in this case) it is not a case of arrears in question for the period 4.7.2002-2.8.2005 beyond the period of two years. Therefore the question of showing the arrears in monthly bills does not arise. Within two years the said amount may become recoverable. In the instant case the bills are raised only by the Assam State Electricity Board (ASEB). Therefore the right of the ASEB to claim arrears would be restricted only to 10.6.2004 that is the grace and extended period as extended by the Electricity Act, 2003. The ASEB will have no right to recover the arrears incurred by the petitioner. Therefore the bills raised by the respondent for the period 4.7.2002-2.8.2005 become recoverable. The rest of the claim is inadmissible as being without jurisdiction on the part of the respondent to recover. Accordingly the petition is partly allowed. The amounts paid shall be adjusted in the dues declared to be recoverable in this petition.