Bhola Prasad Singh v. The State Of Bihar And ORS
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3534 of 2015 =========================================================== Bhola Prasad Singh, Son of Late Sidheshwar Singh, Resident of VillageKanchanpur, P.O. Kanchanpur, P.S. Bihta, District- Patna. .... .... Petitioner
Versus
1. The State of Bihar through Revenue Secretary, Bihar, Patna.
2. The Sub-Divisional Officer -cum- Certificate Officer, Danapur, District- Patna.
3. The Bihar State Power Holding Company Ltd through the Energy Secretary - cum- Chief Managing Director, Bihar Patna.
4. The South Bihar Power Distribution Company Ltd through the Managing Director, Baily Road Patna.
5. The Executive Engineer, Electrical Supply Division, Bihta, Patna.
6. The Assitent Electrical Engineer, Electric Supply Sub- Division Bihta , Patna. .... .... Respondents =========================================================== Appearance :
For the Petitioner : Mr. Nawal Kishore Singh, Mr. Jitendra Nath Tiwary Mr. Upendra Mishra, Advocates For the State : Mr. Sunil Kumar, AC to GA 12 For Respondent-SBPDCL: Mr. Vinay Kirti Singh, Sr. Advocate Mr. Vinay Kr. Verma, Mr. Akhileshwar Singh, Advocates =========================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT Date: 27-08-2018 Heard learned counsel for the petitioner, learned counsel for the State as well as learned senior counsel for the respondent- South Bihar Power Distribution Company Limited.
2. The present writ petition has been filed for quashing the entire proceedings of Certificate Case No. 107/2013-14 initiated
2/5 by the Certificate Officer, Danapur against the petitioner on the requisition for a certificate sent under Section 5 of the Bihar and Orissa Public Demand Recovery Act, 1914 (for short, "PDR Act") requesting the Certificate Officer (Respondent No. 2) to recover Rs. 3,23,471/- from the petitioner in respect of the alleged electrical energy supplied; for quashing the certificate dated 02.02.2015 directing the petitioner (certificate debtor) to deposit the certificate amount of Rs. 3,23,471/- by 02.03.2015; for quashing the requisition dated 06.12.2013 sent under Section 5 of the PDR Act; and further for staying the proceeding by restraining the Certificate Officer (Respondent No. 2) from proceeding in the said certificate case.
3. Learned counsel for the petitioner questions the validity and legality of the subject certificate proceedings on several counts as follows - (i) The certificate filed by the Certificate Officer (Annexure-12) is completely invalid as the same does not bear the signature of the Certificate Officer nor the certificate case number nor the date of certificate.
(ii) The requisition issued under Section 5 of the PDR Act has not been verified in the manner prescribed, nor dated, which are mandatory requirements under the PDR Act. (iii) The demand raised against the petitioner in the
3/5 certificate proceedings was time barred in view of Clause 10.18 of the Bihar Electricity Supply Code, 2007 and hence, no certificate could have been filed.
(iv) The Certificate Officer could not have proceeded against the petitioner in absence of any written agreement and the petitioner had not consented for recovery of the demand through the certificate proceedings under the PDR Act.
(v) A copy of the certificate was not enclosed with the statutory notice issued under Section 7 of the PDR Act, which was a mandatory requirement of the Act and failure in this regard vitiated the entire proceeding.
4. Counter affidavits have been filed on behalf of the State as well as the respondent-Power Company in opposition of the writ petition. Learned senior counsel for the respondent-Power Company has sought to submit that the requisition has been issued on 06.12.2013 which was well within the period of two years from the date when such amount became due and as such the certificate proceeding is not barred by limitation. It is further submitted with reference to paragraph 8 of the counter affidavit of the respondent - Power Company that under agriculture supply, all consumers had to enter into an agreement for supply of energy. Clause 10 of the agreement provides for recovery of dues under the provisions of the
4/5 PDR Act.
5. Having heard learned counsel for the parties and on careful consideration of the materials available record, this Court finds merit in the writ petition. A bare perusal of the requisition discloses that the same is neither dated nor has been verified. Similarly, the certificate is neither dated nor bears the signature of the Certificate Officer and does not also contain the certificate case number. The original records of the case were called for by this Court and the certificate in the original record also shows that the requisition and the certificate suffer from the said infirmities.
6. It has been held by this Court in Hari Prasad Agrawal Vs. State of Bihar reported in 1975 BBCJ 723 and also in M/s Vishnu Sugar Mills Limited Vs. The State of Bihar & others reported in 2015(1) PLJR 863 that the entire certificate proceeding is rendered without jurisdiction for want of proper requisition and certificate.
7. The petitioner has further specifically stated that no agreement exists between the petitioner and the Power Company for recovery of the dues under PDR Act which has been responded in the counter affidavit, merely stating that all the consumers had to enter into an agreement. The stand of the petitioner however has not been specifically controverted nor a copy of the agreement produced before this Court.
5/5
8. In the above circumstances, the certificate proceeding initiated against the petitioner in connection with Certificate Case No. 107/2013-14 in the court of the Certificate Officer, Danapur, Patna (respondent no. 2) is hereby quashed. The writ petition stands allowed.
(Vikash Jain, J) B.T/- AFR/NAFR NAFR CAV DATE NAFR Uploading Date 10.09.2018 Transmission Date N.A.