Aftab Alam, J.

1. The controversy in this application relates to the dues payable by the Petitioner to the Board as electrical charges for the period October, 1988 to May, 1991 and the Petitioner seeks to challenge an order dated 6.9.1993 (copy at Annexure 10) passed by the Electrical Superintending Engineer, Gaya, Electrical Circle (E), Gaya holding the Petitioner liable to pay a sum of Rs. 11,36,651.31. In the impugned order the Electrical Superintending Engineer has left it open to the Petitioner to approach the proper authority for necessary direction for making the payment of the dues in installments.

2. Earlier a demand was raised against the Petitioner vide letter dated 22.5.1992 for payment of a sum of Rs. 12,86,624.62 as electrical charges (for the period October, 1988 to May, 1991). The Petitioner challenged that demand on the ground of wrong billing in C.W.J.C. No. 8182/1992. That writ petition was disposed of by a Bench of this Court by order dated 10.5.1993. At that stage, this Court was of the view that the matter required investigation of facts and accordingly asked the Petitioner to file a representation regarding his grievances before the Electrical Superintending Engineer, Gaya, who in turn was directed to consider the Petitioners grievances and to dispose of his representation on a proper verification from the records and after giving a hearing to the parties.

3. Following the direction of this Court, the Electrical Superintending Engineer heard the parties, examined the Boards records placed before him by the Assistant Electrical Engineer and the Electrical Executive Engineer and then passed a detailed order which comes under challenge in this application.

4. The Petitioner was given a high tension electrical connection following the execution of the H.T. agreement on 21.6.1984. On 20.4.1988 the Petitioner made a request for the disconnection of his line before the officials of the Board. However, it is not in dispute that the request was not acted upon and the Petitioner continued to receive and use electricity, till his line was disconnected on 18.12.1989 for non-payment of the dues. On 29.3.1991 the electrical connection was restored on the Petitioners request and on payment of Rs. 50,000/- towards the liquidation of the earlier dues. On 27.5.1991 the electrical line was once again disconnected and finally on 30.6.1992 the electrical meters etc. were removed from the Petitioners premises. These are some of the relevant dates regarding which there is no dispute between the parties.

5. From a perusal of the impugned order, it appears that the Electrical Superintending Engineer found and held that during the relevant period the electrical meter installed at the Petitioners premises was defective and was not recording correct readings. The Superintending Engineer also noticed that the Petitioner had requested the Board authorities to disconnect the line on 20.4.1988. He, however, further found that the lines were not disconnected because "he did not complete the departmental formalities". It was further pointed out that there was also an order of stay against any disconnection of the Petitioners line in an earlier case being CWJC No. 527/1988 filed by the Petitioner in this Court which was still pending final disposal. The Superintending Engineer also found that from 1.2.1989 to 27.1.1991, except for the period when the line remained disconnected on account of non-payment of arrears, the Petitioner had actually received and consumed electricity.

6. Mr. N.K. Agrawal, learned Counsel for the Petitioner submitted that on admitted facts, no demand for electrical charges could be raised against the Petitioner for the period 20.4.1989 to 29.3.1991, the date on which the connection was restored on the Petitioners request. Mr. Agrawal submitted that it was an admitted position that the Petitioner had given a notice dated 20.4.1988 asking the officials of the Board to disconnect his line. Then, with reference to Clause 9(a) of the H.T. Agreement, Mr. Agrawal argued that the agreement must be deemed to have stood determined on 20.4.89, after expiry of the one year period of notice as stipulated in the aforesaid clause of the agreement. According to learned Counsel, the agreement having been determined on 20.4.1989, the Board could not raise any demand for any charges in terms of the agreement or the tariff from that date till the line was restored on 29.3.1991. In support of his contention he relied upon two Supreme Court decisions; one in the Bihar State Electricity Board, Patna v. M/s Green Rubber Industry and Ors. : A.I.R. 1990 SC 699 [LQ/SC/1989/597] : 1990 (1) PLJR (SC) 73 and the other in G.M.-cum-Chief Engineer, B.B.E.B. v. Rajeshwar Singh : A.I.R. 1990 SC 706 [LQ/SC/1989/598] : 1990 (1) PLJR (SC) 67.

7. I am unable to accept the contention advanced on behalf of the Petitioner. It would be quite anomalous to hold that notwithstanding the fact that the Petitioner continued to receive and utilise energy after 20.4.1989, he would not be liable to pay for it because he had given a notice for disconnection on 20.4.1988. In my opinion, Clause 9(a) of the H.T. Agreement gives the consumer a right to determine the agreement after the expiry of one year from the date of the notice. Now, the accrual of the right of determination of the contract is one thing and the actual determination of the contract, in exercise of that right, is something quite different. In the instant case, a right might have accrued to the consumer on the basis of the notice dated 20.4.1988 but notwithstanding the notice the contract was kept alive and subsisting by the action of the consumer in continuing to receive and utilise electricity. He would, therefore, be liable to all the obligations in terms of the contract. I have also perused the decisions relied upon by Mr. Agrawal but I am unable to see how the Petitioner in this case can derive any support from them.

8. Mr. Agrawal next contended that the Electrical Superintending Engineer had found, in the impugned order, that during the relevant period the meter was not recording correctly and in view of that finding the only course open to the authorities was to raise a bill in terms of Clause 16.8. of the tariff. I find no substance in this submission either. The Superintending Engineer has calculated the charges payable by the Petitioner on the basis of the annual minimum guarantee which is one of the modes envisaged in Clause 16.8. of the tariff for raising the bill in case of a defective meter. It is to be noted that the Superintending Engineer has made a detailed calculation of the charges payable by the Petitioner in the light of the Supreme Court decisions in Bihar State Electricity Board v. Vishnu Roller, Flour and Oil Mills, Gaya. No infirmity was pointed out in these calculations.

9. I, however, find that the Superintending Engineer has also included the delayed payment surcharge as part of the dues payable by the Petitioner. It is to be noted that the Superintending Engineer found that the bill earlier given to the Petitioner was raised, on the basis of a defective meter and, therefore, did not reflect the correct demand. He himself set aside that bill and made a fresh calculation of the charges payable by the Petitioner. The earlier bill not having been prepared lawfully, I am unable to see how any delayed payment surcharge can be levied for non-payment of that bill. I am, therefore, of the view that the computation made by the Superintending Engineer is not correct in so far as it includes the delayed payment surcharge and to that extent it requires correction.

10. It is accordingly held that the Petitioner is not liable to pay any delayed payment surcharge as shown in the computation made in the impugned order contained in Annexure 10. He would be liable, however, to pay the amount after deducting the delayed payment surcharge included under different heads. In case, there is any delay in the payment of this amount, then only the Petitioner would be liable to pay the delayed payment surcharge for the period of delay and in accordance with law. I, am also not interfering with the observation made by the Superintending Engineer leaving it open to the Petitioner to approach the proper authorities for fixation of installments for payment of the dues.

11. In the result, this application is dismissed subject to the observations made above.