WRIT PETITION 2 on 1 July 1964

1. The State of Jharkhand

2. The Jharkhand State Electricity Board, Ranchi

3. General Manager cum Chief Engineer, Dhanbad Electric Supply Region, DhanbadSupply Region, Dhanbad

4. Executive Engineer, Coalfield Electric Division, Dhanbad

5. Shri Biras Oddaya, Addl. Cum Certificate Officer, Dhanbad … ... Respondents

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

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09/03.12.2015 Seeking quashing of the entire proceeding in the Certificate Case No. 2/Electricity 1/81-82 including, letter dated 26.03.2004, the present writ petition has filed.

2. The present writ petition has been filed on behalf of M/s Bharat Coking Coal Limited which is a Central Government Company. The Moonidih Project of M/s BCCL was previously owned by National Coal Development Corporation (NCDC). Under the agreement dated 01.07.1964 between M/s NCDC Ltd. and Jharkhand State Electricity Board, electricity was supplied under the Annual Minimum Guarantee Contract. Clause 16 of the said agreement contained an arbitration clause. Though, the Electricity Board failed to supply the contract demand, it raised demands for payment from M/s NCDC Ltd which were denied by M/s NCDC Ltd. M/s BCCL served the load surrender notice upon respondent no. 2 and it has availed supply of electricity from DVC since February, 1977 still, respondent no. 2 raised energy bills. The respondent-Board has infact removed/dismantled 33 KV OCB installation at Moondih Project and it has taken out the circuit beaker from the feeder. Though, letters for refund/adjustment of excess payment made to the respondent-Board were written, the respondent-Board served notice dated 28.04.1980 raising a demand for Rs. 14,95,019.38. M/s BCCL claims refund of Rs. 5,57,849.22 from the Electricity Board-respondent no. 2 however, a Certificate proceeding was initiated before the respondent no. 5. M/s BCCL appeared in the said proceeding and filed objection under Section 9 of the Bihar and Orissa Public Demand Recovery Act. In the Certificate Proceeding, a petition was also filed for referring the claim and counter-claim of the parties for adjudication in terms of the arbitration clause however, 15 years thereafter, letter dated 16.03.2004 was issued to the certificate debtor for depositing Rs. 14,95,034.36. Aggrieved, the petitioner has approached this Court.

3. Mr. Ananda Sen, the learned counsel for the petitioner submits that in view of the fact that since February, 1977 supply of electricity from the respondent-Board has been discontinued and a claim of excess payment has been raised on behalf of M/s BCCL, in terms of Clause 16 of agreement dated 01.07.1964, certificate officer should have referred the matter for arbitration. It is further submitted that 15 years after the petition dated 27.07.1989 vide Annexure-13 was filed, the certificate officer erroneously issued notice for depositing the certificate amount. Per-contra, Mr. Ajit Kumar, the learned Senior Standing Counsel submits that M/s BCCL has prolonged the proceeding of the Certificate Case for long 35 years. Though, it has appeared in the Certificate Proceeding and followed the procedure under Bihar and Orissa Public Demand Recovery Act by filing objection under section 9, M/s BCCL has failed to take prompt and necessary steps in the matter and therefore, no interference is required in the matter.

4. In the writ petition, the petitioner has admitted that objection under Section 9 has been filed on behalf of M/s BCCL and a copy of the said objection has been annexed vide Annexure-12 to the writ petition. From the materials brought on record, it does not appear that the petitioner prosecuted the said objection under Section 9 before the certificate officer. In so far as, contention referring to Clause 16 of the agreement is concerned, I find that M/s BCCL has not invoked the arbitration clause by giving a notice to the respondent-Board. Filing application vide Annexure-13 before the certificate officer for referring the matter for arbitration is inconsequential, as the Tanuj/- certificate officer has no power to refer the matter to Arbitrator under Clause 16 of the agreement dated 01.07.1964. The learned Senior Standing Counsel for the respondent-Board has rightly contended that the proceeding in the Certificate Case has been unnecessarily prolonged for 35 years and precious time of the Court has been wasted.

5. Considering the aforesaid facts, I am not inclined to interfere in the matter and accordingly, the writ petition is dismissed. The petitioner is directed to press objection under Section 9, forthwith. The certificate officer shall pass appropriate order and proceed in the matter, in accordance with law.

(Shree Chandrashekhar, J.)