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Judgment
Mihir Kumar Jha, J.—Heard learned counsel for the parties, as with regard to the following reliefs prayed in this writ application:--
"1(i) For issuance of writ in the nature of mandamus or any other appropriate writ for commanding the respondents to make payment of commission amount of Rs. 482613.12 against pending bills of two feeders submitted by the petitioner as he completed franchisee works in pursuance of agreement between the petitioner and the respondent authority and his franchise work has been cancelled by the Electrical Superintending Engineer, Electric Supply Circle, Chapra vide letters dated 31.8.2013.
(ii) For issuance of writ in the nature of mandamus or any other appropriate writ for directing the respondents to pay 18% penal interest to the petitioner on the commission amount claimed for delay in payment as the petitioner has submitted bills to the respondent authority.
(iii) For holding that the petitioner is entitle for the payment of commission amount as he has executed the franchisee works in pursuance of the agreement between petitioner and respondent and his agreement for franchisee work has been cancelled on non est ground."
Learned counsel for the petitioner in support of the aforesaid prayer has drawn attention of this Court towards paragraph No. 17 of this writ application and submits that the same, read with Annexure-8, will leave nothing for speculation that claim of the petitioner for payment of amount of commission is admitted. Paragraph 17 of the writ application reads as follows:--
"17. That the petitioner submitted bills for Mustafabad and Dumra 11 KV feeders in Sub-Division time to time. Accordingly, review of the performance of 11 KV franchisee was separately prepared. It appears from the review performances of 11 KV aforesaid feeders that the same is verified and countersigned by Assistant Electrical Engineer, Maharajganj, Siwan and Junior Engineer, Goreakohi. The details of the feeder-wise monthly bills claimed by the franchisee are mentioned hereinbelow:--
Similarly Annexure-8 to the writ petition contains details in a chart of bills of different power sub-stations with signature of Junior Engineer and Assistant Engineer.
Learned counsel for the respondents on the other hand having filed the counter affidavit, has taken a specific plea in paragraph 6, which would definitely not make this Court believe that the claim of the petitioner has been actually admitted by the respondents. Paragraph 6 of the counter affidavit reads as follows:--
"6. That it is true that the petitioner had entered into an agreement for the works of franchise with respect to four feeders namely Hazmi Nagar, Jagdishpur, Shitalpur and Rajapatti against the NIT No. 224/PR/BSEB/2010. The franchise agreement was terminated by the Electrical Superintending Engineer. Chapra vide Letter dated 31.8.2014 on the ground that the petitioner has not performed his work with regard to targeted revenue collection attending the fuse calls and LT. HT breakdown. The petitioner has also failed to attend to minor maintenance and other works for providing power to the consumers in locality. The petitioner has failed to submit monthly bill to the consumers and there had been consumer protest against the franchisee as the failure on the part of the franchise had laid to failure in payment of the bill in time by the consumer. The petitioner franchisee had failed in collecting outstanding dues from the consumers and had caused the venue loss during performance as franchisee. The basis object of franchisee arrangement. Being fast collections of arrears and timely distribution of energy bill and regular collection couple with the object of reducing T & D losses got defeated. It is submitted that the revenue increased after removal of the franchisee as the collection was poor by the petitioner franchisee. The serious aspect of the working of the franchisee had also been not only breach of the terms of conditions but also submission of incorrect and collusive bills which were found to be incorrect on verification. For all these misconduct the agreement with the petitioner franchisee has been terminated."
(underlining for emphasis)
In fact, the reliance placed by the learned counsel for the petitioner on paragraph 13 of the counter affidavit is also wholly misplaced because from reading of that paragraph of the counter affidavit also, it does not transpire that the claim of the petitioner is admitted. Paragraph-13 of the counter affidavit, for the sake of clarity and convenience, is also quoted herein-below:--
"13. That in reply to statement made in paras 17, 18, 19 and 20 of the writ application it is stated that the statements are not fully correct. Though the petitioner submitted his bill but the same was found incorrect. The monthly-wise figure given by the petitioner was found completely incorrect. It is further submitted that the money receipts and the daily collection receipts were found to be not genuine after thorough verification."
As a matter of fact, from the pleadings on record, all that would transpire is that the petitioner has entered into franchisee agreement but its work was not found to be satisfactory, which led to termination of the franchisee agreement by the Electrical Superintending Engineer, Chapra vide his order dated 31.8.2014.
The plea that for the earlier period the bills of the work done by the petitioner under the franchisee agreement have been admitted is also not at all supported by paragraph No. 17 of the writ application wherein the petitioner has only given the details of the amount of bills drawn by the petitioner for the period November, 2011 to May, 2013. Such bills had to be duly verified not only by the Assistant Electrical Engineer (AEE) but also by the Electrical Executive Engineer but, the consolidated chart under the heading "Review of the Performance of 11 KV Franchisee" would go to show that they were signed by the concerned Junior Engineer and Assistant Engineer without there being any authentication of the Executive Engineer. In such a situation, this Court would find it difficult to accept the submission of the learned counsel for the petitioner as with regard to the claim of payment of the petitioner in this writ application to be admitted. It is here that paragraph No. 13 of the counter affidavit also becomes relevant wherein the authenticity of the bills have already been denied by the Electrical Executive Engineer, Siwan, who has categorically stated that neither the month-wise figure given by the petitioner was found to be completely correct nor the money receipt and the Bill Collection Receipt submitted by the petitioner were found to be genuine in course of verification.
In that view of the matter, this Court would find it difficult to direct the respondents to make payment of any admitted amount unless the respondents themselves would settle the issue.
It is here that this Court must record the undertaking of Mr. Anand Kumar Ojha, learned counsel appearing on behalf the respondents that whatever amount is found to be payable to the petitioner, by way of clearance of his bill, will be done within a period of six weeks and if any amount is not found to be admissible and payable, the reasons for the same will also be communicated to the petitioner within the same period of six weeks.
Mr. Ojha has however immediately put a caveat that this period of six weeks can only be utilized by the officials of the Bihar State Power Holding Company, if the petitioner would co-operate.
Learned counsel for the petitioner has submitted that the petitioner has always been co-operating and would also co-operate even in future and would answer any and every query or information solicited from him.
That being so, this Court would direct the respondent, the Electrical Superintending Engineer, Electricity Supply Circle, Chapra, being designated officer under the franchisee document, to decide the claim of the petitioner and also make payment of the admitted amount within a period of six weeks from the date of receipt of a copy of this order.
It also goes without saying that if any claim of the petitioner is found inadmissible and thus not payable, the respondent-Electrical Superintending Engineer, Electric Supply Circle, Chapra shall also communicate the reasons for the same to the petitioner within same period of six weeks. With the aforementioned observation and direction, this writ application is disposed of.