ORDER J.S. Verma, J. 1. The petitioner No. 1, Jiyajeerao Cotton Mills Ltd. is an existing company within the meaning of the Companies Act, 1956, and having its registered office at Birlanagar, Gwalior, in the State of Madhya Pradesh Petitioner No.2, Jal Narain Somani, is a share holder of this company. The petitioner No. 1 (hereinafter called 'the Company') has a composite textile mill at Birlanagar, Gwalior, wherein it manufactures yarn and textiles. For running its mill the company requires electricity and had entered into a contract with respondent No. 1, M.P. Electricity Board (thereinafter called 'the Board') for supply of electricity to it in accordance with specified terms and conditions. Under the agreement dated 27-10-1971, between the company and the Board, 1500 k.w. power as an H.T. coasumer, was to be supplied by the Board to the Company and the agreement was to commence Com the date reckoned according to the stipulation therein. Supply of 1500 k.w. power under this agreement commenced with effect from 3-3-1972. The agreement was latter modified mentioning therein that an additional 1000 k.w. power was to be supplied with effect from 1.11.1973. The result was that under this agreement, the company was to be supplied 1500 k.w.+1000 k.w.=2500 k.w. with effect from 1.11.1973. This contractual position between the Company and the B0ard carne to be further modified by two agreements dated 11-7-1979 and 26-2-1980, under which an addition of 800 k.w. and 190 k.w. respectively was made to the earlier quantity of 2500 k.w. thereby increasing the total contract demand first to 3300 k.w. and ultimately to 3490 k.w. per month. 2. Section 22-B of the Indian Electricity Act, 1910, gives power to the State Government to issue orders providing for regulating the supply, distribution consumption or use of electrical energy for maintaining its supply and securing its equitable distribution. An order issued by the State Government under this provision supersedes the contractual obligation of the licensee (State Electricity Board) under any contract with the consumer for supply of electrical energy. The State of Madhya Pradesh issued two orders on 4-4-1973 under section 22-B of the Indian Electricity Act, called the 'Madhya Pradesh Electricity Supply and Consumption Regulation Order, 1975' (Annexure E) (hereinafter called the 'Regulation Order') and the M.P. Electricity Generation, Control and Consumption Order, 1975 (Annexure G) (hereinafter called the Generation Order'). Both these orders came into force on 7-4-1975. Both these orders came into force on 7-4-1975. The Regulation Order was amended from time to time, retaining its basic characteristics. These orders were admittedly made by the State Government for meeting the acute power shortage in the State with a view to maintaining the supply of electrical energy and securing its equitable distribution amongst the consumers. In brief, the Generation Order was issued to compel any consumer who also had an alternative source of generating power of his own to generate electricity from his set to the maximum extent technically feasible and to reduce the Board's supply under the contract with him to the extent of this additional generation available to him from the alternative source. The Generation Order, therefore, applied only to the consumers who had their own alternative source of generating power. The Regulation Order enabled rationing of the available electrical energy between the consumers for ensuring equitable distribution by fixing the ceiling upto which alone a consumer was entitled to draw electricity at normal tariff and providing for the charging at penal rate any consumption in excess of the ceiling fixed, in addition to conferring power to disconnect supply for violations made by the consumer. 3. When the aforesaid two orders came into force on 7-4-1975, the Company was entitled to draw power upto 2500 k.w. from the Board's supply under the contract, as earlier stated. The company admittedly had an alternative source of generating power and, therefore, the Generation Order also was applicable to it, in addition to the Regulation Order. The total installed capacity of the company's generating set was 9800 k.w. but according to the company itself the actual maximum generation was between 4500 and 5000 k.w. depending upon the availability of steam. It is clear that unless the power generated from the alternative source owned by the company fell short of the contractual demand, under the Generation Order, the Company was not entitled to draw any power from the Board under the contract. The dispute in this petition is mainly with regard to the Board's demand for payment of the electrical energy consumed during certain period by the company at penal rate by virtue of the Generation Order and the Regulation Order. The company, on the other hand, claims that it is not liable to pay any such penal charges. The various arguments advanced are in support of the rival contentions. 4. The company, on the other hand, claims that it is not liable to pay any such penal charges. The various arguments advanced are in support of the rival contentions. 4. For the period of more than four years upto 11-11-1979, the Board has not demanded any penal charges from the company and whatever charge has been recovered by the Board for supply of power has not been disputed by the Company. The dispute between the parties is with regard to the period commencing from 12-11-1979. For the period between 12-11-1979 and 31-7-1989 the entire quantity of power drawn by the company from the Board ha, been charged at the penal rate on the ground that the contractual obligation was reduced to nil by virtue of the Generation Order, since the alternative source of power belonging to the company covered the entire contractual demand of 2500 k.w. The excess amount claimed by the Board from the company on account of higher tariff, according to the penal rate, comes to Rs.76,51,379.87. For the period between 1.8.1980 and 30-6-1981, the Board took into account the increase in contractual obligation from 2500 k.w. to 3490 k.w. i.e., additional 990 k.ws. as well as the Company's request for some extra power on account of difficulty in generating from its own set and, therefore, gave to the company the benefit of supply of 1250 k.ws. under the contract in accordance with the Generation Order. This quantity of 1250 k.ws. reduced from the contractual demand of 3490 k.ws. under the Generation Order, has been curtailed according to the formula given in the Regulation Order and this reduced quantity has been treated as the ceiling limit for supply of power by the Board to the Company at normal tariff while any quantity consumed in excess thereof has been charged at the penal rate. For this period between 1-8-1980 and 30-6-1981, the unpaid balance remaining due from the company under the bills issued, amounts to Rs.1,04,46,501.10. Thus, for these two periods from 12-11-1979 to 31-7-1980 and 1-8-1980 to 30-6-1981, the amount of Rs.76,51,379.87 + Rs.1,04,46,501.10= Rs.1,80,97,880.97 remained unpaid by the company to the Board against the hills issued for the period and the challenge in this petition is mainly to this demand. 5. This petition was filed on 6-8-1981 and by virtue of the stay order dated 7-8-1981, the status quo ordered there by continues. 6. 5. This petition was filed on 6-8-1981 and by virtue of the stay order dated 7-8-1981, the status quo ordered there by continues. 6. Briefly stated, the petitioners' case on merits is that there has been no valid assessment of the generating capacity of the Company's generating set so as to permit any reduction in the contractual demand by virtue of the Generation Order and that, at any rate, such assessment even it made, was never acted upon for the period ending on 11-11-1979; and, therefore, unless a valid assessment is now made under clause 3 of the Generation Order, determining the capacity of the alternative source of generation, there can be no reduction in the contractual obligation under the Generation Order. The petitioner claims that the bills issued by the Board for the period commencing from 12-11-1979 on the basis of powers given under the Generation Order and the Regulation Order, charging at the penal rate, are invalid. It is also claims that clause 3 of the Generation Order is ultra vires section 22-B of the Indian Electricity Act and unconstitutional being violatives of Articles 14 and 19 (1) (g) of the Constitution. Validity of clause 3 of the Generation Order is also attacked on the ground of impermissible delegation of essential legislative powers. 7. The relief claimed in the petition, as summarised by the learned counsel for the petitioners at the hearing, is for quashing the Board's Orders dated 17-5-1975 (Annexure H), 10-10-1975 (Annexure O), 5-8-1980 (Annexure T), 13-10-1980 (Annexure U), the bills for the total amount of Rs.1,80,91,880.97 for the periods between 12-11-1979 and 30-6-1981; a direction for making fresh calculation and adjustment in accordance with law, which would include the question of refund of any excess payment made by the petitioner; and quashing of the blanket prohibition against supply of power during emergency under clause 3, proviso (iii), of the Generation Order contained in the orders dated 13-10-1980 and 25-7-1981. 8. 8. In reply, the case of the M.P. Electricity Board (respondent No. 1) is that the necessary assessment was made and directions issued to the company for generating 2,500 k.w. of electricity from its generating set under clause 3 of the Generation Order with the result that the contractual obligation to supply power was reduced to this extent and it was nil when the entire contractual obligation was to supply only 2,500 k.w., the supply of power upto 11-11-1979 was only during emergency covered by clause 3, proviso (iii) of the Generation Order and hot because the direction given under clause 3 of the Generation Order reducing the contractual obligation was not acted upon. The bills issued at penal rate for excess consumption are supported on the basis of the Generation Order read with the Regulation Order. The company's conduct throughout has been relied on to show that till the year 1980, no challenge was made to the assessment made and the direction issued by the Divisional Engineer under clause 3 of the Generation Order. The petition is said to be inordinately delayed for challenging the orders made in the year 1975. The remedy available under clause 6 of the Generation Order for determination of the dispute by the Electrical Adviser and the Chief Electrical Inspector to the Government is pointed out as an alternative remedy for refusing any relief under Article 226 of the Constitution. The invalidity attributed to clause 3 of the Generation Order by the petitioners is denied. The State Government (respondent No.2) has taken interest only to oppose the challenge made to the validity of clause 3 of the Generation Order. Even at the hearing before us, the learned Advocate General addressed us only on this point, stating that the rest was the concern of the State Electricity Board. 9. While raising the preliminary objection on the ground of existence of an alternative remedy, Shri Dharmadhikari, learned counsel for the Board did not dispute that the question of vires of clause 3 of the Generation Order has to be decided is this petition, since that question cannot be determined by the Electrical Adviser and the Chief Electrical Inspector to the Government. Shri S.S. Ray, learned counsel for the petitioners, in addition to contending that there was in reality no such altern3tive remedy available to the petitioners, added that even if it be so, it is not an absolute bar to entertaining the writ petition and the facts of this case justify our deciding the case on merits instead of referring the petitioners to the remedy under clause 6 of the Generation Order Shri Dharmadhikari also placed all the facts before us to support his contention that even on merits the petitioner's claim is unsustainable. In short, both sides addressed us at length on merits of the case and for One reason or the other, invited us to decide the controversy on merits Consequently, we have formed the opinion that it would be better to decide the controversy on merits in this petition instead of directing the petitioners to seek recourse to the alternative remedy under clause 6 of the Generation Order, assuming it to be available, in order to curtail litigation and avoid any further delay in decision of the dispute. Before dealing with the merits of the case, be shall dispose of the points pertaining to vires of clause 3 of the Generation Order raised by the petitioners. The question of delay, laches etc. shall be dealt with thereafter, while dealing with the merits. Validity of clause 3 of the Generation Order 10. The first question for consideration is whether clause 3 of the Generation Order is unconstitutional and ultra vires section 22-B of the Indian Electricity Act, 1910. The relevant provisions may now be quoted. Section 22-B of the Indian Electricity Act is as under:- "22-B. Power to control the distribution and consumption of energy.- (1) If the State Government is of opinion that it is necessary or expedient so to do, for maintaining the supply and securing the equitable distribution of energy, it may by order provide for regulating the supply, distribution, consumption or use thereof. (2) without prejudice to the generality of the powers conferred by sub-section (1) an order made thereunder may direct the licenssee not to comply, except with the permission of the State Government, with; (i) the provisions of any contract, agreement or requisition whether made before or after the commencement of the Indian Electricity (Amendment) Act, 1959, for the supply (other than the resumption of a supply) or an increase in the supply of energy to any person; or (ii) any requisition for the resumption of supply of energy to a consumer after a period of six months, from the date of its discontinuance; or (iii) any requisition for the resumption of supply of energy made within six months of its discontinuance, where the requisitioning consumer was not himself the consumer of the supply at the time of its discontinuance." Clause 3 of the M.P. Electricity Generation, Control and Consumption Orders, 1975, the validity of which bas to be examined, is as under:- "3. Any consumer who is receiving electrical energy from the Board and also has an alternative source of generation of power by his own generating set, may be required by the respective Divisional Engineer of the board having jurisdiction to generate electricity from his set (or sets) to the maximum extent technically feasible in the opinion of the Divisional Engineer and the Board's supply of electrical energy to such consumer shall be reduced to the extent of additional generation assessed as feasible by the Divisional Engineer: Provided that- (i) Before assessing the additional generation feasible and directing the consumer accordingly, the Divisional Engineer shall consult the local Manager or Engineer in charge of the set; (ii) the Board shall, during the period such a direction is in force, reduce the contract demand of the consumer to a corresponding extent; and (iii) if due to an emergency outage, which in the opinion of the Divisional Engineer of the Board having jurisdiction is not due to any negligence or failure of those responsible for maintaining and running the set, there is reduction in additional generation, or if in the opinion of the Divisional Engineer, the set has to be taken out for maintenance during the period of such emergency or' maintenance outage, the Board shall try its best to make good the reduction to the consumer, levying an appropriate charge for it," 11. The attack to the validity of clause 3 of the Generation Order is mainly on the ground that there are no guidelines therein for assessment of the generating capacity of the alternative source of generation and, therefore, unfettered powers are conferred on the Divisional Engineer, who bas to act thereunder. It is urged that the conferment of such arbitrary powers violates Article 14 of the Constitution and such a restriction not being reasonable is violative also of Article 19 (1) (g). It is also contended that the statute does not permit the State Government, which is itself a delegate, to further delegate this authority given by section 22-B, to the Divisional Engineer and this further delegation, therefore, is impermissible. Shri Ray contended that there would be no vice in the provision, if the State Government had not totally effaced itself and retained power under clause 3 to itself confirm or modify the preparatory work of assessment done by the Divisional Engineer so that the assessment of the generating capacity of the alternative source was really of the State Government and not of the Divisional Engineer. l2. In reply, the learned Advocate General appearing for the State, relied on the return of the State Government at pages 250 and 251 of the Paper Book to contend that the expression 'technically feasible' used in clause 3 of the Generation Order has to be read as taking into account the individual characteristics of a generating set and the local conditions while making the assessment and these factors being implicit in the expression 'technically feasible', there are sufficient guide lines for the exercise of the power and there is no element of arbitrariness therein. The learned Advocate General also referred to proviso (i) contained in clause 3, which says that the Divisional Engineer shall consult the local Manager or Engineer in charge of the set before assessing the additional generation feasible and directing the consumer accordingly. He argued that this requirement of consultation ensures that the D.E. would be made aware of the relevant factors pertaining to the generating set for being taken into account before making the assessment. According to the learned Advocate General, this is sufficient to exclude any suggestion of arbitrariness in the exercise of the power. He argued that this requirement of consultation ensures that the D.E. would be made aware of the relevant factors pertaining to the generating set for being taken into account before making the assessment. According to the learned Advocate General, this is sufficient to exclude any suggestion of arbitrariness in the exercise of the power. It was also contended that there is no delegation of any essential legislative function by the State Government to the Divisional Engineer who has only been authorised by clause 3 to work out the details, the essential things having already been provided in clause 3. Shri Dharmadhikari, learned counsel appearing for the Board, took a slightly different stand and contended that the expression 'technically feasible' occurring in clause 3, is itself sufficient to furnish guidelines and no other factor suggested in the return of the State Government is necessary for this purpose. According to him, the requirement is of finding out the maximum technical feasibility of the alternative source of generation and not what is necessarily practicable under the circumstances. 13. In our opinion, Shri Ray's contention that clause 3 of the Generation Order is ultra vires section 22-B of the Indian Electricity Act and for is unconstitutional cannot be accepted. Section 22-B of the Indian electricity Act empowers the State Government to make orders providing for regulating the supply, distribution, consumption or use of energy for maintenance of supply and securing its equitable distribution if the State Government is of opinion that it is necessary or expedient so to do. The formation of the State Government's opinion of the existence of the necessary conditions and directing the exercise of his power are rightly not disputed, in view of the admittedly acute power shortage during the relevant time. The State Government's power to impose rationing of the energy when the demand is far in excess of supply, by issuing orders under this provision is not in dispute. The real question therefore is whether, in clause 3 of the Generation Order any essential function entrusted to the State Government by section 22-B has been unauthorisedly further delegated by it to the Divisional Engineer. The real question therefore is whether, in clause 3 of the Generation Order any essential function entrusted to the State Government by section 22-B has been unauthorisedly further delegated by it to the Divisional Engineer. This brings us to the question whether clause 3 empowers the Divisional Engineer to discharge any essential function in this connection or he has only been entrusted with the duty of implementing the policy laid down by the State Government in this Order for maintenance of supply and securing its equitable distribution. It is in this light that the contents of clause 3 have to be examined. 14. The main enacting part of clause 3 says that any consumer receiving electrical energy from the Board and also having an alternative source of generation of power of his own, is to be directed by the Divisional Engineer to generate electricity from his set to the maximum extent technically feasible' in his opinion, and the power supplied to the consumer shall be reduced to the extent of additional generation assessed as feasible by the Divisional Engineer. In other words, the policy laid down by the State Government is that a consumer having his own source of generating power should be required to tap it to the maximum extent technically feasible and to the extent power is available to him from the alternative source, the Board's supply of power should be reduced. There can be no doubt that requiring a consumer to reduce his intake of power from the Board's supply to the extent he can generate power from his own generating set is a very reasonable course to adopt during the period of power shortage. The State Government having itself provided for this essential thing in clause 3, the only remaining part pertaining to its implementation after working out the details has been left to the Divisional Engineer for obvious reasons. For implementation of this decision of the State Government, taken in exercise of its power under section 22-B, the only requirement is finding out the generating capacity of the alternative source belonging to such a consumer. This matter of detail required for implementation of the State Government's decision has necessarily to be left to an expert in the filed. For implementation of this decision of the State Government, taken in exercise of its power under section 22-B, the only requirement is finding out the generating capacity of the alternative source belonging to such a consumer. This matter of detail required for implementation of the State Government's decision has necessarily to be left to an expert in the filed. This assessment cannot also be treated as an essential legislative function required to be discharged by the State Government itself inasmuch as it is only a data required to be filed in the formula laid down by the State Government in clause 3. The generating capacity of the alternative source available to different such consumers being variable, this non-essential function had necessarily to be left for determination in each individual case to an expert and this does not amount to further delegation of an essential function by the State Government to the Divisional Engineer. Clause 3 does not leave any discretion, much less unfettered discretion on any essential feature to either the Divisional Engineer or any other officer or the Board itself, as it provides for reduction of Board's supply of the power to any such consumer to the extent the consumer has his own source of generating power. Clause 3 of the Generation Order does not, therefore, suffer from the vice of impermissible delegation of an essential function by the State Government in favour of the Divisional Engineer and it is therefore not ultra vires section 22- B of the Indian Electricity Act. 15. Clause 3 is also not unconstitutional as contended by Shri Ray. The expression to the maximum extent technically feasible provides sufficient guidelines to exclude any arbitrariness in making assessment of the generating capacity of the alternative source of generation of power. Proviso (i) also requires the Divisional Engineer to consult the local manager or Engineer in charge of the set before making the assessment. It is, therefore, clear from clause 3 itself that the a5sessment to be made by the Divisional Engineer is of the maximum generating capacity 'technically feasible' of the generating set, after consulting the local Manager or Engineer in charge of the set. The requirement of consultation is obviously for the purpose of knowing the individual characteristics of the generating set and any significant local condition which may be relevant for assessing the generating capacity of the set. The requirement of consultation is obviously for the purpose of knowing the individual characteristics of the generating set and any significant local condition which may be relevant for assessing the generating capacity of the set. It is, therefore, clear from the provision itself that assessment has to be made of the maximum generation technically feasible from the generating set, taking into account the relevant factors pointed out by the local Manager or the Engineer in charge of the set, who is expected to know the individual characteristics of the set. The expression 'technically feasible' coupled with the requirement of consultation with the local Manager or the Engineer in charge of the set in order to know the individual characteristics of the set provides sufficient guidelines for making the assessment and excludes any element of arbitrariness therein. No further details are necessary to furnish necessary guidelines for making assessment: The factors enumerated in the return of the State Government at pages 250 and 251 of the Paper Book, to which reference was made by the learned Advocate General do not constitute any additional requirements and are merely illustrative to indicate their relevance in a given case. In our opinion it is not necessary to read them as additional requirements, since the expression 'technically feasible' used in clause 3 with the requirement of prior consultation with the local Manager or Engineer in charge of the set mentioned in proviso (i) therein, provides sufficient guidelines to regulate the assessment and exclude any element of arbitrariness therein. In this connection, clause 6 of the Generation Order is also relevant, which provides a machinery for deciding any dispute raised by the consumer to the assessment made by the Divisional Engineer under clauses 3 and 4. Obviously, in deciding a dispute under clause 6, the Electrical Advisor and the Chief Electrical Inspector is required to re-examine whether the assessment made by the Divisional Engineer is technically feasible in a particular case. Keeping in view the factors given out by the local Manager or the Engineer in charge of the set, during consultation with him. The provision for resolving the dispute in such a manner contained in clause 6 also negatives the argument of conferring arbitrary powers on the Divisional Engineer under clause 3. 16. Keeping in view the factors given out by the local Manager or the Engineer in charge of the set, during consultation with him. The provision for resolving the dispute in such a manner contained in clause 6 also negatives the argument of conferring arbitrary powers on the Divisional Engineer under clause 3. 16. As earlier stated, the function of the Divisional Engineer under clause 3 is merely to quantify the variable data, namely, the maximum generating capacity technically feasible of the consumer's alternative source of power; and to direct the consumer to generate power to that extent leading automatically to the result that the Board's supply to the consumer is reduced to the corresponding extent during the operation of such a direction. There is no effacement of the State Government in the matter of regulating the supply or securing equitable distribution while making such a provision as the essential function having been performed under clause 3 by the State Government itself, the quantification of a variable data and implementation of the decision of the State Government is alone left to the Divisional Engineer and the Board. Shri Ray's suggestion that the final authority for confirming or modifying the assessment made by the Divisional Engineer should have been retained by the State Government in each case is difficult to accept, in as much as, having laid down the policy or principle necessary for the purpose of section 22-B, its implementation had to be left to the Board and its officers. Clause 3 of the Generation Order is therefore, neither arbitrary nor unreasonable to be unconstitutional nor is it ultra vires section 22-B of the Indian Electricity Act, 1910. The challenge to its validity is rejected. Alternative Remedy 17. The Board contended that clause 6 of the Generation Order provides for decision by the Electrical Supervisor and the Chief Electrical Inspector to the Government, of the dispute raised by a consumer to the assessment made and direction issued by the 'Divisional Engineer under clause 3 thereof. Without exhausting this remedy available to the petitioner, this petition has been filed and the Board's preliminary objection to the maintainability of this petition is on this ground. The objection is also supported on the basis of section 34 of the Arbitration Act, contending that clause 6 of the Generation" Order contains the necessary arbitration clause to attract section 34 of the Arbitration Act. The objection is also supported on the basis of section 34 of the Arbitration Act, contending that clause 6 of the Generation" Order contains the necessary arbitration clause to attract section 34 of the Arbitration Act. On behalf of the petitioners, it was contended that the assessment of the generating capacity of the alternative souree belonging to all such consumers including the petitioner, having been made by a committee headed by the Electrical Advisor and the Chief Electrical Inspector, which was adopted by the Divisional Engineer, there was a reasonable apprehension of bias in the Electrical Advisor and the Chief Electrical Inspector and, therefore, such a remedy was futile. Applicability of section 34 of the Arbitration Act was denied and it was contended that there being no effective alternative remedy available to the petitioner for the reasons given, it was not a fit case for refusing to entertain the writ petition on this ground. 18. No authority was cited before us to support the contention that section 34 of the Arbitration Act, in terms, applies even to a writ petition. In our opinion it is extremely doubtful that section 34 would, in terms be applicable to such a proceeding All the same, the existence of an arbitration agreement is relevant for deciding whether the discretionary power under Article 216 of the Constitution should be exercised in favour of a person to whom the alternative remedy of arbitration is available. Such a provision cannot be treated as an absolute bar to the maintenance of a writ petition. The remedy provided in clause 6 of the Generation Order can be taken into account only to determine whether the remedy provided therein is sufficient in the present case to refuse to entertain the writ petition. 19. Shri Ray, Teamed counsel for the petitioners, took us through the entire correspondence between the parties, which is the basic material for deciding the case on merits, and invited us to give a decision on merits instead of directing the petitioners to the remedy under clause 6 of the Generation Order, after a lapse of several years, even if we reach the conclusion that this alternative remedy would nor be futile in the present case. In reply, Shri Y.S. Dharmadhikari, learned counsel for the Board, inspite of raising this preliminary objection, addressed us also on the merits and contended that a perusal of the entire correspondence between the parties clearly shows that the petitioners have no case even on merits. In other words, Shri Dharmadhikari also invited our decision on merits, saying that the entire material in the shape of documents being present on record and both sides having addressed us at length on merits, it would be proper to give a decision on merits instead of further delaying the decision of the controversy for some more years. The ultimate stand taken by both sides, therefore, is of seeking decision on merits on the ground that the material present on the record is sufficient for the purpose. to view of this position emerging at the hearing, the question of existence of alternative remedy under clause 6 of the Generation Order ceases to be of any practical consequence in the present case and we propose to decide the controversy on merits instead of leaving the same for decision under clause 6 of the Generation Order, unless any part of the controversy requires any further investigation for which the alternative remedy is more suitable. Failure to resort to the available alternative remedy before invoking the High Court's jurisdiction under Article 226 of the Constitution, is not an absolute bar to exercise of the power under Article 226 of the Constitution and is merely a circumstance enabling the High Court to refuse exercise of this extraordinary and discretionary power, if the facts of the case so require. This is the settled position in law and it is unnecessary to refer to the several decisions cited at the hearing on this point. In view of the conclusion reached by us on this point, it is also unnecessary to deal with the reasons given• by Shri Ray for not directing the petitioners to resort to the alternative remedy, in the facts of the present case. Inordinate Delay/Laches/Acquiescence 20. Another objection taken by the Board is based on the petitioners' conduct, disclosing the petitioners' laches or acquiescence or at any rate inordinate delay in making the challenge. Shri Dharmadhikari, learned counsel for the Board, contended that the petitioners' grievance is basically against the order dated 17-5-1975 and the petition was filed more than six years thereafter on 6-8-1981. Another objection taken by the Board is based on the petitioners' conduct, disclosing the petitioners' laches or acquiescence or at any rate inordinate delay in making the challenge. Shri Dharmadhikari, learned counsel for the Board, contended that the petitioners' grievance is basically against the order dated 17-5-1975 and the petition was filed more than six years thereafter on 6-8-1981. He argues that the impugned order dated 17-5-1975 was acted upon throughout and the petitioners raised the first challenge to it only by letter dated 15-9-1980 and at no time prior to it. Accordingly, it is urged that the petitioners' challenge is a clear after-thought and the petitioners are not entitled to the relief claimed on this ground as well. Shri Ray's reply on behalf of the petitioners is that the petitioners ventilated their grievance from the very outset and challenged the validity of the impugned orders on account of which the Board itself did not implement the impugned orders till issuing their letter dated 5•8-1980; and immediately thereafter the petitioners took steps to challenge the impugned orders. Shri Ray relied on the documents collectively marked Annexure P and appearing at pages 137 to 156 of the Paper Book, to show that the ceiling limit for drawing power from the Boards supply was fixed under the Regulation Order for the period between. 17-5-1975 and 1-5-1980 indicating that the basic order dated 17-5-1975 was not acted upon till issuance of the order dated 5-8-1980. The foundation of the rival contentions on this point is based on the conduct of the parties emerging from the correspondence between them and the facts beyond controversy. As we shall show hereafter, the petitioner-company's conduct clearly shows that the challenge made in this petition is a clear after thought to avoid a liability which was accepted and never disputed atleast till the year 1980. Petitioners' acquiescence is too obvious to admit of any doubt. Its effect shall be staled later. Validity of the order dated 17-5-1975 (Annexure H) and order dated 10-10-1975 (Annexure O) 21. It is under this heading that the entire correspondence which is material for the demand upto 31-7-1980, would be considered. The conduct of the parties also would be covered herein. It any be mentioned that for the period ending on 11-11-1979, there is no dispute and the dispute is only for the period commencing on 12-11-1979. It is under this heading that the entire correspondence which is material for the demand upto 31-7-1980, would be considered. The conduct of the parties also would be covered herein. It any be mentioned that for the period ending on 11-11-1979, there is no dispute and the dispute is only for the period commencing on 12-11-1979. The period between 12-11-1979 and 31-7-1980 is covered by the aforesaid orders. The period beginning on 1-8-1980 is covered by the subsequent order dated 13-10-1980 (Annexure U), which will be dealt with separately. 22. By order (Annexure H) dated 17-5-1975, the concerned D.E. of the Board informed the petitioner-company that the additional generation technically feasible from the sets installed and run by the company had been assessed at 2700 k.w. after consulting the company's representative; and the company was therefore, directed to generate additional electricity to the extent of 2500 k.w. from its sets with effect from the date of this direction. It was further stated therein that the contract demand for supply of electricity to the petitioner company was, accordingly, reduced to nil from the date of the direction. Apparently this was a direction issued under clause 3 of the Generation Order and the contract demand to which the company was entitled at that time being only 2500 k.w., it was reduced to nil as a result of the direction to generate 2500 k.w. from the company's generating set, the additional generation technically feasible from it having been assessed at 2700 k.w. is consultation with the company's representative. The reply on behalf of the company to this direction of the Divisional Engineer was given by letter dated 21-5-1975, wherein it was stated that the actual generation feasible at that time was only 1800 k.w. but it was not advisable to generate more than 1200 k.w. in the existing conditions. It was added that this was only due to steam limitation and once the boiler under erection starts steaming, generation could be enhanced to the full installed capacity. It may be mentioned that the full installed capacity of the company's generating sets was far in excess of 25o0 k.w. which was required to be generated, according to the Divisional Engineer's direction under clause 3 of the Generation Order. The next document is the company's letter dated 30-5-1975, addressed to the concerned Superintending Engineer of the Board. It may be mentioned that the full installed capacity of the company's generating sets was far in excess of 25o0 k.w. which was required to be generated, according to the Divisional Engineer's direction under clause 3 of the Generation Order. The next document is the company's letter dated 30-5-1975, addressed to the concerned Superintending Engineer of the Board. It was expressly stated therein that as directed, the company had started generating 2000 k.w. from its generating set from 30-3-1975 in order to meet the power shortage in the State. It was then stated that the coal consumption of the petitioner-company had increased for this reason and accordingly a request was made to the Board to recommend to the authorities at New Delhi for allotment of additional coal to the company to meet its demand. There was thus a clear admission of generating at least 2000 k.w. from its own generating set from 30-3-1975 in obedience to the direction given by the Divisional Engineer under clause 3 of the Generation Order and there was absolutely no challenge made to the Divisional Engineer's authority to issue such a direction or to the validity thereof. ORDER J.S. Verma, J. 1. The petitioner No. 1, Jiyajeerao Cotton Mills Ltd. is an existing company within the meaning of the Companies Act, 1956, and having its registered office at Birlanagar, Gwalior, in the State of Madhya Pradesh Petitioner No.2, Jal Narain Somani, is a share holder of this company. The petitioner No. 1 (hereinafter called 'the Company') has a composite textile mill at Birlanagar, Gwalior, wherein it manufactures yarn and textiles. For running its mill the company requires electricity and had entered into a contract with respondent No. 1, M.P. Electricity Board (thereinafter called 'the Board') for supply of electricity to it in accordance with specified terms and conditions. Under the agreement dated 27-10-1971, between the company and the Board, 1500 k.w. power as an H.T. coasumer, was to be supplied by the Board to the Company and the agreement was to commence Com the date reckoned according to the stipulation therein. Supply of 1500 k.w. power under this agreement commenced with effect from 3-3-1972. The agreement was latter modified mentioning therein that an additional 1000 k.w. power was to be supplied with effect from 1.11.1973. Supply of 1500 k.w. power under this agreement commenced with effect from 3-3-1972. The agreement was latter modified mentioning therein that an additional 1000 k.w. power was to be supplied with effect from 1.11.1973. The result was that under this agreement, the company was to be supplied 1500 k.w.+1000 k.w.=2500 k.w. with effect from 1.11.1973. This contractual position between the Company and the B0ard carne to be further modified by two agreements dated 11-7-1979 and 26-2-1980, under which an addition of 800 k.w. and 190 k.w. respectively was made to the earlier quantity of 2500 k.w. thereby increasing the total contract demand first to 3300 k.w. and ultimately to 3490 k.w. per month. 2. Section 22-B of the Indian Electricity Act, 1910, gives power to the State Government to issue orders providing for regulating the supply, distribution consumption or use of electrical energy for maintaining its supply and securing its equitable distribution. An order issued by the State Government under this provision supersedes the contractual obligation of the licensee (State Electricity Board) under any contract with the consumer for supply of electrical energy. The State of Madhya Pradesh issued two orders on 4-4-1973 under section 22-B of the Indian Electricity Act, called the 'Madhya Pradesh Electricity Supply and Consumption Regulation Order, 1975' (Annexure E) (hereinafter called the 'Regulation Order') and the M.P. Electricity Generation, Control and Consumption Order, 1975 (Annexure G) (hereinafter called the Generation Order'). Both these orders came into force on 7-4-1975. The Regulation Order was amended from time to time, retaining its basic characteristics. These orders were admittedly made by the State Government for meeting the acute power shortage in the State with a view to maintaining the supply of electrical energy and securing its equitable distribution amongst the consumers. In brief, the Generation Order was issued to compel any consumer who also had an alternative source of generating power of his own to generate electricity from his set to the maximum extent technically feasible and to reduce the Board's supply under the contract with him to the extent of this additional generation available to him from the alternative source. The Generation Order, therefore, applied only to the consumers who had their own alternative source of generating power. The Generation Order, therefore, applied only to the consumers who had their own alternative source of generating power. The Regulation Order enabled rationing of the available electrical energy between the consumers for ensuring equitable distribution by fixing the ceiling upto which alone a consumer was entitled to draw electricity at normal tariff and providing for the charging at penal rate any consumption in excess of the ceiling fixed, in addition to conferring power to disconnect supply for violations made by the consumer. 3. When the aforesaid two orders came into force on 7-4-1975, the Company was entitled to draw power upto 2500 k.w. from the Board's supply under the contract, as earlier stated. The company admittedly had an alternative source of generating power and, therefore, the Generation Order also was applicable to it, in addition to the Regulation Order. The total installed capacity of the company's generating set was 9800 k.w. but according to the company itself the actual maximum generation was between 4500 and 5000 k.w. depending upon the availability of steam. It is clear that unless the power generated from the alternative source owned by the company fell short of the contractual demand, under the Generation Order, the Company was not entitled to draw any power from the Board under the contract. The dispute in this petition is mainly with regard to the Board's demand for payment of the electrical energy consumed during certain period by the company at penal rate by virtue of the Generation Order and the Regulation Order. The company, on the other hand, claims that it is not liable to pay any such penal charges. The various arguments advanced are in support of the rival contentions. 4. For the period of more than four years upto 11-11-1979, the Board has not demanded any penal charges from the company and whatever charge has been recovered by the Board for supply of power has not been disputed by the Company. The dispute between the parties is with regard to the period commencing from 12-11-1979. 4. For the period of more than four years upto 11-11-1979, the Board has not demanded any penal charges from the company and whatever charge has been recovered by the Board for supply of power has not been disputed by the Company. The dispute between the parties is with regard to the period commencing from 12-11-1979. For the period between 12-11-1979 and 31-7-1989 the entire quantity of power drawn by the company from the Board ha, been charged at the penal rate on the ground that the contractual obligation was reduced to nil by virtue of the Generation Order, since the alternative source of power belonging to the company covered the entire contractual demand of 2500 k.w. The excess amount claimed by the Board from the company on account of higher tariff, according to the penal rate, comes to Rs.76,51,379.87. For the period between 1.8.1980 and 30-6-1981, the Board took into account the increase in contractual obligation from 2500 k.w. to 3490 k.w. i.e., additional 990 k.ws. as well as the Company's request for some extra power on account of difficulty in generating from its own set and, therefore, gave to the company the benefit of supply of 1250 k.ws. under the contract in accordance with the Generation Order. This quantity of 1250 k.ws. reduced from the contractual demand of 3490 k.ws. under the Generation Order, has been curtailed according to the formula given in the Regulation Order and this reduced quantity has been treated as the ceiling limit for supply of power by the Board to the Company at normal tariff while any quantity consumed in excess thereof has been charged at the penal rate. For this period between 1-8-1980 and 30-6-1981, the unpaid balance remaining due from the company under the bills issued, amounts to Rs.1,04,46,501.10. Thus, for these two periods from 12-11-1979 to 31-7-1980 and 1-8-1980 to 30-6-1981, the amount of Rs.76,51,379.87 + Rs.1,04,46,501.10= Rs.1,80,97,880.97 remained unpaid by the company to the Board against the hills issued for the period and the challenge in this petition is mainly to this demand. 5. This petition was filed on 6-8-1981 and by virtue of the stay order dated 7-8-1981, the status quo ordered there by continues. 6. 5. This petition was filed on 6-8-1981 and by virtue of the stay order dated 7-8-1981, the status quo ordered there by continues. 6. Briefly stated, the petitioners' case on merits is that there has been no valid assessment of the generating capacity of the Company's generating set so as to permit any reduction in the contractual demand by virtue of the Generation Order and that, at any rate, such assessment even it made, was never acted upon for the period ending on 11-11-1979; and, therefore, unless a valid assessment is now made under clause 3 of the Generation Order, determining the capacity of the alternative source of generation, there can be no reduction in the contractual obligation under the Generation Order. The petitioner claims that the bills issued by the Board for the period commencing from 12-11-1979 on the basis of powers given under the Generation Order and the Regulation Order, charging at the penal rate, are invalid. It is also claims that clause 3 of the Generation Order is ultra vires section 22-B of the Indian Electricity Act and unconstitutional being violatives of Articles 14 and 19 (1) (g) of the Constitution. Validity of clause 3 of the Generation Order is also attacked on the ground of impermissible delegation of essential legislative powers. 7. The relief claimed in the petition, as summarised by the learned counsel for the petitioners at the hearing, is for quashing the Board's Orders dated 17-5-1975 (Annexure H), 10-10-1975 (Annexure O), 5-8-1980 (Annexure T), 13-10-1980 (Annexure U), the bills for the total amount of Rs.1,80,91,880.97 for the periods between 12-11-1979 and 30-6-1981; a direction for making fresh calculation and adjustment in accordance with law, which would include the question of refund of any excess payment made by the petitioner; and quashing of the blanket prohibition against supply of power during emergency under clause 3, proviso (iii), of the Generation Order contained in the orders dated 13-10-1980 and 25-7-1981. 8. 8. In reply, the case of the M.P. Electricity Board (respondent No. 1) is that the necessary assessment was made and directions issued to the company for generating 2,500 k.w. of electricity from its generating set under clause 3 of the Generation Order with the result that the contractual obligation to supply power was reduced to this extent and it was nil when the entire contractual obligation was to supply only 2,500 k.w., the supply of power upto 11-11-1979 was only during emergency covered by clause 3, proviso (iii) of the Generation Order and hot because the direction given under clause 3 of the Generation Order reducing the contractual obligation was not acted upon. The bills issued at penal rate for excess consumption are supported on the basis of the Generation Order read with the Regulation Order. The company's conduct throughout has been relied on to show that till the year 1980, no challenge was made to the assessment made and the direction issued by the Divisional Engineer under clause 3 of the Generation Order. The petition is said to be inordinately delayed for challenging the orders made in the year 1975. The remedy available under clause 6 of the Generation Order for determination of the dispute by the Electrical Adviser and the Chief Electrical Inspector to the Government is pointed out as an alternative remedy for refusing any relief under Article 226 of the Constitution. The invalidity attributed to clause 3 of the Generation Order by the petitioners is denied. The State Government (respondent No.2) has taken interest only to oppose the challenge made to the validity of clause 3 of the Generation Order. Even at the hearing before us, the learned Advocate General addressed us only on this point, stating that the rest was the concern of the State Electricity Board. 9. While raising the preliminary objection on the ground of existence of an alternative remedy, Shri Dharmadhikari, learned counsel for the Board did not dispute that the question of vires of clause 3 of the Generation Order has to be decided is this petition, since that question cannot be determined by the Electrical Adviser and the Chief Electrical Inspector to the Government. Shri S.S. Ray, learned counsel for the petitioners, in addition to contending that there was in reality no such altern3tive remedy available to the petitioners, added that even if it be so, it is not an absolute bar to entertaining the writ petition and the facts of this case justify our deciding the case on merits instead of referring the petitioners to the remedy under clause 6 of the Generation Order Shri Dharmadhikari also placed all the facts before us to support his contention that even on merits the petitioner's claim is unsustainable. In short, both sides addressed us at length on merits of the case and for One reason or the other, invited us to decide the controversy on merits Consequently, we have formed the opinion that it would be better to decide the controversy on merits in this petition instead of directing the petitioners to seek recourse to the alternative remedy under clause 6 of the Generation Order, assuming it to be available, in order to curtail litigation and avoid any further delay in decision of the dispute. Before dealing with the merits of the case, be shall dispose of the points pertaining to vires of clause 3 of the Generation Order raised by the petitioners. The question of delay, laches etc. shall be dealt with thereafter, while dealing with the merits. Validity of clause 3 of the Generation Order 10. The first question for consideration is whether clause 3 of the Generation Order is unconstitutional and ultra vires section 22-B of the Indian Electricity Act, 1910. The relevant provisions may now be quoted. Section 22-B of the Indian Electricity Act is as under:- "22-B. Power to control the distribution and consumption of energy.- (1) If the State Government is of opinion that it is necessary or expedient so to do, for maintaining the supply and securing the equitable distribution of energy, it may by order provide for regulating the supply, distribution, consumption or use thereof. (2) without prejudice to the generality of the powers conferred by sub-section (1) an order made thereunder may direct the licenssee not to comply, except with the permission of the State Government, with; (i) the provisions of any contract, agreement or requisition whether made before or after the commencement of the Indian Electricity (Amendment) Act, 1959, for the supply (other than the resumption of a supply) or an increase in the supply of energy to any person; or (ii) any requisition for the resumption of supply of energy to a consumer after a period of six months, from the date of its discontinuance; or (iii) any requisition for the resumption of supply of energy made within six months of its discontinuance, where the requisitioning consumer was not himself the consumer of the supply at the time of its discontinuance." Clause 3 of the M.P. Electricity Generation, Control and Consumption Orders, 1975, the validity of which bas to be examined, is as under:- "3. Any consumer who is receiving electrical energy from the Board and also has an alternative source of generation of power by his own generating set, may be required by the respective Divisional Engineer of the board having jurisdiction to generate electricity from his set (or sets) to the maximum extent technically feasible in the opinion of the Divisional Engineer and the Board's supply of electrical energy to such consumer shall be reduced to the extent of additional generation assessed as feasible by the Divisional Engineer: Provided that- (i) Before assessing the additional generation feasible and directing the consumer accordingly, the Divisional Engineer shall consult the local Manager or Engineer in charge of the set; (ii) the Board shall, during the period such a direction is in force, reduce the contract demand of the consumer to a corresponding extent; and (iii) if due to an emergency outage, which in the opinion of the Divisional Engineer of the Board having jurisdiction is not due to any negligence or failure of those responsible for maintaining and running the set, there is reduction in additional generation, or if in the opinion of the Divisional Engineer, the set has to be taken out for maintenance during the period of such emergency or' maintenance outage, the Board shall try its best to make good the reduction to the consumer, levying an appropriate charge for it," 11. The attack to the validity of clause 3 of the Generation Order is mainly on the ground that there are no guidelines therein for assessment of the generating capacity of the alternative source of generation and, therefore, unfettered powers are conferred on the Divisional Engineer, who bas to act thereunder. It is urged that the conferment of such arbitrary powers violates Article 14 of the Constitution and such a restriction not being reasonable is violative also of Article 19 (1) (g). It is also contended that the statute does not permit the State Government, which is itself a delegate, to further delegate this authority given by section 22-B, to the Divisional Engineer and this further delegation, therefore, is impermissible. Shri Ray contended that there would be no vice in the provision, if the State Government had not totally effaced itself and retained power under clause 3 to itself confirm or modify the preparatory work of assessment done by the Divisional Engineer so that the assessment of the generating capacity of the alternative source was really of the State Government and not of the Divisional Engineer. l2. In reply, the learned Advocate General appearing for the State, relied on the return of the State Government at pages 250 and 251 of the Paper Book to contend that the expression 'technically feasible' used in clause 3 of the Generation Order has to be read as taking into account the individual characteristics of a generating set and the local conditions while making the assessment and these factors being implicit in the expression 'technically feasible', there are sufficient guide lines for the exercise of the power and there is no element of arbitrariness therein. The learned Advocate General also referred to proviso (i) contained in clause 3, which says that the Divisional Engineer shall consult the local Manager or Engineer in charge of the set before assessing the additional generation feasible and directing the consumer accordingly. He argued that this requirement of consultation ensures that the D.E. would be made aware of the relevant factors pertaining to the generating set for being taken into account before making the assessment. According to the learned Advocate General, this is sufficient to exclude any suggestion of arbitrariness in the exercise of the power. He argued that this requirement of consultation ensures that the D.E. would be made aware of the relevant factors pertaining to the generating set for being taken into account before making the assessment. According to the learned Advocate General, this is sufficient to exclude any suggestion of arbitrariness in the exercise of the power. It was also contended that there is no delegation of any essential legislative function by the State Government to the Divisional Engineer who has only been authorised by clause 3 to work out the details, the essential things having already been provided in clause 3. Shri Dharmadhikari, learned counsel appearing for the Board, took a slightly different stand and contended that the expression 'technically feasible' occurring in clause 3, is itself sufficient to furnish guidelines and no other factor suggested in the return of the State Government is necessary for this purpose. According to him, the requirement is of finding out the maximum technical feasibility of the alternative source of generation and not what is necessarily practicable under the circumstances. 13. In our opinion, Shri Ray's contention that clause 3 of the Generation Order is ultra vires section 22-B of the Indian Electricity Act and for is unconstitutional cannot be accepted. Section 22-B of the Indian electricity Act empowers the State Government to make orders providing for regulating the supply, distribution, consumption or use of energy for maintenance of supply and securing its equitable distribution if the State Government is of opinion that it is necessary or expedient so to do. The formation of the State Government's opinion of the existence of the necessary conditions and directing the exercise of his power are rightly not disputed, in view of the admittedly acute power shortage during the relevant time. The State Government's power to impose rationing of the energy when the demand is far in excess of supply, by issuing orders under this provision is not in dispute. The real question therefore is whether, in clause 3 of the Generation Order any essential function entrusted to the State Government by section 22-B has been unauthorisedly further delegated by it to the Divisional Engineer. The real question therefore is whether, in clause 3 of the Generation Order any essential function entrusted to the State Government by section 22-B has been unauthorisedly further delegated by it to the Divisional Engineer. This brings us to the question whether clause 3 empowers the Divisional Engineer to discharge any essential function in this connection or he has only been entrusted with the duty of implementing the policy laid down by the State Government in this Order for maintenance of supply and securing its equitable distribution. It is in this light that the contents of clause 3 have to be examined. 14. The main enacting part of clause 3 says that any consumer receiving electrical energy from the Board and also having an alternative source of generation of power of his own, is to be directed by the Divisional Engineer to generate electricity from his set to the maximum extent technically feasible' in his opinion, and the power supplied to the consumer shall be reduced to the extent of additional generation assessed as feasible by the Divisional Engineer. In other words, the policy laid down by the State Government is that a consumer having his own source of generating power should be required to tap it to the maximum extent technically feasible and to the extent power is available to him from the alternative source, the Board's supply of power should be reduced. There can be no doubt that requiring a consumer to reduce his intake of power from the Board's supply to the extent he can generate power from his own generating set is a very reasonable course to adopt during the period of power shortage. The State Government having itself provided for this essential thing in clause 3, the only remaining part pertaining to its implementation after working out the details has been left to the Divisional Engineer for obvious reasons. For implementation of this decision of the State Government, taken in exercise of its power under section 22-B, the only requirement is finding out the generating capacity of the alternative source belonging to such a consumer. This matter of detail required for implementation of the State Government's decision has necessarily to be left to an expert in the filed. For implementation of this decision of the State Government, taken in exercise of its power under section 22-B, the only requirement is finding out the generating capacity of the alternative source belonging to such a consumer. This matter of detail required for implementation of the State Government's decision has necessarily to be left to an expert in the filed. This assessment cannot also be treated as an essential legislative function required to be discharged by the State Government itself inasmuch as it is only a data required to be filed in the formula laid down by the State Government in clause 3. The generating capacity of the alternative source available to different such consumers being variable, this non-essential function had necessarily to be left for determination in each individual case to an expert and this does not amount to further delegation of an essential function by the State Government to the Divisional Engineer. Clause 3 does not leave any discretion, much less unfettered discretion on any essential feature to either the Divisional Engineer or any other officer or the Board itself, as it provides for reduction of Board's supply of the power to any such consumer to the extent the consumer has his own source of generating power. Clause 3 of the Generation Order does not, therefore, suffer from the vice of impermissible delegation of an essential function by the State Government in favour of the Divisional Engineer and it is therefore not ultra vires section 22- B of the Indian Electricity Act. 15. Clause 3 is also not unconstitutional as contended by Shri Ray. The expression to the maximum extent technically feasible provides sufficient guidelines to exclude any arbitrariness in making assessment of the generating capacity of the alternative source of generation of power. Proviso (i) also requires the Divisional Engineer to consult the local manager or Engineer in charge of the set before making the assessment. It is, therefore, clear from clause 3 itself that the a5sessment to be made by the Divisional Engineer is of the maximum generating capacity 'technically feasible' of the generating set, after consulting the local Manager or Engineer in charge of the set. The requirement of consultation is obviously for the purpose of knowing the individual characteristics of the generating set and any significant local condition which may be relevant for assessing the generating capacity of the set. The requirement of consultation is obviously for the purpose of knowing the individual characteristics of the generating set and any significant local condition which may be relevant for assessing the generating capacity of the set. It is, therefore, clear from the provision itself that assessment has to be made of the maximum generation technically feasible from the generating set, taking into account the relevant factors pointed out by the local Manager or the Engineer in charge of the set, who is expected to know the individual characteristics of the set. The expression 'technically feasible' coupled with the requirement of consultation with the local Manager or the Engineer in charge of the set in order to know the individual characteristics of the set provides sufficient guidelines for making the assessment and excludes any element of arbitrariness therein. No further details are necessary to furnish necessary guidelines for making assessment: The factors enumerated in the return of the State Government at pages 250 and 251 of the Paper Book, to which reference was made by the learned Advocate General do not constitute any additional requirements and are merely illustrative to indicate their relevance in a given case. In our opinion it is not necessary to read them as additional requirements, since the expression 'technically feasible' used in clause 3 with the requirement of prior consultation with the local Manager or Engineer in charge of the set mentioned in proviso (i) therein, provides sufficient guidelines to regulate the assessment and exclude any element of arbitrariness therein. In this connection, clause 6 of the Generation Order is also relevant, which provides a machinery for deciding any dispute raised by the consumer to the assessment made by the Divisional Engineer under clauses 3 and 4. Obviously, in deciding a dispute under clause 6, the Electrical Advisor and the Chief Electrical Inspector is required to re-examine whether the assessment made by the Divisional Engineer is technically feasible in a particular case. Keeping in view the factors given out by the local Manager or the Engineer in charge of the set, during consultation with him. The provision for resolving the dispute in such a manner contained in clause 6 also negatives the argument of conferring arbitrary powers on the Divisional Engineer under clause 3. 16. Keeping in view the factors given out by the local Manager or the Engineer in charge of the set, during consultation with him. The provision for resolving the dispute in such a manner contained in clause 6 also negatives the argument of conferring arbitrary powers on the Divisional Engineer under clause 3. 16. As earlier stated, the function of the Divisional Engineer under clause 3 is merely to quantify the variable data, namely, the maximum generating capacity technically feasible of the consumer's alternative source of power; and to direct the consumer to generate power to that extent leading automatically to the result that the Board's supply to the consumer is reduced to the corresponding extent during the operation of such a direction. There is no effacement of the State Government in the matter of regulating the supply or securing equitable distribution while making such a provision as the essential function having been performed under clause 3 by the State Government itself, the quantification of a variable data and implementation of the decision of the State Government is alone left to the Divisional Engineer and the Board. Shri Ray's suggestion that the final authority for confirming or modifying the assessment made by the Divisional Engineer should have been retained by the State Government in each case is difficult to accept, in as much as, having laid down the policy or principle necessary for the purpose of section 22-B, its implementation had to be left to the Board and its officers. Clause 3 of the Generation Order is therefore, neither arbitrary nor unreasonable to be unconstitutional nor is it ultra vires section 22-B of the Indian Electricity Act, 1910. The challenge to its validity is rejected. Alternative Remedy 17. The Board contended that clause 6 of the Generation Order provides for decision by the Electrical Supervisor and the Chief Electrical Inspector to the Government, of the dispute raised by a consumer to the assessment made and direction issued by the 'Divisional Engineer under clause 3 thereof. Without exhausting this remedy available to the petitioner, this petition has been filed and the Board's preliminary objection to the maintainability of this petition is on this ground. The objection is also supported on the basis of section 34 of the Arbitration Act, contending that clause 6 of the Generation" Order contains the necessary arbitration clause to attract section 34 of the Arbitration Act. The objection is also supported on the basis of section 34 of the Arbitration Act, contending that clause 6 of the Generation" Order contains the necessary arbitration clause to attract section 34 of the Arbitration Act. On behalf of the petitioners, it was contended that the assessment of the generating capacity of the alternative souree belonging to all such consumers including the petitioner, having been made by a committee headed by the Electrical Advisor and the Chief Electrical Inspector, which was adopted by the Divisional Engineer, there was a reasonable apprehension of bias in the Electrical Advisor and the Chief Electrical Inspector and, therefore, such a remedy was futile. Applicability of section 34 of the Arbitration Act was denied and it was contended that there being no effective alternative remedy available to the petitioner for the reasons given, it was not a fit case for refusing to entertain the writ petition on this ground. 18. No authority was cited before us to support the contention that section 34 of the Arbitration Act, in terms, applies even to a writ petition. In our opinion it is extremely doubtful that section 34 would, in terms be applicable to such a proceeding All the same, the existence of an arbitration agreement is relevant for deciding whether the discretionary power under Article 216 of the Constitution should be exercised in favour of a person to whom the alternative remedy of arbitration is available. Such a provision cannot be treated as an absolute bar to the maintenance of a writ petition. The remedy provided in clause 6 of the Generation Order can be taken into account only to determine whether the remedy provided therein is sufficient in the present case to refuse to entertain the writ petition. 19. Shri Ray, Teamed counsel for the petitioners, took us through the entire correspondence between the parties, which is the basic material for deciding the case on merits, and invited us to give a decision on merits instead of directing the petitioners to the remedy under clause 6 of the Generation Order, after a lapse of several years, even if we reach the conclusion that this alternative remedy would nor be futile in the present case. In reply, Shri Y.S. Dharmadhikari, learned counsel for the Board, inspite of raising this preliminary objection, addressed us also on the merits and contended that a perusal of the entire correspondence between the parties clearly shows that the petitioners have no case even on merits. In other words, Shri Dharmadhikari also invited our decision on merits, saying that the entire material in the shape of documents being present on record and both sides having addressed us at length on merits, it would be proper to give a decision on merits instead of further delaying the decision of the controversy for some more years. The ultimate stand taken by both sides, therefore, is of seeking decision on merits on the ground that the material present on the record is sufficient for the purpose. to view of this position emerging at the hearing, the question of existence of alternative remedy under clause 6 of the Generation Order ceases to be of any practical consequence in the present case and we propose to decide the controversy on merits instead of leaving the same for decision under clause 6 of the Generation Order, unless any part of the controversy requires any further investigation for which the alternative remedy is more suitable. Failure to resort to the available alternative remedy before invoking the High Court's jurisdiction under Article 226 of the Constitution, is not an absolute bar to exercise of the power under Article 226 of the Constitution and is merely a circumstance enabling the High Court to refuse exercise of this extraordinary and discretionary power, if the facts of the case so require. This is the settled position in law and it is unnecessary to refer to the several decisions cited at the hearing on this point. In view of the conclusion reached by us on this point, it is also unnecessary to deal with the reasons given• by Shri Ray for not directing the petitioners to resort to the alternative remedy, in the facts of the present case. Inordinate Delay/Laches/Acquiescence 20. Another objection taken by the Board is based on the petitioners' conduct, disclosing the petitioners' laches or acquiescence or at any rate inordinate delay in making the challenge. Shri Dharmadhikari, learned counsel for the Board, contended that the petitioners' grievance is basically against the order dated 17-5-1975 and the petition was filed more than six years thereafter on 6-8-1981. Another objection taken by the Board is based on the petitioners' conduct, disclosing the petitioners' laches or acquiescence or at any rate inordinate delay in making the challenge. Shri Dharmadhikari, learned counsel for the Board, contended that the petitioners' grievance is basically against the order dated 17-5-1975 and the petition was filed more than six years thereafter on 6-8-1981. He argues that the impugned order dated 17-5-1975 was acted upon throughout and the petitioners raised the first challenge to it only by letter dated 15-9-1980 and at no time prior to it. Accordingly, it is urged that the petitioners' challenge is a clear after-thought and the petitioners are not entitled to the relief claimed on this ground as well. Shri Ray's reply on behalf of the petitioners is that the petitioners ventilated their grievance from the very outset and challenged the validity of the impugned orders on account of which the Board itself did not implement the impugned orders till issuing their letter dated 5•8-1980; and immediately thereafter the petitioners took steps to challenge the impugned orders. Shri Ray relied on the documents collectively marked Annexure P and appearing at pages 137 to 156 of the Paper Book, to show that the ceiling limit for drawing power from the Boards supply was fixed under the Regulation Order for the period between. 17-5-1975 and 1-5-1980 indicating that the basic order dated 17-5-1975 was not acted upon till issuance of the order dated 5-8-1980. The foundation of the rival contentions on this point is based on the conduct of the parties emerging from the correspondence between them and the facts beyond controversy. As we shall show hereafter, the petitioner-company's conduct clearly shows that the challenge made in this petition is a clear after thought to avoid a liability which was accepted and never disputed atleast till the year 1980. Petitioners' acquiescence is too obvious to admit of any doubt. Its effect shall be staled later. Validity of the order dated 17-5-1975 (Annexure H) and order dated 10-10-1975 (Annexure O) 21. It is under this heading that the entire correspondence which is material for the demand upto 31-7-1980, would be considered. The conduct of the parties also would be covered herein. It any be mentioned that for the period ending on 11-11-1979, there is no dispute and the dispute is only for the period commencing on 12-11-1979. It is under this heading that the entire correspondence which is material for the demand upto 31-7-1980, would be considered. The conduct of the parties also would be covered herein. It any be mentioned that for the period ending on 11-11-1979, there is no dispute and the dispute is only for the period commencing on 12-11-1979. The period between 12-11-1979 and 31-7-1980 is covered by the aforesaid orders. The period beginning on 1-8-1980 is covered by the subsequent order dated 13-10-1980 (Annexure U), which will be dealt with separately. 22. By order (Annexure H) dated 17-5-1975, the concerned D.E. of the Board informed the petitioner-company that the additional generation technically feasible from the sets installed and run by the company had been assessed at 2700 k.w. after consulting the company's representative; and the company was therefore, directed to generate additional electricity to the extent of 2500 k.w. from its sets with effect from the date of this direction. It was further stated therein that the contract demand for supply of electricity to the petitioner company was, accordingly, reduced to nil from the date of the direction. Apparently this was a direction issued under clause 3 of the Generation Order and the contract demand to which the company was entitled at that time being only 2500 k.w., it was reduced to nil as a result of the direction to generate 2500 k.w. from the company's generating set, the additional generation technically feasible from it having been assessed at 2700 k.w. is consultation with the company's representative. The reply on behalf of the company to this direction of the Divisional Engineer was given by letter dated 21-5-1975, wherein it was stated that the actual generation feasible at that time was only 1800 k.w. but it was not advisable to generate more than 1200 k.w. in the existing conditions. It was added that this was only due to steam limitation and once the boiler under erection starts steaming, generation could be enhanced to the full installed capacity. It may be mentioned that the full installed capacity of the company's generating sets was far in excess of 25o0 k.w. which was required to be generated, according to the Divisional Engineer's direction under clause 3 of the Generation Order. The next document is the company's letter dated 30-5-1975, addressed to the concerned Superintending Engineer of the Board. It may be mentioned that the full installed capacity of the company's generating sets was far in excess of 25o0 k.w. which was required to be generated, according to the Divisional Engineer's direction under clause 3 of the Generation Order. The next document is the company's letter dated 30-5-1975, addressed to the concerned Superintending Engineer of the Board. It was expressly stated therein that as directed, the company had started generating 2000 k.w. from its generating set from 30-3-1975 in order to meet the power shortage in the State. It was then stated that the coal consumption of the petitioner-company had increased for this reason and accordingly a request was made to the Board to recommend to the authorities at New Delhi for allotment of additional coal to the company to meet its demand. There was thus a clear admission of generating at least 2000 k.w. from its own generating set from 30-3-1975 in obedience to the direction given by the Divisional Engineer under clause 3 of the Generation Order and there was absolutely no challenge made to the Divisional Engineer's authority to issue such a direction or to the validity thereof.