WEST COAST PAPER MILLS LTD, BANGUR NAGAR, DANDELI v. STATE OF KARNATAKA
1990-08-23
K.B.NAVADGI, S.MOHAN
body1990
DigiLaw.ai
S. MOHAN, J. ( 1 ) ALL these appeals can be dealt with under one judgment since they arise out of a common order of our learned brother doddakalcgowda, j. Dated 10-8-1989 in w. ps. 10729, 13076, 11118, 12149 and 8870 of 1989. ( 2 ) THE appellants challenged the validity of the Karnataka electricity supply regulations, 1988 (for short 'the regulations'), framed by the Karnataka electricity board (for short 'the board'), requiring them to furnish cash security equivalent to 3 times the highest bill amount in a single month between January and October of a calendar year, contending that the same are ultra vires and arbitrary. The case of the appellants is that they mainly depend upon the power supplied by the board to run their industries in the state of karnataka. Some of them are high tension consumers; some others are low tension consumers; and a few others consume electricity for commercial purposes. They made certain initial deposits at the time of securing power connection as per the regulations then in force. Under regulation-55 of the 1948 regulations as amended and adopted by the board, consumers could be required to deposit cash security equivalent to two months average bill or two months minimum charges whichever was higher. Later on it was enhanced to three months. Regulation 31. 03 provided prior to its amendment in march, 1989, for furnishing cash security upto Rs. 1,00,000/-; over and above Rs. 1,00,000/-, 50 per cent to a limit of Rs. 1,00,000/- by cash and the balance by bank guarantee. The enhancement to 3 months security was questioned in Karnataka Electricity Board v Gadag Mining Company, ILR 1986 kar. 503 : AIR 1986 kant. 252. The old regulations were. replaced by a new set of regulations in the year 1988. Tariffs had undergone revision from time to time. Regulations 31. 01 to 31. 03 of the amended regulations spoke of initial security deposit and additional security deposit. As a result of the amendment, a demand was made to deposit cash security of three times the highestbill amount in any single month, during January to October of a calendar year. ( 3 ) IT was contended before the learned single judge that there was no rational basis for demanding cash security equivalent to three times the highest bill amount in a single month.
( 3 ) IT was contended before the learned single judge that there was no rational basis for demanding cash security equivalent to three times the highest bill amount in a single month. It was arbitrary and unreasonable, violative of Article 14 of the constitution. The industrialists having borrowed the money to run their businesses, cannot afford to part with such a huge amount. The board by collecting such a huge amount as cash security, deny the benefit of making use of the amount as capital investment for their business. With that amount they will be in a position to run the industry efficiently, and the insistence of cash security will not only cause great hardship but would also result in closure of the concerns. Detailed figures are furnished as to how it would result in great hardship. ( 4 ) THE learned single judge posed four questions for consideration as follows: (i) whe ther the regulations 31. 02 and 31. 03 which enjoin a consumer to furnish cash security to an extent of three times the higaest consumption charges in any single months between January to october, are illegal and void? (ii) whether those regulations are hit by Article 14 of the constitution? (iii) whether the failure to place these regulations on the floor of the state legislature make them inoperative and ineffective? (iv) by demanding cash security on the basis of highest unit consumption in the preceding year, whether the board has, in fact, given, retrospective effect to these regulations? Relying on Jagadamba Paper Industries v Haryana State Electricity Board, AIR 1986 SC 1296, he held that in view of the authoritative pronouncements of the Supreme Court and of this court declaring that the board is competent to frame regulations and insist for requirement to cash security, the first question would be beyond the pale of controversy. The third question was not pressed. As regards the second question he rejected it, as without merit. Concerning the last question, he held that merely because the board has taken the statistics of the previous year for the purpose of making a demand under the regulations, it cannot be said that the board had given retrospective effect to these regulations. Accordingly, he dismissed the writ petitions.
As regards the second question he rejected it, as without merit. Concerning the last question, he held that merely because the board has taken the statistics of the previous year for the purpose of making a demand under the regulations, it cannot be said that the board had given retrospective effect to these regulations. Accordingly, he dismissed the writ petitions. However, the appellants were permitted to furnish cash security in five equal monthly instalments, as per the concession made at the time of consideration of interim order. Thus, the appeals. ( 5 ) BEFORE us, Mr. R. n. narasimha murthy, senior advocate, appearing for the appellants in first four appeals, would urge that the regulations of 1988 would apply only to prospective consumers and not to consumers who had been getting electricity before. As to who is the prospective consumer, he refers to regulations 4. 01, clause (a) and contends that a prospective consumer is: (i) one who intends to apply for consumption of electricity, or (ii) an existing consumer who wants additional power. He draws our attention to various other regulations and submits that it cannot be applied to a consumer who has been getting electricity supply hitherto. There is no justification at all for demanding security deposit, equivalent to three times, reckoned with the bill of highest consumption charges, in a month during January to October of a calendar year. In AIR 1983 SC 1296 , the security deposit of 2 months charges was upheld for reasons stated in paragraph - 10, of that judgment but that cannot be applied in a case where even under the new regulations the billing itself will not take more than 2 months under Regulation 30. 02. As to how billing is done came up for consideration in Kistna Cement Works v Secretary A. P. S. E. B. , AIR 1979 A. P. 291. Therefore, the question would be whether demand anything more than 2 months charges as security deposit is reasonable? On this question he refers Karnataka Electricity Board v Gagad Mining Co. , ILR 1986 kar. 503 : AIR 1986 kant. 252, and says that this ruling will be inapplicable in view of Regulation 30. 02. He also produces a tabulated statement of the consumption charges and contends that if on that basis the highest amount is worked out, it would result to practically 31/2 months.
, ILR 1986 kar. 503 : AIR 1986 kant. 252, and says that this ruling will be inapplicable in view of Regulation 30. 02. He also produces a tabulated statement of the consumption charges and contends that if on that basis the highest amount is worked out, it would result to practically 31/2 months. In this regard, M/s. Alpha Alloy Steels v Rajasthan State Electricity Board, AIR 1987 raj. 131 , is cited. ( 6 ) MR. U. L. Narayana Rao, learned counsel for the appellant in w. a. no. 1853/1989, contends that the amendment requiring payment of security deposit in cash, works very harshly on the appellant. The appellant's industry was started in 1973, as a high tension consumer and the impugned notice demanding Rs. 70 lakh and odd is impossible of compliance. ( 7 ) MR. S. g. sundara swamy, senior advocate, appearing for the board, refers to Regulation 31 and then states that two kinds of security deposits are contemplated thereunder: one is on the basis of estimated consumption before service, and after service. Regulation 31. 02 talks of additional security deposit, while Regulation 4. 05, clause (c) makes clauses 1 and 3 of Regulation 31 applicable and not clause 2. Regulation 31. 02 applies to actual consumers the moment the consumption starts. The object of security deposit is to secure proper payment of the consumption charges. In AIR 1983 SC 1296 , the Supreme Court, while approving the decision of the Andhra Pradesh high court in AIR 1979 A. P. 291, upheld the additional security deposit for existing consumers. Therefore, it will be idle to contend that these regulations would apply only to prospective consumers. The question whether demand for 3 months charges could be made as against the former demand of only 2 months charges is answered in greater Bombay Municipal Corporation v M/s. Devidayal Metal Industries, AIR 1984 bom. 242 . The same view is reiterated in Southern Steel Ltd. V A. P. State Electricity Board, AIR 1990 A. P. 58. This case clearly states the objects behind the condition for deposit. It is this ratio which he would commend for acceptance.
242 . The same view is reiterated in Southern Steel Ltd. V A. P. State Electricity Board, AIR 1990 A. P. 58. This case clearly states the objects behind the condition for deposit. It is this ratio which he would commend for acceptance. In such matters court cannot be called upon to weight nicely and come to one conclusion or other; if a principle is found to be correct the courts always decline to interfere as seen from tamil nadu e. d. m. g. s. s. association v state of tamil nadu, AIR 1980 SC 379 . If, therefore, having regard to the object, the demand for three months charges is valid, the courts will say 'hands off. The same principle should be adopted here. Demanding cash security is well within the powers of the board and there cannot be anything harsh. ( 8 ) IN order to appreciate the respective contentions, we will now extract regulations 31. 01 and 31. 02 :"31. 00. Security : 31. 01. Initial security deposit (isd ). All prospective consumers shall pay, unless exempted, security, towards power consumption charges to cover three months' power supply bills, worked upon on the basis of the estimated consumption as per the table given below or the three months line minimum charges, whichever is higher. The estimated power supply charges shall include fixed charges, if any, for lt installations and demand charges on 100 per cent contract demand for ht installations. Type of installation estimated consumption per month lt installations (a) non-commercial lighting type of installation 10 units for every 250 watts or part thereof of sanctioned load. Estimated consumption per month type of installation estimated consumption per month lt installations (b) non-commercial combined lighting, heating and power 100 units per kw or part thereof of sanctioned load. (c) commercial lighting 20 units for every 250 watts or part thereof of sanctioned load. (d) commercial hearing and/or motive power 135 units for every kw or part thereof of sanctioned load. (e) irrigation pump-sets yearly minimum charges as per tariff in force from time to time. (f) public lighting as per prevailing tariff. (g) others 135 units per kw or part thereof of sanctioned load per shift. Ht installations (h) all ht installations 200 units per kva of contract demand. 31. 02. Additional security deposit (asd ).
(e) irrigation pump-sets yearly minimum charges as per tariff in force from time to time. (f) public lighting as per prevailing tariff. (g) others 135 units per kw or part thereof of sanctioned load per shift. Ht installations (h) all ht installations 200 units per kva of contract demand. 31. 02. Additional security deposit (asd ). After the installation is serviced, if the deposit held falls short of three times the highest bill amount during any single month during January to October of the calendar year, the difference shall become payable by the consumer as additional security deposit within 30 days from the date of notice. Note : (i) the bill amount for the above purpose shall exclude taxes, arrears, audit short claims, interest, back billing charges, penal charges for excess consumption/demand. (ii) if any bill amount is for a period of more than one month the bill will be calculated for a single month on pro-rata basis. "we will now set out Regulation 31. 03 before amendment and after amendment : before amendment after amendment 31. 03. Payment of initial security deposit and additional security deposit. The security deposit (isd and asd) shall be payable as indicated hereunder : a) upto Rs. 1,00,000/- cash only, b) above Rs. 1,00,000/- 50% to a limit of Rs. 1,00,000/- by cash and balance by bank guarantee. 31. 03. Payment of initial security deposit and additional security deposit. The security deposit (isd and asd) shall be payable as indicated hereunder: the entire amount of initial security deposit and additional security deposit shall be payable in the form of cash only. Two questions arise for our determination namely : (1) whether Regulation 31 applies to only prospective consumers? And (2) whether the demand of security deposit equivalent to three times the highest bill amount in a single month during January to October of a calendar year is arbitrary? ( 9 ) ACCORDING to Mr. Narasimha murthy, Regulation 31. 01 applies only to prospective consumers. As to who is 'prospective consumer' one must look at Regulation 4. 01 (a) which reads :"the prospective consumer who intends to avail himself of the power supply or an existing consumer who wants an additional power, shall apply in the prescribed form. . . . . . . "regulation 4.
01 applies only to prospective consumers. As to who is 'prospective consumer' one must look at Regulation 4. 01 (a) which reads :"the prospective consumer who intends to avail himself of the power supply or an existing consumer who wants an additional power, shall apply in the prescribed form. . . . . . . "regulation 4. 05 (c) says that the prospective consumer shall pay security amount towards estimated power charges as prescribed under clauses 1 and 3 of Regulation 31. On this language, he says that only a prospective consumer or an existing consumer who wants additional power will be subject to these regulations. As to high tension consumer, Regulation 8. 07 would apply, which corresponds to Regulation 4. 05. We are arc unable to accept this contention because supposing a consumer had obtained electricity connection in the year 1930 when tariffs were far below, he cannot be heard to say that still in the year 1990 he must be subject to only those regulations. That will lead to absurd results. As a matter of fact, in AIR 1983 SC 1296 , as seen from paragraph 3, the case dealt with the petitioners who were not prospective consumers. The enhancement of security deposit from Rs. 30/- to Rs. 100/- per kw was upheld. Regarding demand of highest security deposit, in paragraphs 9 and 10 it was observed as follows : "9. On behalf of some of the petitioners it was contended that the security should represent the average energy bill for one month. It was claimed that the legislature has set up the board as an autonomous body with large powers and providing scope to act purely with a view to creating an effective public utility service. The board should not be permitted to act cither arbitrarily or capriciously; nor should it manage its affairs in a disorderly way and taking advantage of its monopoly status, pass on the incident of such vice to be shared by the consumers. We share the concern of the petitioners and their counsel, that the affairs of the boards in the different states of the country are not upto the expectation of the consumers and there have been instances which give rise to genuine anguish and dissatisfaction.
We share the concern of the petitioners and their counsel, that the affairs of the boards in the different states of the country are not upto the expectation of the consumers and there have been instances which give rise to genuine anguish and dissatisfaction. The scheme of the Act, clearly indicates a legislative mandate that the board should manage its commercial activities in such a way that it docs not make any loss. It is also clear that the board being a public utility organisation is not expected to make any undue profit by abusing its monopoly position. An inbuilt system of control and supervision has been set up and the state governments have been given power to give policy directions. Situation seems to have arisen when stricter control and supervision are called for and if organisational changes and provision for greater control appear necessary, to improve the functioning of the boards, steps should be taken without delay in this regard. The board should always remember that it is a public utility service and not a governmental agency enjoying wide powers and expected to have a share in the governance of the country. ( 10 ) WE agree, however, on the facts placed, that the stand of the board that ademand equal to the energy bill of two months or a little more is not unreasonable. Once we reach the conclusion that the board has the power to unilaterally revise the conditions of supply, it must follow that the demand of higher additional security for payment of energy bills is unassailable, provided that the power is not exercised arbitrarily or unreasonably". As rightly contended by Mr. Sundara swamy, while approving the decision of the Andhra Pradesh high court, the Supreme Court upheld the additional security deposit for existing consumers. There is one more reason to hold so. Regulation 31 extracted above stated that the consumption charges to cover three months supply is worked out on the basis of estimated consumption as per the table given therein. Therefore, with regard to the initial security deposit it is on the basis of estimated power supply, and the additional security deposit under Regulation 31. 02, is after the installation is serviced. Thus if the object is to secure proper payment of bills in relation to consumption charges, it is futile to contend that it will apply only to prospective consumers. 10.
02, is after the installation is serviced. Thus if the object is to secure proper payment of bills in relation to consumption charges, it is futile to contend that it will apply only to prospective consumers. 10. Coming to the second question viz. Whether the demand of security deposit equivalent to three times the highest bill amounts, in a single month during January to October of a calendar year, Mr. Narasimha murthy would base his submission on paragraph 10 of the judgment of the Supreme Court extracted above. In AIR 1979 A. P. 291 the question whether the requirement of cash deposit equivalent to three months average consumption charges was reasonable came to be answered in paragraphs 8 to 10 in the following manner: "8. Having made the aforesaid position clear, we will now examine whether the requirement of cash deposit of an amount equivalent to charges for three months' average consumption charges as consumption deposit laid down under the conditions issued by the board under Section 49 of the 1948 act is reasonable. 9. The reasonableness of such a requirement is explained by the board in its counter in W. P. No. 2359/1975 out of which w. a. No. 156 of 1977 arises. In the counter it was stated as follows :"the consumer is billed for each month separately. The consumers' electricity consumption during the month is billed at the end of the succeeding month and 30 days time is given to him for paying of the bill. If he does not pay the bill, his supply is liable to be disconnected after giving one week's notice under Section 24 of the Indian electricity Act, 1910. Meanwhile he will be consuming the power. So by the time the supply is disconnected to a defaulting consumer he would have consumed energy for 3 months. The board's interest requires that there should be some protection by way of security of advance payment in respect of the consumption of this three months' period. "this is how the board sought to explain the reasonableness of the requirement of security representing three months average consumption charges. Nobody can say that this is unreasonable. For three months a consumer can go on consuming electrical power without paying any charges. It is therefore eminently reasonable for the board, to require the consumer to furnish security for three months charges.
Nobody can say that this is unreasonable. For three months a consumer can go on consuming electrical power without paying any charges. It is therefore eminently reasonable for the board, to require the consumer to furnish security for three months charges. Therefore, we are satisfied, that the requirement of security for three months consumption charges is reasonable. 10. Then, whether the insistence on cash deposit of such an amount is reasonable or not, will be the next, question. Once again we would like to extract from the counter-affidavit a passage relating to this. It is stated :"the board is duty bound to conduct its operations on a business like and profit basis. Accordingly it has been stipulating that for a consumer depositing with the board, an amount equivalent to the estimated consumption charges for a period of three months (sic ). Even prior to the Constitution of the board this has been the practice. Consumers were also permitted to tender security in form other than cash to give bank guarantees also. In actual practice the board has found that the procedure of accepting other types of security is giving rise to serious inconvenience and difficulties. The realisation of security is at time a lengthy and inconvenient process. There have been cases where the board has suffered financial injury being unable to realise the security. It has consequently become necessary to insist on cash security. "to our mind, this is a quite satisfactory explanation of the reasons behind insistence on cash security. Certainly a public utility service like electricity board cannot launch itself on litigation to recover consumption charges on a large scale. Power generation, which it does is an essential service and that shall never be allowed to suffer on account of improper security. We have already referred to the fact that it is reasonable on the part of the board to require security for three months' consumption charges. Now to require that amount to be deposited in the form of cash is eminently reasonable, in the circumstances mentioned by the counter and which have been referred to above. It would avoid the board from incurring any financial injury since cash deposit is available. " this case affords complete answer to the argument of Mr. Narayana rao that demanding entire security deposit in cash is harsh. ( 11 ) IN ILR 1986 (1) kar.
It would avoid the board from incurring any financial injury since cash deposit is available. " this case affords complete answer to the argument of Mr. Narayana rao that demanding entire security deposit in cash is harsh. ( 11 ) IN ILR 1986 (1) kar. 503 at 504 three questions were posed for determination,. and the second question reads as follows :" (ii) whether the demand for additional security deposit subject to a maximum of 3 months estimated power consumption charge or 3 months average bill whichever is higher, is reasonable and is justified in law?"the answer to this question is found in paragraphs 7 and 8 which read as follows : "7. Regulation 27 provides for reading of meters. The reading of the meters, can take place after the end of the concerned month and having regard to the large number of consumers, it would take some time for the employees of the board to complete the meter reading. In the case of domestic consumers the learned counsel said that the bill could be prepared then and there but in respect of non-domestic consumers, on the basis of the figures of the meter reading, the office has to prepare the bill and send the same to the consumers and it would also occupy some time. Regulation 35 requires to pay the bill within 15 days from the date of receipt of the bills. There is also a provision to pay the bills by cheques. Whenever payment is made by cheques, some time is occupied in. Encashing the cheques. Further after noticing that a particular consumer has not paid the bill within 15 days after the presentation of the bill which itself occupies some time, Section 24 of the electricity Act, 1910 provides that clear seven days notice shall be given to the consumer before effecting disconnection and the issuing of such notice also would naturally take some time.
Further after noticing that a particular consumer has not paid the bill within 15 days after the presentation of the bill which itself occupies some time, Section 24 of the electricity Act, 1910 provides that clear seven days notice shall be given to the consumer before effecting disconnection and the issuing of such notice also would naturally take some time. It appears to us, it, would be reasonable to take a view that it will take 15 days to prepare the bill after the end of the particular month and send it on to the consumer and" consumers will have 15 days to pay the bill and whenever the bills are paid in cheques it may take a week for realisation of the cheques and in the case of default as the board is required to give 7 clear days notice it will take 2 1/2 months or a little more before the board could realise the amount due from such consumers and in the meanwhile the consumers will be consuming electric energy without making payment. 8. Having regard to these facts and circumstances, it appears to us that it is difficult to say that requirement to deposit 3 months charges is unreasonable. It is seen from the judgment of the Supreme Court in jagadamba paper mills that the Andhra Pradesh high court had held that security of an amount equal to 3 months consumption charges was reasonable, and the Supreme Court accepted the correctness of the view of the Hon'ble high court. A similar question arose in the appeals presented by the Bangalore Water Supply and Sewerage Board v Ramakrishna Aithal, eported in 1987 (1) kar. L. j. sh. N. Item nos. 50 and 51 : ILR 1986 kar. 488. In the said case, on consideration of the ratio of the judgment of the Supreme Court in jagadamba paper industries p. Ltd. , the division bench of this court held that requirement to deposit 3 months charges was reasonable. In the said case, in respect of domestic consumers of water, Bangalore water supply and sewerage board required by Regulation to deposit 3 months charges as deposit. In respect of non-domestic consumers, the Regulation required them to deposit an amount equal to six months charges. The Regulation to the extent it demanded more than 3 months charges as deposit from the non-domestic consumers was held invalid.
In respect of non-domestic consumers, the Regulation required them to deposit an amount equal to six months charges. The Regulation to the extent it demanded more than 3 months charges as deposit from the non-domestic consumers was held invalid. But the requirement to deposit an amount equal to 3 months charges was held reasonable and valid. The ratio of the said judgment applies with equal force to this case also. For these reasons, we answer question No. 2 in the affirmative and in favour of the board". This ruling according to Mr. Narasimha murthy would not apply in view of Regulation 30. 02. We may straightaway say that if the principle of demand of security deposit as per the regulations is to be upheld we cannot introduce niceties. In repelling a similar argument in greater Bombay Municipal Corporation v M/s. Devidayal Metal Industries, AIR 1984 bom. 242 it was held thus in paragraph 36 :"36. Coining to the argument that three months' period is arbitrary, in our view, it would not be permissible to go into this question because unless the period is so large that it appears prima facie to be unreasonable, the discretion of determining the approximate amount of bills which have to be safeguarded and provided for must be left to the licensee. The argument of Mr. Singhvi was that if the statutory procedure preceding the actual disconnection is to be gone through, it takes a sufficiently long time. Mr. Hidayatullah, on the other hand, pointed out that if the licensee acts strictly in accordance with the statute, at the end of two months the licensee would be in a position to take recourse to its drastic power under Section -24. The only difference, according to Mr. Hidayatullah, was that instead of three months, two months' guarantee should have been enough.
The only difference, according to Mr. Hidayatullah, was that instead of three months, two months' guarantee should have been enough. The licensee has to cater to a large number of consumers and having regard to the fact that the bills for one month are sent some time in the course of the next month, because taking of readings of the meters and despatching of bills is bound to take considerable time where large number of consumers are involved, it is obvious that a strict mathematical calculation as to the time and procedure involved and permissible under the Act, cannot be the only guide for determining whether two months guarantee should have been taken and, therefore, three months security was unreasonable. We are not satisfied in the instant case that asking for a security for bills fora period of three months would be unreasonable". the same view is reiterated in AIR 1990 A. P. 58, and in dealing with the object behind the conditions of deposit, in paragraph 15 it was held as follows :"15. What is the object behind condition No. 28? That is the first question to be answered. A reading of condition No. 28 shows that the primary purpose behind the said condition is prompt realisation of the amounts due to the board. The amounts due to the board normally include the monthly consumption charges. When ever any amount falls due to the board and is not paid within the period prescribed therefor, an equivalent amount out of the consumption deposit is appropriated towards that amount. The consumer will thereafter be called upon to make good the deficit in the consumption deposit. Consumption deposit is calculated on the basis of and is tacked on to the average monthly consumption. This amount is subject to revision from time to time and, at any rate, once every year, having regard to the revision in tariffs, enhancement of the contracted demand by the consumer, changes in the pattern of consumption by the consumer, relaxation of the power restrictions, or such other facts as may, in the opinion of the board, warrant review of the adequacy of the existing consumption deposit. It also provides that where the consumer fails to make the consumption deposit, or fails to make up the deficit when so demanded by the board, supply of energy shall be stopped. . . . . . . .
It also provides that where the consumer fails to make the consumption deposit, or fails to make up the deficit when so demanded by the board, supply of energy shall be stopped. . . . . . . . "then about demand of three months' deposit it was held to be not arbitrary or unreasonable as seen from paragraph 16 which reads as under :"16. It is also stated by the board that huge sums are required by it as rotating capital; that it borrows large amounts from organisations like l. i. c. and banks ; that it pays interest to them, and that in such circumstances it is well entitled to require the consumer to cooperate by paying their bills regularly, by giving security deposit, and by confirming to the terms and conditions of supply. It is argued that this consideration was also one of the bases of condition No. 28. We do not think it necessary to express any opinion on this question, though the truth of the matter cannot be denied. There are two views upon the matter. The petitioners say that the interest burden should be reflected in the tariffs, while the board says that interest burden can be reflected in consumption deposits, and not necessarily in tariffs. All that we can say is that there is no hard and fast Rule in this behalf. The interest burden can be reflected either in tariffs, or can be sought to be set off by calling upon the consumers to make deposits. In this case, however, it is unnecessary to go into this aspect, since the requirement of three months' deposit, in our opinion, cannot be said to be unreasonable and unjustified having regard to the facts mentioned above. It cannot be said that the said condition is so unreasonable and arbitrary as to call for interference by this court under Article 226 of the constitution. We reiterate that even if this court comes to the conclusion that the deposit should not be 3 months, but 2 months 7 days or 21/2 months, it would not be entitled to interfere in the matter, not being an appellate authority. It cannot substitute its own opinion for the opinion of the board. It can interfere only when the exercise of powers is shown to be arbitrary, and unrelated to the object sought to be achieved.
It cannot substitute its own opinion for the opinion of the board. It can interfere only when the exercise of powers is shown to be arbitrary, and unrelated to the object sought to be achieved. Learned counsel for the board indeed agrees with the proposition that the board has to act reasonably. He gave an illustration rightly in our opinion, where the board would say that such deposit should be equal to the annual consumption charges. He points out that in such a situation it would cease to be consumption deposit. Such a condition would be unrelated to the object underlying consumption deposit viz. Securing prompt payment of monthly bills and other amounts due to the board. It would cease to be consumption deposit and would become contribution, it can no longer be called consumption deposit. Not that we are saying that this court will not interfere unless such extreme situation arises. What we are emphasising is that a slight difference of opinion as to the basis of calculation of such deposit would not entitle this court to interfere or to amend the conditions of supply. Now take an ordinary case. For the whole month the consumer avails energy without paying for it. The bill is served, normally speaking, within about 15 days of the expiry of the month. Another 15 days is given for payment of the bill amount. If it is not paid, a 7 days notice has to be given as required by Section 24 of the 1910 act. All this takes 2 months 7 days. Apart from this, there are the practical difficulties stated in the counter-affidavit. The board says that it takes some time for it to discover the default and that at any rate, no immediate disconnection is effected mechanically, but that a realistic approach is adopted and the amount is included in the next month's bill. It is pointed that only when the default is repeated, would they resort to disconnection. All this would bring the three months' deposit perfectly within the realm of reasonableness. It cannot be termed as arbitrary or unreasonable, nor can it be said that the said requirement is unrelated to the object for which the said condition was issued. "in AIR 1987 Rajasthan 131, in paragraph 10 it was held as follows :"10.
All this would bring the three months' deposit perfectly within the realm of reasonableness. It cannot be termed as arbitrary or unreasonable, nor can it be said that the said requirement is unrelated to the object for which the said condition was issued. "in AIR 1987 Rajasthan 131, in paragraph 10 it was held as follows :"10. Now the next question that arises for consideration is that what should be the calculation of three months' security deposit. The board has taken three months' highest consumption as the criterion for calculating three months' security deposit. Both the learned counsels submit that this criterion does not appear to be rational. It cannot be lost sight of the fact that in the last couple of years the supply by the board has not been very happy. To leave a blanket discretion in the hands of the board, that they may choose any three months where there is highest consumption by the consumers, that will be unfair to the consumers. This would amount to putting the consumers in a disadvantageous position and leaving a room to the board to exploit the consumers. After all the board is a public utility service and it cannot become master. The claim of security deposit is for securing the payment of the board for the energy supplied by it. If any person commits default in payment of the bill, the board is not powerless to secure that amount. There are already a number of Provisions in the supply act and the general conditions whereby the board can enforce the payment very conveniently. At the same time it is not the intention that the board should be forced to go for litigation for the recovery of its dues. Thus, a rationale has to be arrived at so as to secure the payment of the board and at the same time avoid undue hardship to the consumers. The very fact that the enhanced security deposit has been provided in the general conditions ensures the payment of the board of its dues. The criterion of the board that the highest consumption of the previous year should be a yardstick to enhance the security deposit would amount to giving a blanket power to the board and that will cause great hardship to the consumers. Mr.
The criterion of the board that the highest consumption of the previous year should be a yardstick to enhance the security deposit would amount to giving a blanket power to the board and that will cause great hardship to the consumers. Mr. Shishodia pointed out three different contingencies and submitted that one could be the highest consumption of three months of the previous year or it could be three continuous months' consumption of the previous year. Lastly three months average consumption of previous year, as contended by the petitioners. After considering all the three contingencies, I think that the last contingency pointed out by the learned counsel for the petitioners is more rational and in consonance with reason. So far as the contingencies pointed out by Mr. Shishodia are concerned they give a monopoly and leave an unfettered discretion in the hands of the board, whereas the third criterion which has been propounded by the learned counsel for the petitioners is more rational and appears to be reasonable. Three months average consumption of last 12 months can cover the minimum and maximum period of consumption. As against this both the criteria submitted by Mr. Shishodial leave no room but leave blanket discretion in the hands of the board whereby they can pick any three months highest consumption or any three continuous months advantageous to them. That will amount to arbiter the matter from position of advantage leaving no choice to consumers. Thus, I think that third criterion submitted by Mr. Purohit appears to be more reasonable, than three month's average of the previous year consumption should be adopted for enhancing the security deposit. In this view of the matter I find that three months criterion of highest consumption of the previous year adopted by the board is arbitrary and irrational. In this connection, I will also take note of the observations made by their lordships in M/s. Jagadamba paper industries' case (supra) wherein affirming the contention of the respondents their lordships observed as under: "we agree, however, on the facts placed, that the stand of the board that a demand equal to the energy bill of two months or a little more is not unreasonable. Once we reach the conclusion that the board has the power to unilaterally revise the conditions of supply.
Once we reach the conclusion that the board has the power to unilaterally revise the conditions of supply. It must follow that the demand of higher additional security for payment of energy bills is unassailable, provided that the power is not exercised arbitrarily or unreasonably. "thus, the criterion adopted for enhancing the security deposit in the present cases appears to be arbitrary and unreasonable. In this connection, Mr. Shishodia also drew my attention to the seasoned factory which does not necessarily run for whole of the year. This is for the board to decide any reasonable criterion for calculating the enhanced security regarding seasonal factories. " with respect, we adopt the reasoning of the Bombay and Andhra Pradesh high courts ( AIR 1984 bom. 242 and AIR 1990 A. P. 58), which is in accord with the regulations of 1988. In the statement filed by the appellant in w. a. No. 1834/1989, the energy charges paid in respect of three years i. e. 1987, 1988 and 1989, and the three months' average and three times the highest bill are stated thus : Month 1987 1988 1989 January 4,43,587. 00 3,21,320. 00 4,95,370. 00 February 4,52,967. 00 3,22,840. 00 4,58,300. 00 March 3,92,427. 00 3,22,120. 00 4,08,268. 30 April 3,94,947. 00 3,25,260. 00 4,64,800. 00 May 2,65,755. 00 3,30,800. 00 4,55,635. 00 June 3,91,742. 00 2,09,601. 00 4,56,004. 00 July 3,90,840. 00 2,78,006. 10 4,56,760. 00 August 3,85,780. 00 4,04,000. 00 5,24,260. 00 September 3,39,480. 00 4,03,440. 00 5,06,224. 00 October 3,32,860. 00 4,52,460. 00 4,77,820. 00 November 3,15,282. 00 4,60,110. 00 5,23,860. 00 December 3,24,700. 00 5,17,784. 50 4,97,377. 50 . 44,30,367. 00 43,47,741. 60 57,24,678. 80 3 months Average 3,69,197x3 3,62,311x3 4,77,056x3 . 11,07,591. 00 10,86,933. 00 14,31,168. 00 Highest 4,52,967x3 4,52,460x3 5,24,260x3 . 13,58,901. 00 13,57,380. 00 15,72,780. 00 even factually worked out on the basis of highest consumption charges, the difference for the year 1989 is just a lakh and odd. Therefore, there is nothing unreasonable or arbitrary. Lastly we may say once the principle is found to be correct we should decline to interfere because in AIR 1980 SC 379 , it was held in paragraph 17 thus : "once the principle is found. to be rational the fact that a few freak instances of hardship may arise on cither side cannot be a ground to invalidate the order of the policy.
to be rational the fact that a few freak instances of hardship may arise on cither side cannot be a ground to invalidate the order of the policy. " for all these reasons, we dismiss these appeals. However, there will be no order as to costs. --- *** --- .