Research › Browse › Judgment

Rajasthan High Court · body

1995 DIGILAW 527 (RAJ)

New Krishna Gum Industries v. R. S. E. B. .

1995-05-26

ARUN MADAN

body1995
Honble MADAN, J.– This writ petition has been filed by the petitioner-industry which is a registered partnership firm at Sardar Shahar, District Churu, Rajasthan. The grievance of the petitioner in this writ petition is that notwithstanding a specific clause 24 of the Agreement(Annex-1) dated 19.2.77, duly executed between the petitioner-industry and the Rajasthan State Electricity Board(hereinafter to be referred as the `respondent-Board) in accordance with which the said agreement was to remain in force for a period of 5 years in the first instance commencing from the date of supply of electricity to the petitioner-industry in pursuance of clause 3(a) of the said agreement with a proviso to the said agreement that either party shall be at liberty to terminate this agreement after the expiry of the initial period of 5 years after giving the other party a notice in writing in that behalf and on expiry of said notice the agreement shall cease to have any effect, the respondents did not act in accordance with the agreement and continued to bill the petitioner-industry for the billing cycle May, 1983 to August , 1983 by treating the original load stated in the agreement and the additional load granted thereafter. (2). The facts giving rise to the filing of this writ petition, briefly stated, are that the petitioner-industry is a manufacturer of Guar Gum and commenced its production with effect from 30.5.77. It has been stated by the petitioner that in view of various assurances given by the State Government for establishment of small scale industries and for extending full facilities regarding supply of electricity, allotment of land and financial assistance from the Rajasthan Financial Corporation, the petitioner-industry bonafidely relying and acting upon the said assurance, decided to establish and install a factory to manufacture Guar Gum at Sardar Shahar. (3). The petitioner-industry applied for the supply of electric energy to the respondent - Board which the respondent-Board had agreed to supply to the petitioner-industry i.e. High Tension Connection of the requisite standard subject to the terms and conditions which were duly settled between the parties. (4). That before realising the High Tension Connection of 160 KW with effect from 30.5.77, the respondent-Board got an agreement for High Tension Supply duly executed with the petitioner- industry on 19.2.77, vide Annexure-1. (4). That before realising the High Tension Connection of 160 KW with effect from 30.5.77, the respondent-Board got an agreement for High Tension Supply duly executed with the petitioner- industry on 19.2.77, vide Annexure-1. However, after realising of 160 KW a further supply of 100 KVA power was sanctioned to the petitioner -industry on 1-4-78 on the same terms and conditions and thus the respondent-Board agreed to supply to the petitioner in all maximum demand of 300 KVA as per the contract demand vide Annexures-2 and 3 dated 30.5.77 and 1.4.78 respectively. (5). That inspite of the categorical assurance conveyed to the petitioner by the respondent-Board, the petitioner-industry was subjected to acute power shortage problem in violation of the terms of the agreement, as referred to above. It has been contended at the Bas, by Shri U.N. Bhandari, learned counsel for the petitioner that this shart supply of power caused serious set-backs to the development of the industry during its infancy period. It has been further contended by the learned counsel for the petitioners that notwithstanding the contract demand serious power-cuts were inposed by the respondent-Board on the petitioner-industry. Further there were frequent trippings which resulted in setbacks to the petitioner-industry. Inspite of this, the respondent-Board continued to levy and collect minimum charges from the petitioner-industry.Aggrieved by the said collection of the minimum charges, the petitioner filed a writ petition in this Court bearing SBCWP No.1977/82 which was admitted and stay was granted by this Court on 14-2-88. (6). In para 9 of the writ petition the petitioner has mentioned the various dates, percentage of power-cuts imposed by the respondent-Board during the period 12th June, 1980 to 11th October,1982, as per the tabular statement placed on the record. (7). that thereafter the petitioner made several representations to the respondent-Board but the requests were not acceeded to and the respondent-Board went on sending the bills raising demands by various bills on the petitioner on the basis of the minimum charges which ultimately resulted in filing of the above noted writ petition in this Court. (8). (7). that thereafter the petitioner made several representations to the respondent-Board but the requests were not acceeded to and the respondent-Board went on sending the bills raising demands by various bills on the petitioner on the basis of the minimum charges which ultimately resulted in filing of the above noted writ petition in this Court. (8). Ultimately when the petitioner-industry found that the respondent-Board is neither in a position to supply full amount of electricity as agreed nor is ready to take pregmatic view of the matter by waiving the minimum charges as per the terms and conditions of the agreement as envisaged in clause 24 of the Agreement, the petitioner-industry served a notice on the respondent-Board on 5.10.82 vide Annexure-4, mentioning therein that 5 years limit of the agreement (Annex-1) stood expired on 30th May, 1982 and as such the load of its factory be reduced by 175 HP and the petitioner be treated as a `Low Tension Consumer. Clause 24 of the Agreement is reproduced hereinbelow for the sake of ready reference:- "This agreement shall, subject to hereinafter provided, remain in force for a period of five years in the first instance commencing from the date of supply as per clause 3(a) above and thereafter from year to year: Provided that either party shall be at liberty to terminate this agreement after the expiration of the initial period of 5 years on giving other party not less than 6 months notice in writing in agreement shall cease and be determined but without prejudice to the right of either party against the other in respect of any matter antecedent to such termination.". (9). It has been further contended in the writ petition that even after the expiry of 5 years of the Agreement and the period of 6 months thereafter of the service of notice on the respondent- Board, the respondent-Board continued to bill the petitioner- industry on the basis of minimum charges calculated at 33000 units per month for the billing months from May, 1983 to August,1983. The submission of the petitioner is that after the expiry of 6 months of service of notice, as per clause 24 of the Agreement, the respondent-Board should not have billed the petitioner-industry by calculating minimum charges of 33000 units per month when the actual consumption of energy was inconsequential as stated above. (10). The submission of the petitioner is that after the expiry of 6 months of service of notice, as per clause 24 of the Agreement, the respondent-Board should not have billed the petitioner-industry by calculating minimum charges of 33000 units per month when the actual consumption of energy was inconsequential as stated above. (10). It is in the above circumstances that the petitioner had submitted Schedule-A to the notice served on the respondent-Board whereby the petitioner-industry claimed a refund of Rs. 84,723.87 paisa alongwith the interest thereon. (11). In the reply filed on behalf of the respondents it has been contended that the agreement was duly executed between the parties but no clear and categorical assurance was given by the respondent-Board to the petitioner-industry with regard to the supply of electricity as the same depends on the various factors including there being power shortage etc. It has been further contended that the concept of minimum payment/contract demand has not been construed properly by the petitioner since the contract demand is the demand by which the consumers can make to its maximum on the Board. It is the outer limit of the demand which cannot be treated as a normal de mand since the electricity is a commodity which cannot be stored and must be supplied and consumed on generation. The respondent-Board have denied the frequent cuts imposed on the supply of electricity to the petitioner but there was a restriction of consumption of electric energy as per the percentage of power-cuts imposed with no restriction. Furthermore Section 49 of the Electricity Supply Act empow- wers the Board to regulate the supply of electric energy to the consumers and as such the Board has the power to fix highly based units of each consumer . In any event it may be stated that even the benefit of power-cuts has already been given to the petitioner for the period July, 1980 to August, 1983 by providing proportionate deduction in the minimum charges and fuel surcharge and LPS were also revised to the benefit of the petitioner as a result of the reduction of the minimum charge. It has been further stated that the petitioner has been given credit of Rs.91,957.95 paisa on account of the revision of the bills for the aforesaid period. It has been further stated that the petitioner has been given credit of Rs.91,957.95 paisa on account of the revision of the bills for the aforesaid period. With reference to para 12 of the writ petition, respondents have stated that writ petition No. 1977/82 was dismissed by this Court with costs of Rs. 2,000/- on 30.3.83 and in pursuance of the directions of this Court the costs have already been paid by the petitioner to the respondent-Board on 29-5-93. It has been further submitted by the respondents that unless proper and valid sanction for the load was issued by the competent authority, the petitioner was not entitled to treat his contract demand or connected load to be reduced automatically on the expiry of 6 months period. It has been further contended by the respondents that the petitioner-industry has been changing its stand and the requirements frequently with regard to increase and reduction in connected load and the respondents cannot be blamed for the delay alleged by the petitioner. (12). The parties were called upon by this Court to file their written submissions and both the petitioner as well as the respondents have filed and placed their written submissions on the record. In the reply to the written submi- ssions filed by the respondents, it has been stated by the petitioner that the amount of billing month of May, 1983 to August, 1983 calculated by treating the minimum charges as 33,000 units be declared illegal and without authority of law and, therefore, the said amount, if collected from the petitioner-industry till now, be ordered to be refunded to the petitioner alongwith the amount of late payment surcharge levied thereon and also the interest @ 2% per month on the amount recovered unlawfully from the petitioner till the refund is actually made. (13). I have heard the learned counsel for the parties and examined their rival claims and contentions and also perused the relevant documents including the reply filed by the respondents to the writ petition and other relevant docu- ments on the record. The petitioner has taken a specific objection that the writ petition was filed on 25-1-84 whereas the reply to the writ petition was filed by the respondents on 3-11-93 i.e. after the inordinate delay of more than 9 years and repeated adjournments were sought by the respondent-Board in this regard. The petitioner has taken a specific objection that the writ petition was filed on 25-1-84 whereas the reply to the writ petition was filed by the respondents on 3-11-93 i.e. after the inordinate delay of more than 9 years and repeated adjournments were sought by the respondent-Board in this regard. In my considered opinion this itself shows the conduct of the respon- dent-Board who have scant regard to the directions issued by this Court by deliberately not filing the reply to the writ petition within time inspite of several opportunities sought for by the respondent-Board. Therefore, the respondent-Board does not deserve any indulgence by this Court. (14). I am further of the considered opinion that as per clause 24 of the Agreement (Annex-1) it has been clearly provided that initial period of agreement was for 5 years from the date of supply of electricity and it has been provided therein that either parties are at liberty to determine the said agreement, before the expiry of the initial period of 5 years on giving the other party not less than 6 months, notice in writing. It has been further provided that on the expiry of the period of notice the Agreement shall stand automatically determined. It has, nowhere, been provided that the consumer has to secure an order for assessment or determination of the contract even after the expiry of the period of 6 months. I am of the opinion that the respondents have placed erroneous interpretation on the vires of the Agreement and they are not entitled to any benefit on account of their erroneous interpretation to the said agreement in this regard. I am further of the opinion that any dispute regarding reference of the matter to the Chief Engineer for arbitration does not arise in this case in view of the clearcut terms and conditions of the Agreement which already stood determined after the expiry of contractual period of 5 years. In any event , if the dispute was to be referred for the arbitration of Chief Engineer by the respondent-Board, it should have been done before the expiry of the contractual period and not thereafter. In any event , if the dispute was to be referred for the arbitration of Chief Engineer by the respondent-Board, it should have been done before the expiry of the contractual period and not thereafter. I have been informed by the learned counsel for the peti- tioner that the point regarding reference of the dispute had already been decided by this Court in the case of `Man Industrial Corporation and hence the point is no more alive and the respondent-Board cannot be permitted to raise its plea at this belated stage. (15). I am further of the opinion that the respondent - Board has taken an erroneous plea about non-filing of the application by the petitioner for determination of the Agreement which is a deliberate demand on the part of the respondents to deprive the petitioner of its bonafide claim for supply of electricity since the frequent power-cuts and trippings were imposed on the petitioner deliberately by the respondent-Board contrary to the spirit of the Agreement and with a view to deprive the petitioner-industry of the legitimate benefits of the same. Clause 24 of the Agreement does not provide any condition regarding making of such application and hence the petitioner- industry was not required to give any fresh application in any particular form to the respondent-Board. (16). After hearing the learned counsel for the parties and after examining their rival claims and contentions and also on perusal of the relevant documents as well as the written submissions placed on the record, the petitioner deserves to succeed and accordingly the writ petition is allowed, the impugned bills raised on the petitioner for the billing period May, 1983 to August , 1983 are quashed and set aside. The respondent - Board is directed not to recover the amount of arrears of the impugned bills for the disputed period from the petitioner amounting to Rs. 84,723.87 paisa. In case the petitioner had already paid the said amount to the respondent-Board, the same shall be refunded to the petitioner with interest at the rate of 12% per annum thereon. It is further directed that the respondent-Board shall send the revised bills to the petitioner for the billing months of May, 1983 to August, 1983 on the basis of actual consumption and not on the basis of the original agreement which stood determined in view of the provisions of Clause 24 of the Agreement. It is further directed that the respondent-Board shall send the revised bills to the petitioner for the billing months of May, 1983 to August, 1983 on the basis of actual consumption and not on the basis of the original agreement which stood determined in view of the provisions of Clause 24 of the Agreement. There is no order as to costs.