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2004 DIGILAW 86 (ALL)

Sheo Rice Mill v. State of U. P.

2004-01-16

DEVI PRASAD SINGH, JAGDISH BHALLA

body2004
JUDGMENT Devi Prasad Singh, J.—Petitioner Industry has been engaged in business carrying out for the manufacture of various items through its Roller Flour Mill. By filing the present writ petition, the petitioner has challenged the demand notice as well as the proceedings initiated under Section 3 of the U. P. Sarkari Bijli Vyavasaya Sanstha (Deon Ki Vasooli Adhiniyam), 1958 for recovery of amount to the tune of Rs. 82,091.65 paise and interest in lieu of electrical dues. The amount in question contains the amount charged under the minimum consumption guarantee against the contractual consumption load of 119.9 K.W. The dispute in question relates to the period commencing from October, 1983 to April, 1984. 2. The factual matrix borne out from the record is that partnership firm was having electrical connection of 150 H.P. The petitioner had entered into an agreement with respondent No. 3 for continuous uninterrupted supply of electricity to its Mill sometime in the year 1971. The petitioner had also deposited Rs. 23,266 to lay down an independent electricity line to its factory for continuous uninterrupted supply of electricity to meet out the petitioner’s requirement to provide the contractual load of 119.9 K.W. of electricity. Opposite party No. 3 had installed a transformer of 150 K.V.A. capacity, which was sufficient to meet out the petitioner’s requirement. On 2nd October, 1983 the transformer installed by the opposite party No. 3 was burnt. Instead of replacing the burnt transformer of 150 K.V.A. by another transformer of the same load, the opposite party No. 3 on 10th October, 1983 had installed a new transformer of 63 K.V.A. capacity. While installing the transformer of 63 K.V.A., by letter dated 10th October, 1983 the Junior Engineer of the Division concerned (Annexure-3 to the writ petition) instructed the petitioner that electricity shall not be used for any purpose except light and fan and some works of machine for the maintenance job till the replacement of transformer by a suitable one. In these facts and circumstances, the petitioner’s Mill was closed down for the period commending from October, 1983 to April, 1984. This fact has been supported by certificate issued by Senior Marketing Inspector, Bahraich dated 17th October, 1984 filed as Annexure-13 to the writ petition. In these facts and circumstances, the petitioner’s Mill was closed down for the period commending from October, 1983 to April, 1984. This fact has been supported by certificate issued by Senior Marketing Inspector, Bahraich dated 17th October, 1984 filed as Annexure-13 to the writ petition. The petitioner has submitted that the opposite party has sent bills, filed as Annexure-4 and Annexure-7 to the writ petition containing an amount assessed on the basis of minimum consumption load and contractual demand of 119.9 K.V.A. assuming that the transformer during that period was having capacity of 150 K.V.A. The transformer of the capacity of 63 K.V.A. was replaced by another transformer of 250 K.V.A. on 2nd May, 1984. It is evident from the letter of the Sub-Divisional Officer, dated 24th May, 1984 filed as Annexure-2 to the writ petition. 3. We have heard Sri P. K. Sinha, learned counsel for the petitioner, Sri S. M. K. Chaudhary and the Chief Standing Counsel representing the opposite parties. 4. During the course of arguments, it was admitted by Sri S. M. K. Chaudhary, learned Advocate for opposite party Nos. 3 to 5 that the bill sent to the petitioner and the consequential recovery proceedings initiated against the petitioner relates to amount assessed on the basis of minimum consumption guarantee and contractual demand of 119.9 K.W. relating to the period in question, i.e., October, 1983 to April, 1984. The petitioner has also specifically pleaded in paras 9, 10, 11 and 22 of the writ petition that the amount in question assessed by the opposite parties for recovery from the petitioner is on the basis of electricity purported to be supplied through 150 K.V.A. transformer and the contractual load though the Mill was closed down in the period in question on account of rider imposed by the opposite party Nos. 3 to 5. 5. In the counter-affidavit filed by Sri S. B. Pandey, Executive Engineer, Electricity Distribution Division, U. P. Power Corporation Limited, Bahraich on behalf of opposite party Nos. 3 to 5 in para 4, it has been specifically stated that the Industries are entitled to electricity supply in accordance with terms of agreement and terms of agreement shall be subject to power cuts by the State Government. It appears that while filing the counter-affidavit, the opposite party Nos. 3 to 5 in para 4, it has been specifically stated that the Industries are entitled to electricity supply in accordance with terms of agreement and terms of agreement shall be subject to power cuts by the State Government. It appears that while filing the counter-affidavit, the opposite party Nos. 3 to 5 had not taken pains to explain as to how they can charge electricity dues on the basis of minimum consumption guarantee against the transformer of 150 K.V.A. From the perusal of record and affidavits exchanged by the parties, it is borne out that the contractual demand of the petitioner’s Mill was 119.9 K.W. and accordingly initially a 150 K.V.A. transformer was installed. From 10th October, 1983 to 2nd May, 1984 there was a transformer of 63 K.V.A. lacking capacity to fulfil the contractual demand and how the opposite party No. 3 can charge electricity bill on the basis of minimum consumption guarantee which was according to contract between the parties through the agreement subject to supply of contracted demand of 119.9 K.V.A. Opposite party Nos. 3 to 5 have failed to explain this aspect in their counter-affidavit. 6. Since between October, 1983 to April, 1984 the capacity of the transformer was only 63 K.V.A. and it was not enough to fulfil the requirement of petitioner to run the industry, the opposite party Nos. 3 to 5 were not entitled to charge the minimum consumption guarantee charges as per contract or agreement. Things would be different in case opposite party Nos. 3 to 5 would have installed a transformer of the same capacity or higher capacity to fulfil the requirement of electricity supply to the petitioner as per contract or agreement. The petitioner cannot be penalised for no fault on its part. Contract or agreement binds both the parties equally and it cannot be enforced one-sided. Once a party fails to meet out its duties as per agreement then it cannot rely upon the same agreement to enforce contractual obligations. However, no doubt keeping in view the letter and spirit of the letter dated 10th October, 1983 filed as Annexure-3 to the writ petition, the opposite party Nos. 3 to 5 will be entitled to charge the dues against the actual consumption of electricity of the period from October, 1983 to April, 1984. 7. However, no doubt keeping in view the letter and spirit of the letter dated 10th October, 1983 filed as Annexure-3 to the writ petition, the opposite party Nos. 3 to 5 will be entitled to charge the dues against the actual consumption of electricity of the period from October, 1983 to April, 1984. 7. Shri P. K. Sinha, learned counsel for the petitioner has submitted that the photo-stat copy of the agreement dated 24.9.1971 which was taken on record. According to para 3 of this agreement the supplier that the opposite party Nos. 3 to 5 were duty bound to provide barriers (in the present transformer) sufficient for electricity supply. For convenience para 3 of the agreement is reproduced as under : “The supplier shall subject to the conditions laid down under clause 15 provide apparatus sufficient for the supply and the consumer shall at his own cost approved buildings for housing the apparatus so supplied. These buildings shall be so situated that the duly authorised representative of the supplier can obtain entry at any time either by day or by night and the supplier shall be permitted to open out trenches for laying or the repair of underground cable from his main to the said building if necessary.” Para 7 of the agreement further provides that the consumers have been entitled to create a maximum demand as defined in rate Schedule HV-2B (150 B.H.P. of 111.9 K.W.). Para 7 of the agreement is reproduced as under : “The consumer shall be entitled to create a maximum demand as defined in the rate Schedule HV-2B (150 B.H.P.) annexed to clause 8 hereof, of 111.9 K.W. The supplier shall provide suitable mains for the above load and the consumer shall not erect any structure over the route of any such mains described in this clause and the representative of the supplier shall have ready access thereto. The point of supply shall be at the outgoing terminals of the Supplier’s apparatus at the sub-station from which energy is conveyed to the consumer.” 8. Along with the agreement the extract of rate Schedule HV-2B has been annexed under the title “Rate Schedule HV-2B (Large Power)” has been annexed disclosing the rate on which the opposite party Nos. 3 to 5 shall be entitled to charge electricity bill on the basis of actual consumption as well as demand charge. Along with the agreement the extract of rate Schedule HV-2B has been annexed under the title “Rate Schedule HV-2B (Large Power)” has been annexed disclosing the rate on which the opposite party Nos. 3 to 5 shall be entitled to charge electricity bill on the basis of actual consumption as well as demand charge. The rate Schedule HV-2B annexed with the agreement is reproduced as under : “Rate Schedule HV-2B (Large Power) 1. Applicability.—This rate is applicable to all consumers who have a contracted demand not less than 75 K.W. (100 B.H.P.) and more than 200 K.W. (235 K.V.A.) for industrial and processing purpose as also for State lift irrigation. Provided that pending execution of a formal agreement, the contracted demand shall also mean the demand sanctioned to the consumer. 2. Character of Service.—Alternating current, 3 phase, 3 wire, 50 cycles 11 K.V. 3. Rate of charges.— (A) The monthly bill for supply at 11 K.V. will be computed as follows : (a) Demand charge : All K.W. of billable demand during the month @ Rs. 12.00 per K.W. (b) Energy Charge : First 200 units per K.W. of the billable 8.00 p. per unit demand. Next 200 units per K.W. of billable demand 6.50 p. per unit. All in excess of 400 units per K.W. of the billable demand @ 5.50 p. per unit. (B) The supply can also be given at 6.6 K.V. or 3.3. K.V. or 400 Volts at the discretion of the supplier in which case the tariff will be higher by 5% for the supply at 6.6. K.V. or 3.3 K.V. and by 7-1/3% for the supply at 400 volts. (C) A rebate of 5% will be admissible on supply above 11 K.V. and upto 66 K.V. and a rebate of 7-1/2% will be admissible on supply above 66 K.V. Note.—The coal sur-charge will not, however, be subject to aforesaid additional charge or rebate. 4. Billable demand.—The billable demand as mentioned in para 3 above during the month shall be the actual maximum demand registered or 60% of the contracted demand, whichever is higher : Provided that during the first 3 months of the supply being initially made available the consumer shall be liable to pay for the actual maximum demand only. 5. Coal Price Variation adjustment.—The above energy charge shall be subject to the “Coal Price Variation adjustment”. 6. 5. Coal Price Variation adjustment.—The above energy charge shall be subject to the “Coal Price Variation adjustment”. 6. Determination of demand.—Demand measurement shall be made by suitable Kilowatts indicators at the point of supply. The demand for any month shall be defined as the highest average load measured in Kilowatts during any thirty consecutive minutes period of the month. In the absence of K.W. indicator demand will be assessed by the supplies. 7. Payments.—The rates given above are the net rates. In the event of the monthly bill nor being paid by the due date specified therein, the consumer shall be liable to pay a surcharge of 5 paise per hundred rupees or part thereof per day of the unpaid amount of the bill for the period by which the payment is delayed, without prejudice of the right of the Board to disconnect the supply under the usual terms and conditions. 8. Factory lighting.—The electrical energy supplied under the above tariff can be utilised by the consumers for factory lighting, which shall mean and include all the energy consumed for the factory lighting in the office, the main factory buildings, store time keeper’s office, canteen, staff clerk, library, creche dispensary staff welfare centres and compound lighting. For supply of energy to residential lines in a factory separate meter will be provided and consumption will be charged under the relevant rate schedules : Provided that if the residential lines in a factory were also connected with the factory, load prior to July 1, 1968 without a separate meter, an addition charge of 25 paise per unit will be levied on all the units consumed by the such factory during the month. 9. Single point delivery.—The power will be supplied to the consumer at a single point for the entire premises. Provided that the power may be supplied (subject to technical feasibility) on the request of the consumer at more points than one, but in such a case metering and billing will be done at each point of supply separately. For the Sheo Rice and Flour Mills Sd. Krishna Gopal Sd. Illegible Partner Executive Engineer CONSUMER Hydel Division Bahraich,” 9. Shri S. M. K. Chaudhary learned counsel for the opposite party Nos. 3 to 5 has given a photo-state copy of the tariff rate of rate Schedule HV 1 stating that it shall be applicable. For the Sheo Rice and Flour Mills Sd. Krishna Gopal Sd. Illegible Partner Executive Engineer CONSUMER Hydel Division Bahraich,” 9. Shri S. M. K. Chaudhary learned counsel for the opposite party Nos. 3 to 5 has given a photo-state copy of the tariff rate of rate Schedule HV 1 stating that it shall be applicable. However, since along with the contract or the agreement, the rate Schedule HV-2B has been made applicable, the opposite party Nos. 3 to 5 can charge only on the basis of rate Schedule HV-2B being part of the agreement. 10. Shri S. M. K. Chaudhary has further submitted that the meter installed at the industry discloses two things : (1) the unit charge, and (2) the demand charge. The unit charge reflects the actual consumption and the demand charge is levied in accordance to contractual load as mentioned in tariff rate through HV-2B. The demand charge shall always be in accordance to contractual load. Since on account of transformer of 63 K.V.A. and restriction imposed by letter dated 10th October, 1983, the industry was closed down during the concerned period, opposite parties were not entitled to issue bill including citation of recovery and proceed with auction and sale for recovery under the assumption that they supplied electricity in accordance to contractual load of 119.9 K.W. through a transformer of requisite capacity. 11. Under the above facts and circumstances of the case, the writ petition deserves to be allowed. A writ in the nature of certiorari is issued quashing the impugned notices, orders and citations filed as Annexures-14 and 15 to the writ petition with consequential benefits. Opposite parties shall re-assess the electricity dues in the light of the observations made hereinabove and shall adjust the amount in case already paid by the petitioner in lieu of use of electricity. It shall be open to the opposite parties to send fresh bills to the petitioner in case there exist dues against the consumption of electricity for the period from October, 1983 to April, 1984 keeping in view the observation made hereinabove without charging any interest as there is no fault on the part of the petitioner. It shall be open for the petitioner to represent the opposite parties for other reliefs claimed in the writ petition, which involves disputed question of facts, which shall be adjudicated upon by the opposite party Nos. It shall be open for the petitioner to represent the opposite parties for other reliefs claimed in the writ petition, which involves disputed question of facts, which shall be adjudicated upon by the opposite party Nos. 3 to 5 within a period of two months from the date of receipt of a copy of the judgment keeping in view the observations made hereinabove. 12. Under above facts and circumstances, the writ petition is allowed with costs in the manner stated hereinabove.