Patna High Court
Asia Insulated Wires Private Ltd And ... vs The South Bihar And Cotanagpur Area ... on 29 August, 1991
Equivalent citations: 1992(1)BLJR405
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This writ application is directed against an order dated 3-4-1987 passed by the respondent No. 2 as contained in Annexure 2 to the writ application, whereby and where under he rejected a claim application of the petitioners filed under Clause 13 of the High Tension Agreement entered into by and between the petitioners and the respondent No. 1.
2. The fact of the matter lies in a very narrow compass.
3. The petitioners are consumers of electrical energy, which is supplied by the respondent-Board in terms of an agreement entered into by and between petitioners and the respondent-Board in the year 1978.
4. According to the petitioners he has to pay minimum guaranteed charges on the contract demand namely 11 kV computed at 25 per cent load factor, 83 power factor in the following manner:
Contract Demand X 25/100 X 80/100 X 8760 Hrs.
(i.e, 365 days x 24 with 75% of the contract demand payable every month).
5. The petitioner has contended that during the relevant years there was non-supply of electrical energy, power cuts and trappings. According to the petitioner, it filed a claim petition in terms of Clause 13 of the High Tension Agreement for the period 1978-79 to 1982-83 but despite the same the respondents threatened dis-connection of electrical energy for nonpayment of AGM charges and thus it had filed a writ petition in this Court being CWJC No. 906 of 1983 (R) wherein by an order dated 4-1-1983 the respondent No, 2 was directed to dispose of the claim petition of the petitioner within six months from the date of receipt of a copy of the said order dated4-8-1983 (Annexure 1).
6. The respondent No. 2, by reason of the impugned order dated 3-4-1987 (Annexure 2), rejected the said claim of Rs. 2,17,496.36 paise for the period 1978-79 to 1985-86 and also rejected the claim of the petitioner for the years 1983-84 to 1985-86.
7. The petitioner has questioned the correctness of the said order before this inter alia on the ground that the respondent No. 2 while passing the said order took into consideration various irrelevant facts and failed to take into consideration the relevant facts.
8. In this case a counter-affidavit as been filed on behalf of the respondents.
9. Mr. R.K. Marathia, the learned Counsel appearing on behalf of the petitioners has raised three contentions in support of this application. Firstly, the learned Counsel submitted that the respondent No. 2 misdirected himself in holding that as the petitioner did not fill up column Nos. 8 and 9 of the form prescribed for lodging the claim, non-supply of the electrical energy must be held due to reasons incidental to the business of electricity.
10. The learned Counsel further submitted that in Clause III of Paragraph 5 to the impugned order, the respondent No. 2 took into consideration the percentage of power requirement by the Board, which is wholly irrelevant. It was next contended that the respondent No. 2 has misdirected himself in not taking into consideration the short-fall for non-supply of electrical energy for small duration but in fact non-supply of electrical energy was also long duration which would be evident from the registers maintained by the petitioner and which were produced before' the respondent No. 2.
11. Mr. B.S. Lal, the learned Counsel appearing on behalf of the respondent-Board, on the other hand, submitted that Clauses 8 and 9 were meant for the consumers and the finding to the fact that in true sense non-supply of electrical energy was only due to incidental to the business of the electricity was not a basis for passing the impugned order.
12. The learned Counsel further submitted that so far as the finding of the respondent No. 2 in Clause III of paragraph 5 of the impugned order is concerned, the respondent Nos. 2 has dealt with the amount of electrical energy supplied to the petitioner during the relevant period.
13. Clause 13 of the High Tension Agreement reads as follows:
If at any time the consumer is prevented from receiving or using the electrical energy to be supplied under this agreement either in whole, or in part due to strikes, riots, fire, floods, explosion, act of God or any other cause reasonably beyond control or if the Board is prevented from supplying or unable to supply such electrical energy owing to any or all the causes mentioned above, then the demand charge and guaranteed energy charge set out in the Schedule shall be reduced in proportion to the ability of the consumer to take or the Board to supply such power and decision of Chief Engineer, Bihar State Electricity Board, in this regard shall be final.
Note. The term Chief Engineer includes Additional Chief Engineer for the area concerned.
14. From the following Chart, it would appear the amount of claim made by the petitioner for proportional reduction in the matter of payment of AMG charges:
_________________________________________________________________________ SL. Year Amount of claim Cause of claim NO. --------------- ------------------
Annual guaranteed Demand Total
Energy charge charges
Rs.
1 1978-79 7,355.69 Nil 7,355.69 No elec. supply
from Board
2. 1979-80 17,368.26 Nil 17,368.26 do
3. 1980-81 14,882.09 Nil 14,882.09 do
4. 1981-82 23,109.12 Nil 23,109.12 do
5. 1982-83 15,543.20 Nil 15,543.20 do
6. 1983-84 19,517.00 7,000.00 26,517.00 Elec. supply
was not made
available
7. 1984-85 49.321.00 7,000,00 56,321.00 do
8. 1985-86 49,400.00 7,000.00 56,400.00 do
____________________________________________________________
1,96,496.36 21,000.0 2,17,496.36
15. From a perusal of the impugned order as contained in Annexure 2 to the writ application, it appears that both the parties produced their records to establish their respective cases. The respondent No. 2, however, in his impugned order as contained in Annexure 2 to the writ application has not referred to any particular record produced by any of the parties.
16. The petitioner in paragraphs 17 and 21 of the writ application stated as follows:
The continuous abrupt power failures cannot be termed as "reasons incidental to business". From the statements produced before respondent No. 2 it was apparent that the power failures ranged between 5 minutes and 10 hours and thus the respondent No 2 has committed serious error of record and has acted with bias and mala fide.
That the petitioners have also produced statement/register showing in detail about the power tripping before the respondent No. 2.
17. These averments of the petitioner have not been disputed nor could be disputed as in the impugned order itself the respondent No. 2 as mentioned that the parties had produced various records before him.
18. Mr. R.K. Marathia, the learned Counsel appearing on behalf of the petitioner produced a number of registers purported to be records of power failure. It appears that therein the details of power failure and/or trappings have been mentioned.
19. According to Mr. Marathia, the said records also bear the signature of an officer of the Bihar State Electricity Board.
20. From a perusal of the said registers, it appears that the petitioner therein recorded non-supply of electrical energy for different length of time.
21. The respondent No. 2, therefore, must be held to have misdirected himself in coming to the following conclusion:
From the interruption statement made available by the consumer it is seen that interruptions are of very short duration which are not available and are reasons incidental to business in case of electricity supply business.
22. The High Tension Agreement as such does not require that a claim petition has to be filed on a particular pro forma. It is accepted by the parties that, however, a pro forma has been prescribed in which the claim petitions in terms of Clause 13 of the High Tension Agreement are required to be filed.
23. Clauses 8 and 9 of the said paid pro forma read as follows:
(8) Certified copy/copies of letters by which the A.E.E./E.E.E. orth. Revenue Accounts Officer was/were informed by the consumer immediately after the occurrence of the inability to receive or use of electrical energy supplied by the Board.
(9) Why the clause under which reduction in demand charge and guaranteed energy charge set out in the Schedule to the Agreement proportionate to the inability of the consumer to take supply of power as claimed by the consumer should not be treated as 'reasons incidental to business'.
24. Mr. Marathia, however, submitted that in a case of this nature where non-supply of electrical energy takes place on several occasions on a particular date, it is not possible to fulfill the terms of the said provisions. The learned Counsel may be correct.
25. As noticed hereinbefore, the requirement of furnishing the information about a tripping or power cuts immediately after the same taken place proves the bona fide of the consumer. The consumer may also prove the said fact from other records maintained by it and/or in the office of the Bihar State Electricity Board.
26. So far as Clause (9) of the said pro forma is concerned, Mr. B.S. Lal has rightly suggested that it applies only in such a case where consumer is prevented from using the electrical energy for reasons, which are incidental to his business.
27. It is, therefore, clear that Clause (g) aforementioned has got nothing to do with non-supply of electrical energy for reasons incidental to the business of electricity. The business of supply of electrical energy is being carried out by the Board. A Board being a party to the agreement for supplying electrical energy is bound by the terms thereof and if the case falls within one or the other clauses mentioned in Clause 13 of the High Tension Agreement, the consumer is entitled to obtain proportionate reduction in the matter of payment of A.M.G. charges.
28. The findings of the respondent No. 2 as reported in Clause II of paragraph 5 of the impugned order is, therefore, wholly irrelevant for the purpose of adjudicating the claim of a consumer in terms of Clause 13 of the High Tension Agreement.
29. So far as the findings of the respondent No. 2 in Clause III of paragraph5 is concerned, it is not understandable at all as to how the percentage of power requirement by the Board has been arrived at from the contents of the consumer's claim application. The percentage of supply of electrical energy to the petitioner could be found out only from the records maintained by the Bihar State Electricity Board and not from the records of the consumer. As no reason has been assigned by the respondent No. 2 in arriving at this finding, the same also cannot be sustained.
30. The findings of the respondent No. 2 arrived at in Clause IV of paragraph 5 of the impugned order also appears to be not supported by any cogent reason whatsoever. As per its own findings, the installed load at the factory premises of the petitioner was 65.3 KVA in the year 1978-79 and 93 kVA in the rest of the year and connected load was 100 kVA.
31. In such a situation to me it appears that the respondent No. 2 should have assigned some reasons for the purpose of demonstrating as to how the installed capacity of 93 kVA could not consume the electrical energy to the extent of 25 per cent power factor.
32. In view of various decisions of the Supreme Court of India, it is now well-settled that the respondent-Board is entitled to the A.M.G. charges and in a case of non-supply or short supply of electrical energy or for any other reasons, a consumer is entitled to get proportionate reduction therefrom in terms of Clause 13 of the High Tension Agreement.
33. In Bihar State Electricity Board and Anr. v. Dhanawat Rice and Oil Mills reported in AIR 1989 SC 1080, it was held:
It appears that reading Clause 13 in the present case clearly provides for the contingency and it provides for the failure on the part of the supplier and also failure on the part of consumer in the circumstances like strike riot, fire flood explosion or act of God or any other reason beyond the control of either of the parties.
The Supreme Court quoted Clause 13 of the agreement and held:
In view of this language of the clause clearly providing for the proportionate reduction of the annual minimum guarantee bills it could not be doubted that the High Court was not right in coming to the conclusion that the respondents were not liable to pay annual minimum guarantee bills at all. The judgment of this Court also clearly indicated that the respondent's consumers are entitled to a proportionate reduction of the minimum guarantee bills. In Clause 13 of the agreement this is clearly stated that the authority competent to determine the proportionate reduction is the Chief Engineer and it appears that it was because of this that the respondents-consumers approached the Chief Engineer for consideration. But it appears that the learned Chief Engineer also did not clearly understand the meaning of Clause 13. The judgments of the High Court on which reliance is placed have only followed the judgment referred to above.
34. In Bihar State Electricity Board, Patna v. Green Rubber Industries, , the Supreme Court again held that the agreement for supply of electricity by Board with the stipulation to pay minimum guaranteed charges, irrespective of whether energy was consumed or not would be valid, It held:
Considered by the test of reasonableness it cannot be said to be unreasonable inasmuch as the supply of 'electricity to a consumer involves incurring of overhead installation expenses by the Board which do not vary with the quantity of electricity consumed and the installation has to be continued irrespective of whether the energy is consumed or not until the agreement comes to an end. Every contract is to be considered with reference to its object end the whole of its terms and accordingly the whole context must be considered in endeavoring to collect the intention of the parties, even though the immediate object of enquiry is the meaning of an isolated clause. This agreement with the stipulation of minimum guaranteed charges couldn't be held to be ultrr vires on the ground that it is incompatible with the statutory duty. Difference between this contractual element and the statutory duty have to be observed, A supply agreement to a consumer makes his relation with the Board mainly contractual.
35. Yet, recently, in Andhra Steel Corporation Ltd. v. Andhra Pradesh State Electricity Board , the Supreme Court followed M/s. Green Rubber Industries', case (supra) and held:
With regard to this submission it is at the out set necessary to appreciate the genesis of prescription minimum charges. To put it succinctly the purpose of prescribing minimum charges is to ensure that no undue loss is caused to the Electricity Board because the absence of minimum charges is likely to create a tendency in a prospective consumer to have connection for an inflated requirement and having agreed to meet such requirement the Electricity Board would be under an obligation to maintain the supply up to that requirement even if no or very little energy it consumed. In Amalgamated Electricity Co. Ltd. v. Jalgaon Borough Municipality , it held in paragraph 9 of the report: (SCC pp. 511-12, para 9):
Moreover it is obvious that if the pLalntiff company was to give bulk supply of electricity at a confessional rate of 0.5 anna per unit it had to lay down lines and to keep the power ready for being supplied as and when required The consumers could put their switches on whenever they liked and, therefore, the pLalntiff had to keep everything ready so that power is supplied the moment the switch was put on. In these circumstances it was absolutely essential that the pLalntiff should have been ensured the payment of the minimum charges for the supply of electrical energy whether consumed or not so that it may be able to meet the bare maintenance expenses.
36. The respondent No. 2 has, thus, a public duty to perform when adjudicating upon a claim of consumer for proportionate reduction in the AMG charges and particularly when its order is final, it is required to consider the genuine claim of a consumer with objectivity. It must act judicially and its decision must be supported by reason.
37. Taking, thus, all facts and circumstances into consideration, I am of the view that the impugned order dated 3-4-1987 as contained in Annexure-2 to the writ application cannot be sustained.
38. In the result, this application is allowed, the impugned order dated 3-4-1987 as contained in Annexure-2 to the writ application is set aside and the respondent No. 2 is hereby directed to consider the matter afresh according to law.
39. However, it will be open to the petitioner to file before the respondent No, 2 all the records, which were earlier, produced so as to enable the respondent No. 2 to come to a just decision. It goes without saying that it would also be open to the Bihar State Electricity to produce all its records in support of its contentions. The respondent No. 2 shall make all endeavors to dispose of the matter as quickly as possible and not later than three months keeping in view of the fact that the claim petitions are of the year 1978-79 to 1985-86. But in the facts and circumstances of this case, there will be no order as to costs.