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3. Mr. Navaniti Prasad Singh, learned counsel appearing on behalf of petitioner has raised short question in support of the application. Learned counsel submitted that the bills on the basis of average supply can be raised only in terms of Clause 3(c) of the agreement. But the bills have been raised on the basis of Clause 16.8 of the new tariff which came into force with effect from 20th Sept. 1991. It has been submitted that average supply of electrical energy was only 45%. In this connection our attention was drawn to paragraphs 4, 5, 6 and 7 of the supplementary affidavit.

9. The clause provided for average consumption of electrical energy not only on the basis of average reading of the previous three months but also provides that in taking such average due regards shall be given to the condition of working during the months under dispute and during the previous three months. However, it is now well known that in view of the fact that tariff framed under Sections 46 and 49 of the Electricity Supply Act has the force of statute. The terms and conditions of the supply of electrical energy are not only governed by the agreement entered into by and between the parties but the same is also governed by the provisions of tariff and if there occurs a conflict between the terms and conditions of agreement and tariff, the latter shall prevail, Reference in this connection may be made to Casting (India) Ltd. v. Bihar State Electricity Board, reported in (1993) 2 Pat LJR 34.

11. In Bihar Chamber of Commerce v. The Bihar State Electricity Board, reported in (1993) 1 Pat LJR 36, it has been held as follows:

"Mr. Pawan Kumar Rajgarhia learned counsel appearing in C.W.J.C. No. 8214 of 1991, however, submitted that the provision for average charging in case of defective meter under Clause 16.8 of the new tariff is also ultra vires and wholly illegal. According to him, Clause 3(c) of the agreement provides for charging in case of defective meter on the basis of average charging of the present three months, whereas, under the new tariff in the event of meter being out of order, the consumption of that month/months is to be assessed on the average consumption of the previous three months from the date of meter being out of order or the average consumption for the corresponding three months of the previous year or the consumption of the minimum guarantee charges, whichever is highest and this shall continue until the meter is replaced/rectified and so far as the fuel surcharge, power factor surcharge and electricity duty are concerned, they shall be levied on consumption so calculated. This, according to the learned Counsel, is wholly irrational and unreasonable. In reply, the learned counsel for the Board has rightly submitted that the provision for charging on the average etc. is only to ensure that the moment the meters are found non-functional the authority is immediately given an information about the same so that the charging may be done on such a basis which is rational and, at the same time, it is to discourage deliberate breakage/tampering with the meters by rendering such acts unbeneficial and for that these alternatives have been provided as a mode of calculation in the case of defective meter and to see that no honest consumer suffers adversely. On a consideration of the relevant provisions and other facts and circumstances, we do not find any substance in the submission of Mr. Rajgarhia that the provision of average charging in case of defective meter under Clause 16.8 of the new tariff is ultra vires or illegal."

17. The said provision evidently does not contemplate a situation where a person has to pay the bill raised on the basis of three months' average consumption of electrical energy during the preceding three months when the meter has gone out of order in case there has been a total substantial failure on the part of the Board to supply electrical energy to the consumer. In such an event Clause 16.8 has to be read along with Clause 3(c) which provides that such average bills should be raised having due regard to the conditions of working during the month under dispute and during the previous three months.