Judgment

Arijit Pasayat, J.—These appeals are directed against the judgments rendered by a Division Bench of the Allahabad High Court. The main judgment was rendered in Civil Misc. Writ Petition No. 5859 of 1999 which is the subject-matter of challenge in Civil Appeal No. 7965 of 2001. Following the judgment rendered in the said case other writ petitions were disposed of. In each of the writ petitions filed before the High Court correctness of the electricity bills raised by the appellant no.1-Uttar Pradesh State Electricity Board (hereinafter referred to as the ‘Board’) was questioned. The High Court by the impugned judgment held that the Board was as authority under Article 12 of the Constitution of India, 1950 (in short ‘the Constitution’) and similar was the position so far as the writ petitioners are concerned who according to the High Court were Public Sector Undertakings. The High Court held that in cases where the dispute involves the State Government and a Public Sector Undertaking, Committee in the line indicated by this Court in Oil and Natural Gas Commission and Another v. Collector of Central Excise [1992 Supp (2) SCC 432] (for convenience referred to as ONGC-I) should be set up. Accordingly it was observed that the writ petitioners would move the State through the Chief Secretary to constitute a Committee to resolve the dispute. Further direction was given to the effect that the power supply to the writ petitioners was not to be discontinued.

2. According to the appellant-Board factual position is as follows:-

State Government issued a notification under Section 22-B of the Indian Electricity Act, 1910 (in short ‘Electricity Act’) titled as Uttar Pradesh Electricity (Regulation of Distribution, Consumption) Order 1972 (in short the ‘1972 Order’) which imposed certain restrictions on various categories of consumers for using electricity during certain periods. The 1972 Order was repealed and in the year 1977 another Notification under Section 22-B, known as Uttar Pradesh Electricity (Regulation of Supply, Distribution, Consumption and Use) Order 1977 (in short ‘1977 Order’) was issued. In this order consumers were divided into several categories and so far as the Industrial Consumers are concerned two categories were indicated. They are “Continuous Process Industries Power Consumers” and “Non-continuous Process Industries Power Consumers”. List of consumers belonging to the aforesaid category was annexed as Annexure 2 of the said Order. It was provided in the 1977 Order that Non-continuous Process Industries Power Consumers would not use electricity from 18.00 to 22.00 hours every day. It meant that the distinction between the Continuous Process Industries Power Consumers and the Non-Continuous Process Industries Power Consumers was that peak hours restrictions, not to use electricity were not applicable in case of Continuous Process Industries Power Consumers. The spinning mills and textiles Mills were exempted from observing power cutting during peak hours as per clause 8 of the Order and thus these industries also were covered by category “Continuous Process Industries”.

3. The Writ Petitioners were co-operative societies registered under Uttar Pradesh Co-operative Societies Act, 1965. Undisputedly they had entered into agreements with the Board and one of the clauses in the agreement provided that supply shall be available to the consumers continuously during 24 hours of each day and throughout whole period of agreement. This Clause was however, subject to the following restrictions:

“Supplier shall not be responsible for the damages or otherwise on account of accidental interruption of supply or stoppage or deficiency of energy caused by any order or direction issued by the Government of U.P. or resulting from fire, flood, temptest or any accident or from any strike or lock out of workers or from any other cause beyond the control of the supplier but the supplier shall make every effort to restore the supply as so