The court held that a consumer is not liable to pay bills raised on the basis of average consumption of electrical energy if the Board has failed to supply adequate electrical energy.

S.B.SINHA, J.

1. In this application, the petitioner which is a company incorporated under the Indian Companies Act, 1956 question the bills raised by the Bihar State Electricity Board (hereinafter referred to as the Board) during the period March, 199 2/06/1992.

2. The fact of the matter is not in dispute. The petitioner is a consumer of High Tension electrical energy having contract demand of 1275 K.V.A. of electrical energy in terms of an agreement dated 23-5-1979 as contained in Annexure 1 to the writ application. The Board installed a Trivector meter wherefor the petitioner has to pay rent. The transformer however was installed by the petitioner. According to the petitioner owing to highly unstable and erratic main supply voltage the current transfarmer and potential transformer (C.T.P.T.) of the Boards trivector meter was burnt on 9-5-1990. As the meter was burnt, the petitioner was billed on the basis of 4.03,528 units per month which was said to be the average unit consumed recorded during January, February and March, 1990. The meter however became functional on or from 1/07/1992. The grievance of the petitioner is that during the period March, 199 2/06/1992 there had been inadequate supply of electrical energy as a result whereof the petitioner could not have even consumed units of electrical energy calculated on the basis of three months average supply.

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.

4. Learned counsel drew our attention to the amount of bill which used to be paid previously by the consumer and which has to be paid now. He, therefore, submitted that clause 16.8 of 1991 tariff must be held to be irrational as no provision therein has been made for grant of proportionate reduction in the matter of consumption of electrical energy. Learned counsel submitted that clause 3(c) of the agreement has to be read with clause 6(1) and if the same is compared with clause 16.8 of the new tariff, it must be held that the same is wholly irrational.

5. Mr. Singh has further submitted that whereas clause 13 of the High Tension Agreement provides for redressal of the consumers grievance of obtaining proportionate reduction in minimum guarantee charges in case of non-supply/ short supply of the electrical energy but no provision has been made in relation to consumption of the electrical energy. Learned counsel in this connection has relied upon a decision of the Supreme Court in M/s. Northern Indian Iron and Steel Co. V/s. The State of Haryana reported in AIR 1976 SC 1100.

6. Mr. Shiva Kirti Singh, learned counsel appearing on behalf of the Board on the other hand submitted that clause 16.8 of the tariff has been held to be intra vires by Division Bench of this Court in Bihar Chamber of Commerce V/s. Bihar State Electricity Board reported in (1993) 1 Pat LJR 36. He further submitted that the clause relating to raising of bill on average consumption of electrical energy must be held to be rational and even if there has been short supply of electrical energy the consumer cannot raise any grievance in relation thereto.

7. In this case evidently the meter was burnt on 9-5-1990 and the petitioner did not make any protest with regard to the bills raised on the basis of average consumption of electrical energy from January, February and March, 1990; till February, 1992. Admittedly it has also paid the bills for the month of March and April, 1992. It is true that normally consumer is supposed to