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High Court Of Rajasthan
Judgename : J.S.VERMA,I.S.ISRANI
D.C.M.LTD. - Appellant
Versus
ASSTT.ENGINEER (HMT SUB-DIVN.), R.S.E.B., KOTA - Respondent
S. A. 274 Of 1986
Decided On : 04/22/1987
ELECTRICITY - MINIMUM CHARGES - DISCRIMINATION - VALIDITY OF CONDITION - CONTRACT OF ADHESION - WRIT JURISDICTION - CONSTITUTION OF INDIA, ARTS. 14, 226 - ELECTRICITY (SUPPLY) ACT, 1948, SS. 26, 44, 49 - INDIAN ELECTRICITY ACT, 1910, SS. 22, 22-B, 23, 24, SCH. VI, CL. VI - RAJASTHAN STATE ELECTRICITY BOARD (RSEB) - Held, the condition in Cl. 16 (c) of the supplementary agreement dt. Dec. 15, 1981 requiring the petitioner to pay minimum charges in excess of the normal rates prescribed for other similar heavy consumers contravenes the aforesaid statutory provisions, particularly S. 22 and Clause VI of the Schedule to the Indian Electricity Act, 1910 read with S. 26 and Sub-Ss. (1) and (4) of S. 49 of the Electricity (Supply) Act, 1948; and it also contravenes the petitioners right of equality under Art. 14 of the Constitution. Cl. 16 (c) is, therefore, invalid to this extent and is not enforceable against the petitioner.
Fact of the Case:
The petitioner D. C. M. Limited owns a number of industrial units in Kota in the State of Rajasthan of which M/s. Shriram Fertilizers and Chemicals is one. For this Fertilizer plant the petitioner obtained a connection for supply of electricity which was given by the RSEB vide agreement dt. /- Feb. 8, 1973 under which the contract demand was 6 MW and the minimum charges payable were at the rate of 130 units per KVA. Thereafter the contract demand to the petitioners Fertilizer plant was increased to 15 MW vide supplementary agreement dt. /- April 18, 1974 and the minimum charges continued to remain at the rate of 130 units per KVA. The petitioner made an application dt. /- Sept. 21, 1977 for increase of the contract demand to the Fertilizer plant to 20 MW. There is some controversy between the parties whether the petitioner voluntarily agreed thereafter to increase the contract demand to 25 MW instead of 20 MW, According to the petitioner the consent for increase of contract demand to 25 MW instead of 20 MW was given by petitioner vide letter dt. /- Aug. 1, 1978 under compulsion, since the RSEB insisted on increase to that extent, while the RSEB avers that this increase to 25 MW was at the petitioners instance. However, the merits of this controversy need not be gone into, since that is not material for decision of the points involved in this appeal. Factually the contract demand was increased to 25 MW for which the peitioner gave consent vide letter dt. /- Aug. 1, 1978 resulting in the execution of the supplementary agreement dt. /- Dec. 15, 1981 amending the initial agreement dt. /- Feb. 8, 1973 to this extent. The significant addition in this supplementary agreement dt. /- Dec. 15, 1981 was the insertion of Cl. 16 (c) providing for payment of minimum charges by the petitioner at the rate of 372. 30 units per KVA instead of the earlier minimum charges at the rate of 130 units per KVA.
Finding of the Court:
The condition in Cl. 16 (c) of the supplementary agreement dt. Dec. 15, 1981 requiring the petitioner to pay minimum charges in excess of the normal rates prescribed for other similar heavy consumers contravenes the aforesaid statutory provisions, particularly S. 22 and Clause VI of the Schedule to the Indian Electricity Act, 1910 read with S. 26 and Sub-Ss. (1) and (4) of S. 49 of the Electricity (Supply) Act, 1948; and it also contravenes the petitioners right of equality under Art. 14 of the Constitution. Cl. 16 (c) is, therefore, invalid to this extent and is not enforceable against the petitioner.
Issues: Whether, Cl. 16 (c) of the supplementary agreement dt. /- Dec. 15, 1981 which requires the petitioners to pay minimum charges at the rate of 372. 30 units per KVA per month of the contract demand of 25 MW of electricity supplied to the petitioners Fertilizer plant at Kota, instead of the normal rate of 130 units per KVA applied to all other such heavy consumers, is invalid and, therefore, not enforceable against the petitioners ?
Ratio Decidendi: The condition in Cl. 16 (c) of the supplementary agreement dt. Dec. 15, 1981 requiring the petitioner to pay minimum charges in excess of the normal rates prescribed for other similar heavy consumers contravenes the aforesaid statutory provisions, particularly S. 22 and Clause VI of the Schedule to the Indian Electricity Act, 1910 read with S. 26 and Sub-Ss. (1) and (4) of S. 49 of the Electricity (Supply) Act, 1948; and it also contravenes the petitioners right of equality under Art. 14 of the Constitution. Cl. 16 (c) is, therefore, invalid to this extent and is not enforceable against the petitioner.
Final Decision: Appeal allowed.
J. S. VERMA, C. J.
( 1 ) THIS is a special appeal against the order of a learned single Judge (N. M. Kasliwal) in S. B. Civil Writ Petition No. 1024 of 1984, decided on May 14, 1986 by which the writ petition has been partly allowed to the extent a concession was made by the respondent-Rajasthan State Electricity Board (hereinafter to be referred to as the R. S. E. B. ), but has been dismissed for the remaining part. The only relief granted to the petitioners on the basis of the concession made by the R. S. E. B. is a direction for proportionate reduction in the minimum charges claimed by the R. S. E. B. to the extent of the power cuts during the relevant billing month; revision of the bills for payment of minimum charges on this basis; and refund if any, due to the petitioners as a result of revision of the bills. The main grievance of the petitioners in the writ petition that Cl. 16 (c) of the agreement dt. /- Dec. 15, 1981 between petitioners and R. S. E. B. , particulars of which are stated hereafter, requiring payment of minimum charges at almost three times the normal rate specified for other similar heavy consumers being invalid cannot be enforced still survives, since the petition has been dismissed to that extent. This appeal re-agitates the same point in its various facets.
( 2 ) SHORTLY, stated the main point for decision in this appeal, subject to the preliminary objections raised on behalf of the R. S. E. B. which are mentioned later, is : whether, Cl. 16 (c) of the supplementary agreement dt. /- Dec. 15, 1981 which requires the petitioners to pay minimum charges at the rate of 372. 30 units per KVA per month of the contract demand of 25 MW of electricity supplied to the petitioners Fertilizer plant at Kota, instead of the normal rate of 130 units per KVA applied to all other such heavy consumers, is invalid and, therefore, not enforceable against the petitioners ? The further question is whether this relief can be granted to the petitioners in a writ petition under Art. 226 of the Constitution. This other question has to be answered with reference to the preliminary objections raised on behalf of the R. S. E. B. bearing in mind the fact that the learned single Judge granted partial relief to the petitioners in the writ petition and that too on the basis of a concession made on behalf of the R. S. E. B. for reduction in the amount of minimum charges proportionate to the power cuts imposed by the R. S. E. B. during the relevant billing month. Accordingly, at least to this extent, availability of the writ jurisdiction was not disputed and grant of that relief by the learned single Judge has also not been challenged by the R. S. E. B. There is some controversy about the exact amount by which the minimum charges claimed by the R. S. E. B. under the aforesaid Cl. 16 (c) have been reduced as a result of this relief granted in the writ petition against which no grievance has been made by the R. S. E. B. but it is common ground that the relief is substantial amounting to a large sum of money and the same is not material for deciding the points involved in this appeal. This fact is mentioned merely to emphasise that the preliminary objections to maintainability of the writ petition raised at the hearing of this appeal are common and apply equally even to the relief already granted by the learned single Judge on the concession made on behalf of the R. S. E. B. Therefore, the question is whether the remaining grievance of the petitioners should not be considered and decided on merits in spite of this position.
( 3 ) THE material facts which are few may now be stated. The petitioner D. C. M. Limited owns a number of industrial units in Kota in the State of Rajasthan of which M/s. Shriram Fertilizers and Chemicals is one. For this Fertilizer plant the petitioner obtained a connection for supply of electricity which was given by the R. S. E. B. vide agreement dt. /- Feb. 8, 1973 under which the contract demand was 6
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