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High Court Of Madhya Pradesh
J. S. Verma and M. L. Malik, JJ.
JIYAJEERAO COTTON MILLS LTD. - Appellant
Versus
MADHYA PRADESH ELECTRICITY BOARD - Respondents
Misc. Petn. 888 Of 1981
Decided On : 09/23/1982
The generating capacity of the alternative source available to different such consumers being variable, this non-essential function had necessarily to be left for determination in each individual case to an expert and this does not amount to further delegation of an essential function by the State Government to the Divisional Engineer. Clause 3 does not leave any discretion, much less unfettered discretion on any essential feature to either the Divisional Engineer or any other officer or the Board itself, as it provides for reduction of Board's supply of the power to any such consumer to the extent the consumer has his own source of generating power. Clause 3 of the Generation order does not, therefore, suffer from the vice of impermissible delegation of an essential function by the State Government is favour of the Divisional Engineer and it is, therefore, not ultra vires section 22-B of the Indian Electricity Act. [Para 14
(2) Constitution of India-Arts. 14 and 19 (1) (g)-Electricity, Control and Consumption Order, 1975 (MP)-Clause 3-provision under Clause 3 of order-is not voilative of Art. 14 or 19 (1) (g) of Constitution.
The attack to the validity of clause 3 of the Generation Order is mainly on the ground that there arc no guidelines therein for assessment of the generating capacity of the alternative sources of generation and, therefore, unfettered powers are conferred on the Divisional Engineer, who has to act there under. It is urged that the conferment of such arbitrary powers violates Article 14 of the Constitution and such a restriction not being reasonable is violative also of Article 19 (1) (g).
The expression 'technically feasible' used in clause 3 with the requirement of prior consultation with the local Manager or Engineer in charge of the set mentioned in proviso (i) therein, provides sufficient guidelines to regulate the assessment and exclude any element of arbitrariness therein. In this connection, clause 6 of the Generation Order is also relevant, which provides a machinery for deciding any dispute raised by the consumer to the assessment made by the Divisional Engineer under clauses 3 and 4. Obviously, in deciding a dispute under clause 6, the Electrical Advisor and the Chief Electrical Inspector is required to re-examine whether the assessment made by the Divisional Engineer is technically feasible is a particular case, keeping in view the factors given out by he local Manager or the Engineer in charge of the set, during consultation with him. The provision for resolving the dispute in such a manner contained in clause 6 also negatives the argument of conferring arbitrary powers on the Divisional Engineer under clause 3.
The suggestion that the final authority for confirming or modifying the assessment made by the Divisional Engineer should have been retained by the State Government in each case is difficult to accept, inasmuch as, having laid down the policy or principle necessary for the purpose of section 22-B, its implementation had to be left to the Board and its officers. Clause 3 of the Generation Order is, therefore, neither arbitrary nor unreasonable to be unconstitutional. [Paras 11, 15 and 16
(3) Arbitration Act, 1940 - S. 34 - provision under-does not in terms apply to writ petitions- existence of arbitration agreement-no absolute bar to such proceedings-Constitution of India-Art. 226.
(4) Constitution of India - Art. 226 - petition under-provision of S. 34, Arbitration Act, has no application-existence of arbitration agreement-no absolute bar to writ petition.
No authority was cited to support the contention that S. 34 of the Arbitration Act, in terms, applies even to a writ petition. It is extremely doubtful that section 34 would, in terms be applicable to such a proceeding. All the same, the existence of an arbitration agreement is relevant for deciding whether discretionary power under Article 226 of the Constitution should be exercised in favour of a person to whom the alternative remedy of arbitration is available. Such a provision cannot be treated as an absolute bar to the maintenance of a writ petition. [Para 18
(5) Constitution of India - Art. 236 - alternative remedy-not absolute bar to exercise power under.
Failure to resort to the available alternative remedy before invoking the High Court's jurisdiction under Art. 226 of the Constitution, is not an absolute bar to exercise of the powers under Article 226 of the Constitution and is merely a circumstance enabling the High Court to refuse exercise of this extraordinary and discretionary power, if the facts of tile case so require. [Para 19
( 1 ) THE petitioner No. 1, Jiyajeerao Cotton Mills Ltd. is an existing company within the meaning of the Companies Act. 1956, and having its registered office at Birlanagar, Gwalior, in the State of Madhya Pradesh. Petitioner No. 2, Jai Narain Somani, is a shareholder of this company, The petitioner No. 1 (hereinafter called 'the Company') has a composite textile mill at Birlangar, Gwalior, wherein it manufactures yarn and textiles. For running its mill, the company requires electricity and had entered into a contract with respondent No. 1, M. P. Electricity Board (hereinafter called 'the Board') for supply of electricity to it in accordance with the specified terms and conditions. Under the agreement dated 27-10-1971, between the company and the Board, 1500 K. W. power as an H. T. consumer, wag to be supplied by the Board to the Company and the agreement was to commence from the date reckoned according to the stipulation therein. Supply of 1590 K. W. power under this agreement commenced with effect from 3-3-1972. The agreement was later modified mentioning therein that an additional 1000 K. W. power was to be supplied with effect from 1-11-1973. The result was that under this agreement, the company was to be supplied 1500 K. W. + 1000 K. W. =2500 K. W. with effect from 1-111973. This contractual position between the Company and the Board came to be further modified by two agreements dated 11-7-1979 and 26-2-1980, under which an addition of 800 K. W. and 190 K. W. respectively was made to the earlier quantity of 2500 K. W. thereby increasing the total contract demand first to 3300 K. W. and ultimately to 3490 K. W. per month.
( 2 ) SECTION 22-B of the Indian Electricity Act, 1910 gives power to the State Government to issue orders providing for regulating the supply, distribution, consumption or use-of electrical energy for maintaining its supply and securing its equitable distribution. An order issued by the State Government under this provision supersedes the contractual obligation of the licensee (State Electricity Board) under any contract with the consumer for supply of electrical energy. The State of Madhya Pradesh (respondent No. 2) issued two orders on 4-41975 under Section 22-B of the Indian Electricity Act, called the 'ma-dhya Pradesh Electricity Supply and Consumption Regulation Order, 1975. (Annexure E) (hereinafter called the 'regulation Order') and the M. P. Electricity Generation. Control and Consumption Order, 1975 (Annexure G) (hereinafter called the 'generation Order' ). Both these orders came into force on 7-4-1975. The Regulation Order was amended from time to time, retaining its basic characteristics. These orders were admittedly made by the State Government for meeting the acute power shortage in the State with a view to maintaining the supply of electrieal energy and securing its equitable distribution amongst the consumers. In brief, the Generation Order was issued to compel any consumer who also had an alternative source of generating power of his own to generate electricity from his set to the maximum extent technically feasible and to reduce the Board's supply under the contract with him to the extent of this additional generation available to him from the alternative source. The Generation Order, therefore, applies only to the consumers who had their own alternative source of generating power. The Regulation Order enabled rationing of the available electrical energy between the consumers for ensuring equitable distribution by fixing the ceiling up to which alone a consumer was entitled to draw electricity at normal tariff and providing for the charging at penal rate any consumption in excess of the ceiling fixed, in addition to conferring power to disconnect supply for violations made by the consumer.
( 3 ) WHEN the aforesaid two orders came into force on 7-4-1975, the Company was entitled to draw power up to 2500 K. W. from the Board's supply un-dcr the contract, as earlier stated.
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