The consumer is not required to pay minimum tariff of 40% of contract load if the Board is unable to supply even less than the 40% of the contract demand.

( 1 ) THIS is a reference made by the Division Bench of this Court vide order dated 11th September 1997 in writ petition Nos. 3616/95, 3981/95, 4099/95, 169/96, 430/96, 4104/95, 431/96, 507/96 and 4711/96 to reconsider the decision given by the Division Bench of this Court in the case of M/s. Gwalior Steels Private Limited v. M. P. Electricity Board, AIR 1993 Madh Pra 118 that an obligation is on the consumer to pay 40% load factor of the contract demand every month as the minimum charge irrespective of the fact whether the M. P. Electricity Board (for short the Board) supplies 40% of the load factor every month or not.

( 2 ) IN order to dispose of this reference, facts of W. P. No. 3616 of 1995 (M/s. Raymond Limited v. State of M. P.) are taken into consideration. The petitioner is a company registered under the Companies Act, 1956, having its registered office at Ratnagiri in the State of Maharashtra. Its cement manufacturing division is situated at Gopalnagar, Tahsil Janjgir, District Bilaspur (MP ). The petitioners by way of this writ petition challenge the bill dated 18-10-1995 (Annex-P2 ). They have also prayed that the respondents 3 and 4 be directed to reduce the amount of bill dated 18-10-1995. In this connection, a question arose whether the petitioner is entitled to any reduction in the amount of bill or not as per Clause 23 (a) and 23 (b) of the Agreement dated 27-3-1979 (Annexure-P1/a ). The petitioners have pointed out that on account of inability of the Board to supply the full power, the petitioner Company had to suffer a great loss. In that connection, a reference was made to a decision of this Court in the case of Gwalior Steels Privatelimited, AIR 1993 Madh Pra 118 (supra) and it was pointed out that the petitioner company is being billed on the basis of 40% load factor of the contract as minimum charges irrespective of the fact whether the petitioner Company received 40% load factor supply or not.

( 3 ) LEARNED counsel for the petitioners submitted that the ratio laid down in the aforesaid case requires reconsideration because the contract is unconscionable as the consumer is required to pay 40% of the load factor irrespective of the fact whether the respondent-Board supplies the energy or not. Arguments were raised from both sides and on being persuaded, reference was made by the Division Bench of this Court by order dated 11-9-97 for reconsideration whether the consumer is required to pay minimum tariff of 40% of contract load irrespective of the fact that 40% contract load energy has been supplied to the consumer or not.

( 4 ) IN order to appreciate the controversy involved, it will be relevant to mention various provisions of the Indian Electricity Act, 1910, Electricity (Supply) Act, 1948, Regulations and terms of the agreement framed thereunder. Section 22-B of the Indian Electricity Act, 1910 (for short the Act of 1910) lays down power to control the distribution and consumption of energy. Section 22-B of the Act of 1910 reads as under :"sec. 22-B - Power to Control the distribution and consumption of energy -- (1) If the State Government is of opinion that it is necessary or expedient so to do, for maintaining the supply and securing the equitable distribution of energy, it may by order provide for regulating the supply, distribution, consumption or use thereof. (2) Without prejudice to the generality of the powers conferred by sub-section (1) an order made thereunder may direct the licensee not to comply, except with the permission of the State Government, with - (i) the provisions of any contract, agreement or requisition whether made before or after the commencement of the Indian Electricity (Amendment) Act, 1959 (32 of 1959), for the supply of energy to any person, or (ii) any requisition for the resumption of supply of energy to a consumer after a period of six months, from the date of its discontinuance, or (iii) any requisition for the resumption of supply of energy made with