Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Prashant Kumar,J.

(Delivered by Prashant Kumar, J.)

1. Heard Sri Ankush Tandon, learned counsel for the petitioner and Sri M.C. Chaturvedi, learned Senior Advocate assisted by Sri Alok Mishra, learned counsel for respondent nos.3 and 4.

2. The petitioner is public sector undertaking, working under the aegis of Ministry of Petroleum and Natural Gas, Government of India.

The preliminary business of the petitioner is to refine crude oil, market petroleum and petroleum products. To refine the crude oil, the petitioner has set up a refinery in Mathura. Though the petitioner had a Captive Power Plant, but it was not able to generate required amount of electrical energy, so the petitioner entered into an agreement on 30.11.1999 (hereinafter referred to as the ‘Principal Agreement’) with U.P. Power Corporation Limited (hereinafter referred to as ‘UPPCL’), to provide a facility which is commonly known as “Parallel Operating System”. The relevant clauses of the ‘Principal Agreement’ are reproduced hereunder:-

“Clause 5 It has been agreed by the consumer that during the continuance of this agreement in addition to the minimum consumption guarantee provided in the rate schedule Clause 5(b) at annexure-2, he shall pay to the supplier every month a charge at the rate of 10% (ten per cent) of the aforesaid minimum consumption per KVA for 44118 (corresponding to 37500 KW) which is subject to revision from time to time. At the current rate the ten per cent of MCG works out to ₹50/- per KVA per month & the amount so chargeable works out to ₹22,05,900/- month.

Provided that if in any revision, the minimum consumption guarantee is revised downwards, the consumer shall nevertheless, be liable to pay the charges under this clause at the rates as were charged and paid by consumer before the revision.

Provided always that in the event of non-payment or delayed payment of aforesaid charge by the due date specified in the bill, the consumer shall be liable to pay ‘Additional Charge’ as provided in rate schedule Clause 8(b) at Annex-2, without prejudice tot he right of the supplier to discontinue the parallel Operating.

Clause 19 This agreement shall subject herein before provided be and remain in force for one year from the date of commencement of supply (hereinafter called the initial period of supply) and thereafter from year to year basis on the terms and conditions herein contained.

Provided that either party shall be at liberty to determine this agreement at any time after the expiration of the initial period of supply on giving one month’s notice in writing of such intention, and on the expiration of such notice, this agreement shall absolutely cease and determine, but without prejudice to the rights and remedies if any, of either party, which may have accrued or arisen hereunder in the meantime.

Provided further that if the consumer ceases taking supply of electrical energy due to any reason, he shall be liable to pay to the Supplier necessary charges as per provision made in the Regulation framed by the Supplier under Section 49 & 79 of the Electricity (Supply) Act, 1948.”

3. The “Parallel Operating System” is an additional facility where one electrical system operates with the connectivity to another system in similar operating condition i.e. synchronized system having same voltage, frequency and phase difference. In a simplified form, it can be said that in case if there is any variation in voltage and frequency then the grid stabilizes the variation of voltage.

4. As per the ‘Principal Agreement’, the petitioner started paying for the “Parallel Operating System”. Subsequently, the petitioner managed to augment its own Captive Power Plant and realized that they do not have any further requirements of the “Parallel Operating System”.

5. On 3.8.2001, petitioner sent a letter to UPPCL requesting for amendment to the ‘Principal Agreement’ as there was