1. With a view to run its Cold Storage, the petitioner applied to Benares Electric Light & Power Company Limited for supply of electrical energy under the provisions of the Benares City and Cantonment Electric License, 1967-68. The power connection was provided to the petitioner from 132 KV Sub-station, Contonment, Varanasi. An agreement to this effect was executed between the petitioner and the Benares Electric Light & Power Company Limited in the year 1925. Taking recourse of the entire distribution work of the electrical energy of Benares Electric Light & Power Company Limited stands vested in the U.P. State Electricity Board (in short 'UPSEB' and as a consequence thereof the petitioner became consumer of the said Board. An agreement was executed in this behalf which was renewed from time to time. In the meantime, the contracted load of the petitioner had gone various variations from time to time, which now stands as 128 KVA for which an agreement was executed between the petitioner and the Board on 1.6.1985.
2. The State Government issued Uttar Pradesh Electricity Reforms Transfer Scheme, 2000 which resulted in winding up of UPSEB and transferred all its assets and liabilities etc. to U.P. Power Corporation Limited and two other companies. The distribution and transmission work of the UPSEB was also transferred to U.P. Power Corporation Limited and the generation of two other companies. Thereafter the Central Legislature intervene for major reformation in Electrical sector and in order to simplify legal provisions available in different Acts enacted a comprehensive legislation namely, Electricity Act, 2003 which came into force on 10.6.2003.
3. In order to ensure running of its Cold Storage unit, petitioner required 128 KVA power load and accordingly the U.P.State Electricity Board installed a transformer of 250 KVS capacity, which was sufficient to meet out the petitioner's requirement and power supply was rearranged and transferred to 33 KV feeder emanating from 132 KV Sub-station, Gajokhar, Varanasi.
4. The grievance of the petitioner in the writ petition is as follows:-
a) Minimum Guarantee charges was raised by respondent no. 2 for the bills between the year 2003-2004 when the power supply was not given to the petitioner on account of non-availability of transformer.
b) Minimum Guarantee charges bill raised for the supply which was disconnected on account of burnt/damaged transformer.
c) Supply provided to the petitioner from the Rural Feeder but tariff has been billed at the rate of Urban Feeder.
d) On account of disputed bill raised by the respondents, no surcharge could be recovered from the petitioner.
e) On account of expenses incurred by the petitioner in getting the transformer repaired, it was the duty of the respondents to adjust the repairing charges of the transformer in the bill raised by them.
5. An appeal was preferred against the order of the Executive Engineer, which was partly allowed by the appellate authority. The demand of minimum guarantee consumption regarding the period from 2003 to 2004 was found to be not recoverable from the petitioner as there was no power supply made by the respondents during the aforesaid period. However, other contentions of the petitioner have been rejected by the appellate authority. In these circumstances, the petitioner has filed the present writ petition.
6. Following issues arise in this petition:-
"i) Whether minimum guarantee charges can be recovered from the consumer, when there is no minimum guarantee supply?
2) Whether minimum guarantee charges can be recovered if the disability has occurred on account of failure on the part of licensee to supply power?
3) Whether on account of failure to repair the transformer by the respondents, the expenses incurred by the petitioner to get the transformer repaired at his own cost could be adjusted towards the bills raised against the petitioner?
4) Whether consumer can be charged at the Urban rate scheduled once the supply of electricity was made from the Rural Feeder, for which there is a different scheduled?"
7. There is no dispute that the Electricity Act provides for recovering minimum consumption charges from the consumer irrespective of the fact that the energy has not been consumed by the petitioner. Any stipulation for payment of minimum guaranteed charges is unexceptionable in a contract of this nature wherein the Board is entrusted with the duty of generation, transmission and supply of electrical energy, has in order to fulfil its obligation laid down lines and installed the required equipment and gadgets in order to ensure that supply reaches to the consumer. The cost of transmission and supply of power to each of the consumer at his place of business and residence is incurred by the Board. In order to meet out this part of expenditure the principle of minimum guaranteed charges has been enabled in the statute. The minimum guaranteed charges so fixed are to meet out costs of generation, transmission and supply of electrical energy. Consequently, if either in the general conditions and terms of supply or the contract or the tarrif rates, as the case may be, there is any stipulation in clear and unmistakable terms that the liability relating to the payment of minimum guaranteed charge could or will be enforced irrespective of the actual consumption rate of the consumer or even dehors the capacity or otherwise of the Board to supply even the minimum of the contract demanded energy, there could be valid objection in law for any such commitment. The only exception to this rule is whether the consumer is committed to pay fixed charges as minimum guarantee charges and there is no corresponding obligation to licensee to supply minimum standard of supply. However, if there is no such condition, as stated above, the consumer can not be fasten the liability to pay minimum guarantee charge, without ensuring the minimum guarantee supply to be maintained by the licensor. What is minimum guaranteed supply is dependant upon terms of the agreement. If the consumer has not committed to pay fixed amount as minimum guarantee charges, in that eventuality, the licensee is obliged to ensure minimum guaranteed supply. If the consumer has committed to pay guaranteed sum, there is no obligation on the part of the Board to ensure minimum guaranteed supply. If there is an agreement of guaranteed supply by the Board, which is not fulfilled by the Board, then the consumer is exhorted from paying minimum guaranteed charges. This principle has been applied by the Hon'ble Apex in judgment in the case of Raymond Limited and another versus M.P.Electricity Board and others (2001) 1 SCC 534.
8. In the present case, it does not reveal from the record, as to what is minimum guarantee sum payable by the consumer and what is minimum supply which is to be ensured by the supplier company. The Act only provides for charging minimum guarantee charges on the basis of tariff laid down in the schedule. No fixed amount has been committed by the consumer as minimum guaranteed charges. Minimum guarantee charges will always be subject to variation on periodical change in tariff. It clearly contemplates that no fixed amount as minimum guarantee charges is committed by the consumer. If this is the position, the consumer is duty bound to pay the minimum guarantee charges ,with an assurance from the licensee that minimum guaranteed supply will be ensured. The principle of charging minimum guaranteed is based upon the principle that obligation to pay the charges has to be related to minimum standard of supply maintained by the licensee. It is in this context the appellate forum admitted the claim of the petitioner for the period 2003-04 that there was no supply of electricity, as such, no bill could be raised from consumer to pay the minimum charges. The essence of the principle is that in order to enforce the condition of recovering minimum charges, minimum standard of supply has to be ensured. The State can not discharge itself from its liability in not giving minimum supply merely on the principle that such charges are leviable to compensate the licensee the cost of infrastructure. Merely because there is no stipulation of enjoining the licensee to ensure minimum standard of supply for the reason attributable to the licensee, the consumer can be burdened with the minimum guaranteed charges.
9. Conclusion is that in absence of any fixed amount being committed by the consumer, the licensee is required to ensure minimum guarantee supply in order to bind the consumer with minimum guarantee charges.
10. Minimum guarantee charges are sought to be recovered from the petitioner for the period 20.11.2004 to 8.5.2005 and 7.1.2006 to 28.5.2006. In respect of the demand raised from 25.11.2003 to February 2004, the claim has been allowed by the appellate authority and a direction has been issued to refund the same to the petitioner. The period 20.11.2004 to 8.5.2005 is the period when proceedings under section 126 of the Act was initiated against him for having unauthorisedly using electricity. The assessment order in this behalf has already been issued. For this period the supply to the consumer was disconnected and minimum guarantee charges were sought to be recovered from him. Petitioner has questioned this order in a separate writ petition being Civil Misc. Writ Petition No. 31333 of 2006, as such, I do not need to address this issue. Only period which is subject matter of controversy is the period from 7.1.2006 to 28.5.2006. The electricity remained disconnected to the petitioner on account of damage caused to the transformer. The transformer was repaired by the department and installed on 28.5.2006. There was no supply effected to the premises of the petitioner on account of burning of the transformer. For the period the transformer was under repair, minimum guarantee charges are sought to be recovered from the petitioner.
11. The case of the petitioner is that demand of minimum guarantee charges for the period 7.1.2006 to 28.5.2006 was on account of burning down of the transformer, no supply was effected, as such, no recovery in this behalf could be made.
12. The cause for disconnection was not on account of consumer having breached any of the conditions of the Electricity Code but on account of failure on the part of the licensee to restore the transformer. Since the petitioner had not committed to pay a fixed amount as minimum guarantee charges, as such, any amount sought to be recovered on this ground was always dependant on minimum standard of supply by the respondents.
13. The claim of the respondents is that demand of minimum guarantee charges for the period 7.1.2006 to 28.5.2006 for consumption month 2005 was paid through cheque, which was subsequently dishonoured and there is no evidence on record to show that the petitioner has ever made payment of the said amount. Subsequently, action against the petitioner under Clause 4.37 of the Code was initiated. In the nutshell, it is stated that on account of non-payment of bills, temporary disconnection was effected for which the petitioner is under law to pay the minimum guarantee charges for the said period. In order to appreciate the controversy raised here in, it is important to state that certain facts in this case are admitted : -
"a) That power supply remained disconnected from 7.1.2006 to 28.5.2006 on account of burning of the transformer;
b) That bills for consumption for the month of November, 2005 was paid through cheque by the petitioner, which was dishonoured;"
14. The stand of the parties is not at variance that the power connection was disconnected for the said period. The stand of respondent that even through it remained disconnected on account of burning of the transformer, the minimum guarantee charges ought to be recovered on account of his failure to make payment for the month of November 2005. The question which arise for consideration is whether the respondents could recover the minimum guarantee charges by taking the pretext of petitioner having failed to make payment for the month of November 2005 while the fact remains that the electricity supply remained disconnected on account of burning of the transformer. It be seen that in paragraph 48 of the writ petition the petitioner has admitted that cheque amounting to Rs. 98,207/- Rs. 1,13,306/- and Rs. 93,169/- were not deposited by him. However, the amount of Rs. 98,207/- and Rs. 1,13,306/- have been paid vide receipt nos. 40/043287 and 39/043287 on 31.8.2005 and another amount of Rs. 93,169/- was paid vide receipt nos. 05/043973 and 06/0028429 on 13.3.2006 and 26.6.2006.
15. While looking to the reply submitted by the respondents to paragraph 48 of the writ petition, it is stated that the cheque issued by the petitioner were dishonoured. There is no specific denial that the amount has not been paid by cash, as stated by the petitioner in the writ petition, the same is deemed to have been admitted. The very foundation of the disconnection goes once it is stated by the petitioner that he has deposited this amount in cash which fact has not been denied by the respondents. The cause for disconnection is referable to clause 4.37 of Code of 2005. In order to appreciate this controversy, it is necessary to examine the grounds for ordering for temporary disconnection of supply.
16. Clause 4.37 of the Code contemplates that the supply shall be disconnected in case the electricity bills on account of failure on the part of the consumer is not paid within 15 days from the date of issuance of the notice. Clause 4.37 further contemplates that if any connection is disconnected, the licensee will bill the consumer minimum guarantee charges if the cause of disconnection is on account of failure on the part of the consumer for not adhering to the provisions of the Code. For reference Clause 4.37 is quoted below:-
"(a) The Licensee shall, after a connection is temporarily disconnected, bill a consumer on minimum charges, and also issue a notice, as per format given in Annexure 4.9, to the consumer, to remove the cause of disconnection failing which, the supply shall be disconnected permanently after six months. Such connections shall be treated as dormant connections (awaiting final account), and the billing shall be stopped after carrying out inspections and duly informing the consumer, and final account of the consumer shall be prepared.
(b) Where licensee discovers that connection has been re-connected unauthorisedly after temporary disconnection, licensee may initiate action as per provisions of Section 138 of the Act."
17. According to the respondents, cause of disconnection is non-payment of November, 2005. The case of the petitioner is that the electricity supply remained disconnected on account of burning of the transformer. As already stated here in supra, the bills raised against the petitioner have been deposited by cash which fact has not been denied by the respondents in their counter-affidavit. The cause of disconnection is not referable to the consumer but on account of failure on the part of the respondents to make the supply. If supply to the unit is effected/disconnected, the burden of charge of minimum guarantee charge can not be shifted on the consumer. The respondents took approximately 5 months to restore the transformer. For the said period, the electricity remained disrupted to the petitioner's unit.
18. As stated above, under clause 7.07 of the Code the supply has to be restored to the consumer within 24 hours. In the event, the transformer being damaged the same is to be replaced within a period of 15 days. The respondents have failed on both counts in this behalf. Invoking the provisions of clause 4.37 of the Code in the present case is uncalled for as temporary disconnection is on account of cause referable to the licensee who has failed to repair the same.
19. Petitioners claim to have incurred expenses to get the transformer repaired at their own costs which is required to be adjusted against the outstanding bills raised by the licensee. Under the Electricity Act and Electric
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ity Code, 2005, it is they duty of the licensee to get the transformer repaired within a period of 15 days. It does not contemplates that the consumer can get the transformer repaired at his own costs and seek its adjustment in the bills raised against him. In the present case, without obtaining orders from the competent authority, petitioners on his own got the transformer repaired which was undoubtedly duty of the licensee. There is no authorisation to get the transformer repaired by the petitioner by competent authority. Therefore, the costs incurred by the petitioners can not be set off against the bill. The petitioners have a remedy to file a civil suit for recovery of the said amount. 20. The petitioner has been charged at the rate schedule of urban feeder while the supply was made from rural feeder. Initially the connection was given to the petitioner from the Urban feeder, subsequently it was shifted to rural feeder, as a result of which, the supply to the petitioner's unit was drastically effected. However, this question has been conceded by the learned counsel for the respondent that the petitioner could not be charged at the rate schedule provided for the supply made from urban feeder. It is admitted that supply to the petitioner was made from the rural feeder. In view of the stand taken by the learned counsel for the respondent, any bill raised in excess of the rate fixed for rural area is required to be refunded to the petitioner by the respondents. The respondents are directed to charge bill payable at the rate schedule for rural area. 21. I, therefore, hold that the minimum guarantee charges can not be recovered from the petitioner. 22. In view of the aforesaid discussions, the writ petition is disposed of finally in terms of the aforementioned directions.