Bihar State Electricity Board Vs. M/S Bijay Mining Company Ltd. &
Ors  INSC 806 (15 July 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (7) 208 1996 SCALE (5)686
O R D
learned counsel on both sides.
appeal by special leave arises against the order of the Division Bench of the
High Court of Patna, dated September 21, 1993 made in CWJA No.2811/93. Admittedly the respondent had entered into an
agreement with the appellant Board for supply of electricity pursuant to which
the respondent was required to pay the minimum guarantee charges. When a bill
was issued, it would appear that the respondent had objected to the minimum
guarantee bill on the ground that there was erratic supply of electricity and
the Board unable to supply the required quantity of the electricity.
Consequently the respondent to not liable to pay the minimum guarantee under
the contract the High Court allowed the writ petition finding that on an
earlier occasion the High Court in CWJC No.3642/92 had disposed of writ
petitions on February 25, 1923 directing the Board to raise fresh bill giving
proportionate reduction in the annual minimum guarantee charges, but the same
not being complied with it is not open to the Board to give the bill as
impugned in the writ petition.
seen that clause 13 of the agreement provides a under:
- if at any time the consumer is prevented from receiving or using the
electrical energy to be supplied under this agreement either in whole, or in
part due to strike, riots, fire, floods, explosions, act of God or any other
case reasonably beyond control or if the Board is prevented from supplying or
unable to supply such electrical energy owing to any or all of the cause
mentioned above than the demand charge and guaranteed, energy charge set out in
the Schedule shall be reduced in proportion to the ability of the consumer to
take or the Board to supply such power and the decision of the Chief Engineer,
Bihar State Electricity Board, in this respect shall be final.
The term Chief Engineer includes additional Chief Engineer for the area
concerned." A reading thereof would clearly indicate that the Board is
enjoined to give proportionate reduction provided any one of the conditions
enumerated therein had occasioned.
an application in that behalf shall be required to be filed to the Chief
Engineer of the Board who was required to investigate into the matter and then
his decision shall be final. It would appear that a representation was made,
but it is not clear whether it was to the Chief Engineer, the competent
authority in terms of the agreement or any other officer. Under these
circumstances, unless an application is made to the competent authority to
investigate into the matter, the board in terms of clause 13 of the contract is
necessarily obliged to demand and the consumer is to comply with the payment of
minimum guarantee amount in terms of the agreement subject to the decision by
the Chief Engineer.
we set aside the order of the High Court giving liberty to the respondents to
make an application afresh within a period of one month from the date of the
receipt of this order to the Chief Engineer, Electricity Board. The Chief
Engineer would enquire into and give the decision in that behalf. In the event,
the Chief Engineer finds that the Board was responsible, then necessarily, in
terms of clause the proportionate reduction is required to be given to the
appeal is accordingly ordered. No costs.