Raju, J. - (1.) The above batch of appeals arise out of a common judgment rendered in a batch of writ petitions by a Full Bench of the Madhya Pradesh High Court, since, reported in AIR 1999 Madh Pra 143 and also the consequential separate orders passed subsequently by the Division Bench dismissing the writ petitions. The writ petitioner-Industries filed appeal against that portion of the opinion of the Full Bench confining the declaration of law made for prospective application only and the dismissal of the writ petitions, whereas, the Electricity Board had filed appeals against that portion of the opinion of the Full Bench declaring the position of law that whenever the contracted supply falls short of 40% of the contract load then the Board shall be entitled to charge only for the reduced energy actually supplied and not for 40% of the contract load as minimum charges and thereby overruling an earlier decision of a Division Bench of the said High Court reported in M/s. Gwalior Steels Private Ltd. vs. M. P. Electricity Board, AIR 1993 Madh Pra 118. For the purpose of appreciating the points raised, we would advert to the facts in one of these appeals, particularly those in M/s. Raymond Ltd. in C.A. Nos. 4218-4219 of 1998.
(2.) The appellant M/s. Raymond Ltd., a company registered under the Companies Act, 1956 and having its cement manufacturing division within the State of Madhya Pradesh, entered into an agreement with the Madhya Pradesh Electricity Board on 27-3-1979 renewed periodically for supply and purchase of high tension electric energy for use in the manufacture of cement. The minimum contractual demand was for 33 MW (38,822 KVA) per day and clause 19 provided for the Tariff, while clause 21 stipulated the term relating to minimum guarantee in the following terms : "21(a) The consumer shall from the date of utilisation of electrical energy, or from the date of expiry of the three month's notice mentioned in clause 2 hereof guarantee such minimum consumption as when calculated at the tariff (excluding charges due to fuel adjustment clause, meter rent and miscellaneous charges) will yield an annual revenue of Rs. 5,40,000/- (Rupees Five Lakhs Forty Thousand Only) or pay this sum as a minimum. The deficit, if any, between the guaranteed minimum charges and the actual charges shall be payable by the Consumer. (b) The minimum guarantee specified in Clause 21(a) above shall at all times be without prejudice to realisation by the Board of the minimum prescribed under the tariff referred to in Clause 19 hereof. (c) It hereby agreed further that the Board shall be entitled to fix and charge enhanced amount of annual revenue if the Board, on completion of all works for supply to the Consumer, finds it has incurred higher expenditure than the pre-estimated cost and in that case the Consumer shall pay to the Board the enhanced annual revenue so fixed by the Board without any objection and will not raise any dispute regarding the same. Clause 19 of the agreement read as follows : "The Consumer shall pay to the Board every month, charges for the electrical energy supplied to the Consumer during the preceding month, at the Board's tariff applicable to the class of service and in force from time to time. A copy of the current H.T. tariff No. 1-A of notification No. 5/GA/147-A dated 11-3-1976 as amended applicable to the Consumer is set out in the Schedule attached to this Agreement."
(3.) Under the notification issued for High Tension for 132 KV/220 KV supply, the minimum tariff prescribed for cement factories is said to be as hereunder : "The consumer will guarantee a minimum monthly consumption (KWH) equivalent to 40% load factor of the contract demand. The consumer will be required to pay the energy charges on the said minimum monthly consumption plus the demand charges on the billing demand for the month as minimum monthly payment irrespective of whether any energy is consumed or not during the month. An average power factor of 0.9 will be applied for the calculation of corresponding unit of 40% load factor on contractual demand." ;