Hari Swaroop, U.C. Srivastava, JJ. - (1.) THESE petitions relate to the demand of minimum guarantee charges from the Petitioners under the Indian Electricity Act, 1910. The minimum guarantee charges are being demanded under Section 22 of the Indian Electricity Act, 1910. On 12 -10 -1974 the U.P. State Electricity Board issued a notification fixing the minimum guarantee charges in exercise of power under the proviso to Section 22 of the Indian Electricity Act, 1910. It is this notification which has been challenged by the Petitioners in these writ petitions.
(2.) THE first contention raised by the Learned Counsel was that under Section 22 of the Act, it was not permissible for the Electricity Board to charge the minimum guarantee as that Section authorised only the 'licensee' to charge the amount. The contention is that Board, not being the licensee, cannot take advantage of Section 22 of the Act. Reliance in this connection has been placed on the wordings of Section 22 of the Act which read as follows: Where energy is supplied by a licensee, every person within the area of supply shall, except in so far as is otherwise provided by the terms and conditions of the license, be entitled, on application, to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a corresponding supply; Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of energy for any premises having a separate supply unless he has agreed with the licensee to pay to him such minimum annual sum as will give him a reasonable return on the capital expenditure, and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable to be determined in case of difference or dispute by arbitration. Section 26 of the Electricity Supply Act, 1948, gives to the Board the same powers and obligations as a licensee has under the Indian Electricity Act, 1910. It runs as under: "Subject to the provisions of this Act, the Board shall, in respect of the whole State, have all the powers and obligations of a licensee under the Indian Electricity Act, 1910, and this Act shall be deemed to be the license of the Board for the purposes of that Act; Provided that nothing in Sections 3 - 11, sub Sections (2) and (3) of Section 21 and Section 22. Sub -section (2) of Section 22A and Sections 23 and 27 of that Act or in (Clause II to V, Clause VII and Clauses IX to XII) of the Schedule to that Act relating to the duties and obligations of a licensee shall apply to the Board; Provided further that the provisions of Clause VI of the Schedule to that Act shall apply to the Board in respect of that area where distribution mains have been laid by the Board and the supply of energy through any of them has commenced. Learned Counsel for the Petitioners placed reliance on the first proviso to Section 26 and urged that the Board has not been given the power to charge minimum electricity charge under Section 22 of the Indian Electricity Act, 1910. We are unable to see any merit in this contention. The main part of Section 26 speaks of powers and obligations while the first proviso speaks only of duties and obligations. Section 22 of Indian Electricity Act, 1910, deals with the obligations of the licensee to supply energy to a consumer and the proviso thereto deals with the power of the licensee to charge minimum guarantee amount. It placed an obligation on the consumer to pay the minimum charges. The first proviso to Section 26 of the Electricity Supply Act, 1948, thus does not prohibit the Electricity Board from exercising the power of the licensee under the proviso to Section 22 of the Indian Electricity Act, 1910. We, therefore, overrule the contention of the Learned Counsel for the Petitioners that the State Electricity Board had no power to fix the minimum guarantee charges payable under the proviso to Section 22 of the Indian Electricity Act, 1910.
(3.) LEARNED Counsel for the Petitioners then contended that Section 22 of the Act deals with the agreement and it does not permit unilateral act of the State Electricity Board to fix the minimum charges payable under the proviso. According to the Learned Counsel it deals with bilateral action and not unilateral action of the Board. Although the words speak of the agreement the Section does not rule out the coming into effect of an agreement by implication. According to the proviso to Section 22 no person is entitled to demand or to continue to receive electricity without entering into an agreement regarding minimum charges. Once the Board or licensee makes out a Schedule and announces it and offers to supply energy with that Schedule of minimum charges and the consumer takes the energy, a completed contract will be deemed to have come into effect within the meaning of the proviso to Section 22 of the Act, An offer in such a case is made by the licensee (Board) and accepted by the consumer by his act of receiving the electric energy for consumption. We, therefore, do not find any merit in the contention that without a formal agreement having been executed between the parties the minimum guarantee charges are not payable by the consumer when the law prohibits every person from continuing to receive electric energy without entering into such an agreement. Section 49 of the Electricity Supply Act, 1948 will also lead to the same conclusion.;