V.K.Gupta, J. - (1.) Proportionate reduction in the Annual Minimum Guaranteed Revenue (AMGR) as claimed by the appellant is at the centre of controversy in this appeal filed by the appellant under clause 15 of the Letters Patent against the judgment dated 3.3.1998 passed by the learned Single Judge of this court. Actually this appears to be a third round of litigation in succession, raher a third attempt by the appellant in its efforts to establish that it is entitled to claim the proportionate reduction in the payment of AMGR and the reasons for such claim, as advanced by the appellant is the eratic functioning of the machinery installed in its factory. The appellant had obtained the connection of electricity and the Schedule of AMGR as granted by the respondent in the agreement duly executed for this purpose with the Electricity Board was as under : 1st Year 56 KVA 2nd Year 100 KVA 3rd Year 100 KVA 4th Year 100 KVA 5th Year 100 KVA.
(2.) The appellant's contention was that since the machinery was not functioning properly, it could not consume electricity to the extent of the installed capacity and therefore, it was not liable to pay AMGR to the full extent mentioned in the aforesaid schedule and on this basis thus claimed proportionate reduction as per clause 16(3) of the agreement entered into between the appellant and the Electricity Board. Since Clause 16(3) is indeed of paramount importance for considering the basic question in this appeal, we reproduce the same which reads thus : "If at any time the consumer(s) is prevented from receiving or using the electrical energy to be supplied under this agreement either in whole or in part owing to any strike, riots, insurrections, command of a civil or military authority, fire, explosions, act of God or any other causes beyond his/its/their control or if the Board is prevented from supplying or is unable to supply such electrical energy owing to all or any of the causes mentioned, then at the request of the consumer(s) the minimum charge payable by the consumer(s) may be reduced in proportion to the ability of the consumer(s) to take or the Board to supply such power, provided the consumer(s) notifies/notify the Board in writing within fifteen days of occurrence of any event as noted above with necessary detail to prove that the occurrence is preventing/has prevented the consumer(s) from receiving or using the full amount of contractual demand. The consumer(s) shall also keep the Board informed once in every fortnight of further development regarding the event. NO remission in the agreed minimum charge as mentioned in Schedule I hereof, will be considered if no such notice is received by the Board. Subject as aforesaid and inspite of any other event or circumstance the consumer(s) shall be liable to pay the minimum charge every year as mentioned in Schedule 1 hereof without any abatement or diminution of the amount whatever."
(3.) Having failed initially to obtain the desired result from the learned single Judge in the earlier writ application filed by the appellant, an appeal was preferred by the appellant before the Division Bench of this court which vide judgment dated 4.8.97 while disposing of the appeal observed as under :- "We are not expressing any view as to the effect of construction of Clause 16(3) of the Agreement in question. We are allowing the appeal, after dispensing with all formalities required to be observed in the appeal under the Rules of this court, like service of notice of appeal on the respondents as the learned advocate for the respondents has waived service of notice of appeal on behalf of all the respondents and filing of paperbooks and after taking into consideration the question of law and interpretation of all contract only to the extent that the respondents may consider the eligibility of the appellants petitioners to any relief in terms of Clause 16(3) of the agreement in view of existence of circumstances within the meaning of "any other causes beyond his/its/their control". The consideration, as directed, would be made only upon the petitioners paying to the West Bengal State Electricity Board a sum of rupees two lakhs on ad-hoc basis within four weeks from today".;