- (1.) In this writ petition, the petitioner has sought a declaration to the effect that he is entitled to the benefit of waiver of minimum charges in respect of period 8th November 1990 to 14th December 1990. It has prayed for striking down the demand of minimum charges and also for striking down part of notifications dated, 7th March, 1989 and July 1989, whereunder the benefit of waiver of minimum charges has been restricted to the units whose supply is lying disconnected. It has also prayed that the petitioner be given the benefit of waiver of minimum charges in terms of clause 17(b) of the agreement because, it is a sick industrial company.
(2.) The petitioner is a Company registered under the Companies Act, 1956, and is engaged in the manufacture of M.S. Ingots, in its factory at Alwar. It has entered into an agreement with the Rajasthan Electricity Board (for short 'the Board') for supply of electrical energy. According to the petitioner it has incurred huge losses and upto 31.3.90 it had suffered loss to the tune of Rs. 94 lacs. The reasons for the losses, according to the petitioner, are strike, riots, insurrection etc. The petitioner made a reference to the Board for Industrial and Financial Reconstruction. In its meeting held on 4.9.90, the Board took certain decisions and certain guidelines were given for preparation of the rehabilitation scheme. The rehabilitation scheme was submitted before the Board for Industrial and Financial Reconstruction, the same has been considered by the Board in its meeting held on 17.7.91. According to the petitioner, the representative of the Government of Rajasthan has agreed for waiver of the minimum charges during the periods of non-working. The petitioner's case is that on account of various reasons, it was not able to consume the electrical energy for the period between 8.11.90 to 14.12.90 and, during this period, no production was done in the factory. Despite the non-consumption of energy, the respondent Board has served a demand for minimum charges amounting to Rs. 13,45,500/-. The petitioners submitted a representation dated, 1.1.91 before the Chairman of the respondent Board for waiver of minimum charges in view of its industrial sickness. Another representation dated, 3.1.91 has been submitted to the Dy. Secretary (Energy) to the Government of Rajasthan, with the request that the Government may advise to respondent Board to waive the minimum charges, but, no action has been taken in this regard. The Government of Rajasthan issued directions under section-78A vide its notification dated, 4/7th March, 1989 in respect of sick industries. The respondent Board issued exactly identical notification on the basis of the directives issued by the Government. Subsequently, another notification dated, July 24, 1990, has been issued by the respondent Board. The Government of Rajasthan has also announced its industrial policy 1990 and according to this industrial policy the Board is not entitled to raise demand of minimum charges against the petitioner. The case of the petitioner is that notwithstanding the directives issued by the Government under section 78-A and the industrial policy declared by the Government in the year 1990, which also amounts to the directive issued under section - 78A of Electricity (Supply) Act, 1948, the respondent is insisting on payment of minimum charges by the petitioner for the period between 8.11.90 to 14.12.90. The petitioner has placed reliance on the provisions contained in Sick Industrial Companies (Special Provisions) Act, 1985 and has submitted that in the light of the provisions contained in sections 19, 22 and 32 of 1985 Act, the respondent Board has no jurisdiction to demand minimum charges from the petitioner.
(3.) In their reply, respondents No. 2 and 3 have stated that the petitioner is bound to pay minimum charges irrespective of the fact that the electricity has or has not been actually consumed. Respondents have denied the statement of the petitioner that it was not able to consume any electricity for manufacturing purposes. It has been asserted that electricity was in fact, consumed for manufacturing purposes. It has then been stated that the State Government has power to issue directions on the question of policy and final decision in respect such direction is required to be taken by the Central Electricity Authority as per the provisions of Section-78A of the Electricity (Supply) Act, 1948. Regarding industrial policy of the State Government it has been asserted that under that policy the State Government could not have given directions in respect of minimum charges. Such policy cannot be considered as directives given by the State Government under section 78-A of 1948 Act. It has then been stated that the supply of energy to the petitioner's unit were never dis-connected. Regarding representation (Annex. 5), it has been stated that it was merely a formality, because, in the representation no sufficient time was given to the respondents to take a decision. The petitioner immediately rushed to the Court without waiting for the decision. It has been stated that the petitioner is under an obligation to make payment of the minimum charges.;