J.S.VERMA, C.J. - (1.) This is a special appeal against the order of a learned single Judge (N.M. Kasliwal) in S.B. Civil Writ Petition No. 1024 of 1984, decided on May 14, 1986 by which the writ petition has been partly allowed to the extent a concession was made by the respondent-Rajasthan State Electricity Board (hereinafter to be referred to as 'the R.S.E.B.'), but has been dismissed for the remaining part. The only relief granted to the petitioners on the basis of the concession made by the R.S.E.B. is a direction for proportionate reduction in the minimum charges claimed by the R.S.E.B. to the extent of the power cuts during the relevant billing month; revision of the bills for payment of minimum charges on this basis; and refund if any, due to the petitioners as a result of revision of the bills. The main grievance of the petitioners in the writ petition that Cl.16(c) of the agreement dt./- Dec. 15, 1981 between petitioners and R.S.E.B., particulars of which are stated hereafter, requiring payment of minimum charges at almost three times the normal rate specified for other similar heavy consumers being invalid cannot be enforced still survives, since the petition has been dismissed to that extent. This appeal re-agitates the same point in its various facets.
(2.) Shortly, stated the main point for decision in this appeal, subject to the preliminary objections raised on behalf of the R.S.E.B. which are mentioned later, is : whether, Cl.16(c) of the supplementary agreement dt./- Dec. 15, 1981 which requires the petitioners to pay minimum charges at the rate of 372.30 units per KVA per month of the contract demand of 25 MW of electricity supplied to the petitioner's Fertilizer plant at Kota, instead of the normal rate of 130 units per KVA applied to all other such heavy consumers, is invalid and, therefore, not enforceable against the petitioners ? The further question is whether this relief can be granted to the petitioners in a writ petition under Art.226 of the Constitution. This other question has to be answered with reference to the preliminary objections raised on behalf of the R.S.E.B. bearing in mind the fact that the learned single Judge granted partial relief to the petitioners in the writ petition and that too on the basis of a concession made on behalf of the R.S.E.B. for reduction in the amount of minimum charges proportionate to the power cuts imposed by the R.S.E.B. during the relevant billing month. Accordingly, at least to this extent, availability of the writ jurisdiction was not disputed and grant of that relief by the learned single Judge has also not been challenged by the R.S.E.B. There is some controversy about the exact amount by which the minimum charges claimed by the R.S.E.B. under the aforesaid Cl.16(c) have been reduced as a result of this relief granted in the writ petition against which no grievance has been made by the R.S.E.B. but it is common ground that the relief is substantial amounting to a large sum of money and the same is not material for deciding the points involved in this appeal. This fact is mentioned merely to emphasise that the preliminary objections to maintainability of the writ petition raised at the hearing of this appeal are common and apply equally even to the relief already granted by the learned single Judge on the concession made on behalf of the R.S.E.B. Therefore, the question is whether the remaining grievance of the petitioners should not be considered and decided on merits in spite of this position.
(3.) The material facts which are few may now be stated. The petitioner D.C.M. Limited owns a number of industrial units in Kota in the State of Rajasthan of which M/s. Shriram Fertilizers and Chemicals is one. For this Fertilizer plant the petitioner obtained a connection for supply of electricity which was given by the R.S.E.B. vide agreement dt./- Feb. 8, 1973 under which the contract demand was 6 MW and the minimum charges payable were at the rate of 130 units per KVA. Thereafter the contract demand to the petitioner's Fertilizer plant was increased to 15 MW vide supplementary agreement dt./- April 18, 1974 and the minimum charges continued to remain at the rate of 130 units per KVA. The petitioner made an application dt./- Sept. 21, 1977 for increase of the contract demand to the Fertilizer plant to 20 MW. There is some controversy between the parties whether the petitioner voluntarily agreed thereafter to increase the contract demand to 25 MW instead of 20 MW, According to the petitioner the consent for increase of contract demand to 25 MW instead of 20 MW was given by petitioner vide letter dt./- Aug. 1, 1978 under compulsion, since the R.S.E.B. insisted on increase to that extent, while the R.S.E.B. avers that this increase to 25 MW was at the petitioner's instance. However, the merits of this controversy need not be gone into, since that is not material for decision of the points involved in this appeal. Factually the contract demand was increased to 25 MW for which the peitioner gave consent vide letter dt./- Aug. 1, 1978 resulting in the execution of the supplementary agreement dt./- Dec. 15, 1981 amending the initial agreement dt./- Feb. 8, 1973 to this extent. The significant addition in this supplementary agreement dt./- Dec. 15, 1981 was the insertion of Cl.16(c) providing for payment of minimum charges by the petitioner at the rate of 372.30 units per KVA instead of the earlier minimum charges at the rate of 130 units per KVA. This increase in the minimum charges from approximately 20% to 60% of the total possible consumption or in other words to three times of the minimum charges specified earlier has been achieved by providing in the said Cl.16(c) that the consumer shall draw/utilise/consume electric energy corresponding to the aforesaid contract demand of 25 MW at a minimum load factor of 60% each month which means that the minimum energy consumption for which the petitioner would be billed each month is 1,09,50,000 Kwh. Clause 17(a) in the agreement provided for proportionate reduction in the minimum charges during power cuts. It may be mentioned that no instance has been brought to our notice wherein the minimum charges for any such heavy industrial unit is prescribed in excess of 130 units per KVA which was also the minimum charges payable by the petitioner prior to the supplementary agreement dt./- Dec. 15, 181 introducing the impugned Cl.16(c). This supplementary agreement was brought into force by releasing the additional supply thereunder on April 26, 1983. The impugned Cl.16(c) along with Cl.17(a) therein are as under :- "16(c) : The consumer shall draw/utilise/consume electric energy corresponding to the aforesaid contract demand of 25 MW at a minimum load factor of 60% each month. The consumer shall be billed on actual electric power/energy consumed/utilised but in case during any month the electric energy consumption is less than 1,09,50,000 Kwh per month, the consumer shall pay to the Board an amount as worked out in accordance with the cls. 16(a) and 16(b) for the minimum energy consumption of 1,09,50,000 Kwh. Moreover, if such charges are less than the minimum charges as may be prescribed from time to time, then the consumer shall be liable to pay the minimum charges so worked out on the basis of the tariff in force from time to time, provided that for period up to one month in a financial year when the plant will be closed for preventive maintenance, this clause for the purpose of billing shall not apply. The billing in such period will be on the basis of the minimum charges prescribed in the normal tariff proportionately for that period." "17(a) : If at any time the supplier is prevented from supplying electrical energy under this agreement in whole owing to all or any of the causes mentioned in clause ten of this agreement then the minimum charges payable by the consumer shall be reduced proportionately." Obviously, it was because of the aforesaid Cl.17(a) that the R.S.E.B. conceded in the writ petition to give proportionate reduction in the minimum charges to the extent of power cuts which it had not given earlier in the bills presented to the petitioner and it is on this basis that partial relief in the writ petition as aforesaid has been granted.;