VIKRAMADTIYA PRASAD,J. - (1.) The petitioner has filed this writ petition for a direction for setting aside the order dated 3.2.2000, Annexure -2, passed by the respondent General Manager, whereby and whereunder in exercise of the power under clause 13 of the H.T. Agreement who disposed of the claims of the petitioner for the year 1992 -93 to 1997 -98 by a composite order rejecting the total claim of the petitioner for remission in Maximum Demand Charges (MD for short) in all those years and curtailing the remission to which the petitioner was entitled in Annual Maximum Guarantee Charges (AMG for short) for the same years.
(2.) THE petitioner is a consumer having a contract demand of 200 KVA. The petitioner claimed proportionate remission in A.M.G. charges for the duration of non supply of power and also for the inability of the petitioner to consume power for twenty minutes after each resumption of supply due to machine downtime. The petitioner had filed its claim for remission right from the year 1989 -90 to 1998 -99. The petitioner has also paid 50% of the amount of AMG bill for all the years except 1992 -93 and in the year 1993 -94, the amount paid by the petitioner is more by Rs. 15,000/ - than the amount worked out on the basis of the 50% of the AMG bill. As the claims of the petitioner were not disposed of by the General Manager, the petitioner filed the Title Suit No. 91/93 before the Sub -Judge, Deoghar, who directed the General Manager to dispose of the pending claim of the petitioner within two months. The said order was passed on 16.4.1999. The petitioner produced the records maintained by it in usual course of business mentioning the duration of the non -supply of electricity to the General Manager, but the same was rejected without assigning any reason and ignoring clear directions of this Court given in the case of Suprabhat Steel Ltd. that the records maintained by the consumer in the regular course of business cannot be rejected without assigning any valid reason. The General Manager also did not take into account the inability of the petitioner to consume power due to machine downtime after each resumption of power supply. According to the petitioner, under clause 13 of the H.T. Agreement, Annexure1, the petitioner is entitled to proportionate remission in AMG and MD charges for the duration of non -supply of power and also for the reasons, like strike, riots, fire, floods, explosions, act of God or any other case reasonably beyond control. The formula for such consumption of remission in AMG and MD charges has been laid down by the court in Bihar Gases case. Though this decision rendered by this Court in Bihar Gases case was placed before the General Manager respondent along with the representation by the petitioner but that was not even referred to and the formula adopted by the respondent for arriving at the calculation as contained in Annexure -2 is contrary to the clause 13 of the H.T. Agreement as also the judgment of the High Court in Bihar Gases case. From the aforesaid facts as pleaded by the petitioner, his grievances are three (i) the adoption of a formula contrary to the formula laid down in Bihar Gases case by the High Court by the respondent, while disposing of the representation by Annexure -2, (ii) non -consideration of the Register by the General Manager, giving the accounts of the trappings maintained by the petitioner and (iii) the inability of the petitioner in consuming power even though the power supply was resumed for 20 minutes on each resumption of power not having been considered by the respondent -General Manager.
(3.) CLAUSE 13 of the H.T. Agreement reads as follows : "If at any time the consumer is prevented from receiving or using the electrical energy to be supplied under this agreement either in whole or in part due to strikes, riots, fire, floods, explosions, act of God or any other case reasonably beyond control or if the Board is prevented from supplying or unable to supply such electrical energy owing to any or all of the causes mentioned above then the demand charge and guaranteed energy charge set out in the Scheduled shall be reduced in proportion to the ability of the consumer to take or the Board to supply such power 'and the decision of the Chief Engineer, Bihar State Electricity Board, in this respect shall be final". A plain reading of the aforesaid provision makes it clear that the proportionate reduction has to be given in respect of the demand charge and guaranteed energy charge. This matter does not require any further elaboration in view of the decision rendered in the case of M/s. Suprabhat Steels Ltd. vs. Bihar State Electricity Board reported in BBCJ 1994 369, where the Court held that "Clause 13 in clear term applies not only in case of minimum guarantee charges but also maximum demand charges:' This view has not been unsettled till now. The Court further held that clause 13 in clear term applies not only in case of minimum guarantee charges but also maximum demand charges and is not only attracted when the Board is unable to supply electrical energy but also to a case where a consumer is prevented from receiving or using electrical energy and that it cannot be interpreted in a restrictive manner and the Board is bound to grant remission for any duration, if a case therefor is made out. In the present case, a specific case made out by the petitioner is that on every interruption in supply of power and on every resumption of power, it took 20 minutes for the machines to become operative again. Therefore, this 20 minutes on every resumption, even though there was power supply by the Board, yet the consumer petitioner became unable to utilize it and this inability is something beyond the control of the petitioner -consumer and therefore, it should have been taken into consideration by the respondent -Board. The petitioner in paragraph 15 of the writ petition has stated that the manufacturing process of the petitioner industry is a continuous process and on sudden interruption, the petitioner is rendered incapable of consuming the electricity for at least 20 minutes because the rollers get jammed, which require cleaning etc. But in paragraph 46, the petitioner said that the respondent General Manager be directed to consider the claim of the petitioner for further remission on account of inability of the petitioner to consume power at least for 10 minutes after resumption for the reasons beyond the control of the petitioner. Thus, the petitioner in two different paragraphs gives two period of time, i.e. 20 and 10 minutes respectively, during which it remains unable to utilize the power supply even in the event of resumption of the power supply due to machine jam etc. The petitioner itself is not very certain as to the accurate duration during which it remains unable to consume power even after resumption of power supply. When a machine is given power, it starts functioning and similarly, with the tripping of the power, it stops and even after resumption of the power, it may take sometime to start functioning due to inertia. Similarly, when a machine comes ultimately to a halt, even after resumption of power, under the same law of inertia, it may take sometime, however small, in becoming functional, but what will be the exact time is always a question of fact and the unilateral statement on this point that the consumer's machine took 20/10 minutes time in becoming functional cannot be accepted. As stated, it is a question of fact. Therefore, it is a situation, where it is desirable that a joint inspection be made by the respondents and the consumer and the average is found out as to how many minutes, the machines take in becoming functional after each resumption of power and then on that score, remission can be made because inability clause as used in Clause 13 will definitely include such situations when despite power supply the consumer remains unable to use it and it will be wrong on the part of the respondents to say that the inability of the petitioner -consumer during the period, for which the machine does not become operational despite power supply, cannot be considered for remission, for the simple reason that such a situation is an outcome of trippings.;