M.Y.EQBAL,J. - (1.) IN these writ petitions filed by the petitioners against the Jharkhand Stale Electricity Board, a declaration has been sought that Clauses 8 and 9 read with Clause 4 of the Standard Form or High Tension agreement (H.T. agreement) are unconstitutional and violative of Articles 14, 19(1)(g), 21, 298 and 300A of the Constitutional of India and Section 23 of the Indian Contract Act, 1872 as the same are unjust, unfair, unreasonable and against the public interest and further for quashing the Final Demand Bill dated 05.02.2008 and 18.2.2008 raised by the respondent -Board levying a sum of Rs. 6,50,000/ - and Rs. 4,90,000/ - respectively being the amount of monthly minimum guarantee for a period of 22 months.
(2.) THE facts of the case lie in a narrow compass: The petitioners are the manufacturers and dealers of automobile components and passenger cars of Tata Motors having their workshops situated in Adityapur industrial Area in the district of East Singhbhum. The petitioners, for the purpose of their workshops, submitted a requisition in the prescribed form before Jharkhand State Electricity Board (in short 'the Board') for supply of electric energy of 165 KVA and 100 K.V.A respondent No. 4, the Electrical Superintending Engineer, agreement/contract was centered into between the petitioners and the Board on 11.10.2006 for supply of 105 KVA and 100 K.V.A. Petitioners' case is that at the time of entering into the agreement, the respondent -Board duly assured the petitioners that the Board will furnish uninterrupted supply of electrical energy but, in fact, there has been so many interruptions of electrical supply, load shedding, sub -standard quality of electrical supply and that too without notice to the petitioners resulting into heavy loss and damage to the petitioners because of sudden halt of working in the workshops. Petitioners' further case is that because of aforesaid reasons the petitioners were forced to take shelter of the D.G. Set in order to generate electricity in their workshops. Due to the aforesaid non -supply and also supply of sub -standard electricity, the petitioners alleged to have incurred heavy loss and ultimately the petitioners switched over and started taking supply of electrical energy from another distribution licensee i.e. JUSCO. The petitioners ultimately wrote a letter dated 24.12.2007 and 14.122007 respectively to respondent No. 4 requesting him to disconnect power supply to the units of the petitioners. Respondent No. 5 then directed the petitioners to deposit a sum of Rs. 6.5 lacs and 4,90,000/ - respectively, being monthly minimum guarantee for future period of 22 months i.e. from February, 2008 to November, 2009. The petitioners deposited the said amount under protest in order to get their line disconnected and to get a new connection from another distribution licensee, i.e. JUSCO. Thereafter the Board raised final demand against the petitioners after deducting the aforesaid amount which came to Rs. 3,02,218/ - and Rs. 18,264/ - respectively which were also paid by the petitioners vide cheques dated 13.1.2008 and 20.2.2008 respectively. The petitioners, therefore, challenged the demand of the Board for payment of minimum guarantee charges for the rest of the period of agreement as being violative of the provisions of the Constitution of India and the Contract Act. The respondent -Board, in the counter -affidavit, has denied and disputed the allegation that there had been frequent power tripping. The duration of the tripping shown by the petitioners in Annexure 3 (D.G. Set details) has no sanctity. According to the respondents, there was supply of electricity for more than 20 hours during the day to the petitioners and therefore, it cannot be said that the Board has made non -supply/short -supply of electricity to the petitioners. Respondents' further case is that as per Clause 8 of the H.T. agreement and also Clause 7.5 of the Electricity Supply Code Regulation, 2005 framed under the Electricity Act, 2003, a consumer can terminate agreement only after expiry of the initial period of agreement by giving 30 days notice to the distribution licensee. In the event agreement is terminated before the expiry of the initials period of agreement, the consumer shall be liable to pay charges as per tariff for the balance period of initial period of agreement. Respondents' further case is that no consumer is allowed to terminate the agreement for the reason that if the licensee enters into an agreement with a consumer for specific quantum of electricity, then the licensee, in its turn, enters into a separate agreement with the power transmission Companies for making available the required quantum of electricity to its consumer. Lastly it is stated that the Regulation having been framed under the power conferred to it by the Electricity Act, is statutory in nature and thus both the licensee and the consumer are bound by the same.
(3.) BEFORE appreciating the cases of the parties, I would first like to quote Clauses 8 and 9 of the H.T. agreement entered into between the petitioners and the consumer which read as under: Clause 8: The agreement shall be ordinarily in force for a period of less than three years in the first instance (expect in exceptional cases in which written consent of the Board will be taken) from the date of commencement of supply i.e. 15.11.2006 and thereafter shall continue from year to year until the agreement is determined as hereinafter provided. Note: In case where the date of commencement of supply is a date subsequent to that of the execution of this agreement, the Board is given power to fill in the date in the blank space provided for the same in this clause with prior intimation to the consumer. The consumer can produce his copy of the agreement to have such date filled in by the Board. Clause 9(a). The consumer shall not be at liberty to determine this agreement before the expiration of three years from the date of commencement of the supply of energy. The consumer may determine this agreement with effect from any date after the said period on giving to the Board not less than twelve calendar months' previous notice in writing in that behalf and upon the expiration of the period of such notice this agreement shall cease determine without prejudice to any right which may then have accrued to the Board hereunder provided always that the consumer may at any time with the previous consent of the Board transfer assign this agreement to any other person and upon subscription of such transfer. This agreement shall be binding on the transferee and Board and take effect in all respects as if the transferee had originally been a party hereto in place of the consumer who shall henceforth be discharged from all liabilities under or in respect thereof. (b) In case the consumer's supply is disconnected by the Board in exercise of its powers under this agreement and/or law and the consumer does not supply as started above or the period of noticed whichever be longer, he will be deemed to have given a notice on the date of the disconnection in terms of aforesaid Clause 9(a) for the determination of the agreement and on expiration of the above said reminder period of compulsorily availing of supply or the period of notice whichever is longer, this agreement shall cease and determine in the same way as above. ;