M.Y.EQBAL,J. - (1.) IN this writ petition, the petitioner has prayed for issuance of writ for quashing the order as contained in letter dated 8.11.2007 issued by the Electrical Superintending Engineer, Jamshedpur, whereby he has refused to reduce the contract demand of the petitioner from 4000 KVA to 1325 KVA on the basis of Clause 9(b) of the High Tension Agreement and further for a direction to the respondents to immediately reduce the load of the petitioner's unit from 4000 KVA to 1325 KVA on the basis of application made by the petitioner on 20.09.2007.
(2.) PETITIONER 's case inter alia is that it is a small scale industry having several units at Adityapur (Jamshedpur) and the instant case pertains to Plant 3 and 4 situated by the side at Phase -VII of the Industrial area at Adityapur. In 2004 petitioner entered into an agreement with the Jharkhand State Electricity Board (in short 'the Board') on 14.04.2004 for High Tension connection having connected load of 325 KVA. According to the petitioner, because of continuous demand of products of the petitioner, it decided to enhance its production and as such applied for enhancement of its load from 325 KVA to 1325 KVA which was allowed by the General Manager -cum -Chief Engineer of the Board on 14.3.2006. An agreement to that effect was entered into between the petitioner and the respondent -Board for enhanced load of 1325 KVA. Again in the 2006 itself, petitioner further made a request to the Board for enhancement of load from 1325 KVA to 3500 KVA which was duly allowed by the General Manager -cum -Chief Engineer of the Board vide letter dated 26.12.2006. Again on the request of the petitioner, further load of 500 KVA was sanctioned and an agreement to that effect was entered into between the petitioner and the respondent -Board on 07.7.2007 for supply of 4000 KVA in the unit of the petitioner. However, the petitioner alleged that after enhancement of load from 3500 to 4000 KVA, petitioner was facing major power trippings as well as continuous load shedding which was affecting the costly machineries and, therefore, the petitioner decided to reduce the load from 4000 KVA to 1325 KVA. Accordingly, petitioner made an application on 20.9.2007 before the authority of the respondent -Board for reduction of contract demand from 4000 KVA to 1325 KVA. The said letter was followed by another letter dated 05.10.2007. The said application was rejected by the Electrical Superintending Engineer and the same was communicated vide letter dated 8.11.2007 informing the petitioner that from the date of enhancement of supply, the agreement is enforced for a period of three years and if at all, the petitioner decides to terminate the agreement, in that event the petitioner is to bear the liability of three years i.e. the petitioner will have to pay the minimum guarantee charges and other charges for the remaining period of the agreement. The petitioner's case is that the Board cannot refuse to reduce the load, especially when the Board is unable to supply energy an per requirement of the petitioner, failing which the petitioner would have no option but the close down its unit, rather to avail the electric supply from the Board. The respondents' case in the counter affidavit is that the Jharkhand State Regulatory Commission (in short 'Regulatory Commission') in exercise of its power conferred by Clause 10 the Sub -section 2 of Section 181 read with Section 50 of the Electricity Act, 2003 has issued a notification known as (Electricity Supply code), Regulation 2005. According to Clause 9 of the Regulation, the reduction of load shall be allowed by the Distribution Licensee only after the expiry of initial period of agreement. The Board's case is that earlier the petitioner executed an agreement on 16.4.2004 for a contract demand of 325 KVA. Subsequently, a separate agreement was executed on 12.9.2006 for a contract demand of 1325 KVA. Further on 07.7.2007, the petitioner executed an agreement for a contract demand of 4000 KVA. The application filed by the petitioner for reduction of load was duly considered by the Electrical Superintending Engineer and the same was refused on the ground that reduction cannot be allowed in view of Clause 9(a) of the H.T. Agreement and the relevant provisions of the Regulation.
(3.) THE first agreement entered into between the petitioner and the Board for a contract demand of 325 KVA is dated 16.4.2004 a copy of which has been annexed as annexure -1 to the writ petition. The last agreement entered into between the parties was 07.7.2007 for a contract demand of 4000 KVA by enhancing load from 35100 KVA. A copy of the said agreement has been annexed as annexure 5 to the writ petition. Clause 9(a) and (b) of the agreement read as under: 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 and 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 and assign this agreement to another 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 apply for reconnection in accordance with law within the remainder period of the compulsorily availing of supply as stated above or the period of notice 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 abovesaid 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 way as above. ;