AJIT KUMAR SINHA,J. - (1.) THE present writ petition has been filed by Tata Iron and Steel Company Ltd. for the following reliefs : (a) For quashing the order dated 19.4.2000 relating to the financial year 1972 -73 communicated to the petitioner vide letter No. 584 dated 19.4.2000 passed by the General Manager -cum -Chief Engineer, Singhbhum Area, Jamshedpur whereby and whereunder he has been pleased to reject/dismiss the entire claim of the petitioner, interalia, for the financial year 1972 -73 under Clause 13 of the High Tension Agreement. (b) For a declaration that the petitioner is entitled to remission in Maximum Demand Charges for the financial year 1972 -73 under the following heads: (i) Remission for the period of non -supply of energy. (ii) Remission for the period of load restriction as the petitioner was prevented from using electricity during the said period as per requirement and the production was hampered due to such load restrictions. (iii) Remission for the period during which the petitioner was though supplied at full load but the duration was so short trial it was impossible for the petitioner to operate the plant and machinery to a level sufficient for the production and consequently the petitioner was prevented from using the same for the reasons beyond its control. (c) For a direction upon the respondents to immediately refund the excess amount deposited by the petitioner against the maximum demand charges for the year 1972 -73 after giving effect to the aforesaid claim of remission under Clause 13 of the Agreement with interest at the rate of 2% per month, especially in view of the fact that the said claim was pending before respondent No. 4 for a long time wholly due to the lapses on the part of the respondents. (d) For restraining the respondents from raising any fresh bill pursuant to the impugned order dated 19.4.2000 passed by the respondent No. 4. The petitioner has challenged the common order dated 19.4.2000 whereby and whereunder respondent No. 4 has been pleased to dispose of the claims of the petitioner under Clause 13 of the H.T. Agreement relating to different financial year while rejecting the claims of the petitioner in totality. The following chart as supplied is indicative of the case number and related financial year in question in nine writ petitions preferred by the petitioner TISCO which is being disposed of by this common order: CaseNo. Year C.W.J.C.1688 of 2000 1972 -73 C.W.J.C.1692 of 2000 1973 -74 C.W.J.C.1691 of 2000 1974 -75 C.W.J.C.1699 of 2000 1975 -76 C.W.J.C.1701 Of 2000 1977 -78 C.W.J.C.1690 of 2000 1978 -79 C.W.J.C.1689 of 2000 1979 -80 C.W.J.C.1694 of 2000 1980 -81 C.W.J.C.1700 of 2000 1981 -82
(2.) THE facts, in brief, are set out as under: The petitioner is a Public Limited Company within the meaning of the Companies Act, 1956 having its registered office at 24, Homi Mody Street, Fort, Mumbai and it has integrated Steel Plant at Jamshedpur. The main business/activities of the petitioner is to manufacture iron and steel and steel products and further to supply electricity in the township of Jamshedpur. The petitioner require regular supply of electricity in bulk quantity and also require regular supply of electricity for manufacturing electricity at Adityapur and for mining activities at Noamundi, west Bokaro and Jamaddoba and it also require the same for running the pelletising Plant at Noamundi. The respondent Bihar State Electricity Board, as it then was (hereafter referred to as 'Board') is a state within the meaning of Article 12 of the Constitution of India. The petitioner is a consumer under the Bihar State Electricity Board drawing power from the respondent Board. The petitioner is also a sanctioned holder of channel and supply of electricity under the Indian Electricity Act 1910 for the purposes of operating the Noamundi Iron Mines. The petitioner entered into an agreement with the Board for supply of High Tension Electricity at 33,000 volts, 3 phase, 3 wire and 50 cycles having a contract demand of 5000 KVA i.e. maximum kilovolt ampere required by the petitioner for the purposes of running the Noamundi Palletising Plant. The petitioner entered into an agreement on 8.4.1969 with the Board for supply of High Tension Electricity having a contract demand of 8000 KVA at 33,000 volts, 3 phase, 3 wire and 50 cycles, the total contract demand of the petitioner for running the iron ore mine and the palletising plant. The total contract demand of the petitioner was 13000 KVA (5000 KVA for Iron ore mine+ 8000 KVA for pelletising plant) to be supplied by the Board at 33,000 volts, 3 phase, 3 wire and 50 cycles from Noamundi Receiving Station. A minimum of 48000 KVA was required to operate Noamundi Iron Ore mine and a minimum of further 5000 KVA was required to operate one of the units of pelletising plant. Thus, for the purposes of utilizing the energy a minimum of 98000 KVA was required by the petitioner. The palletizing plant of the petitioner was to run round the clock with workers working in three shift. The relevant Clause 4 and Clause 13 of the said agreement is reproduced herein below for ready reference: Clause -4(a) the consumer shall pay to the Board for the energy so supplied and registered as aforesaid at the rates given in the schedule provided that minimum charges as specified in the schedule appended hereto shall be paid irrespective of whether energy to that extent has been consumed or not. (b) For the purpose of this agreement the maximum demand of the consumer for each month shall be highest large total amount of Kilo volt ampere (KVA) delivered to the consumer at the point of supply during any consecutive 30 minutes in the month. (c) Maximum demand charges for supply in any month will be based on the maximum KVA demand for the month or 75 percent of the contract demand whichever is higher, subject to provision of Clause 13. For the first twelve months' service the maximum demand charges for any month, will however, be based on the actual monthly maximum demand for the month. Clause 13 - If at any time the consumer is prevented from receiving or using electrical energy to be supplied under the agreement either in whole or in part due to strikes, riots, fire, floods, explosions, Act of God or any other cause reasonable beyond control; or if the Board is prevented from supplying or unable to supply such electrical energy owing to any reason or all of the causes mentioned above then the demand charge and guaranteed energy charge set out in the schedule 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. 4. The contract demand of a consumer is the maximum KVA (kilo volt ampere) for the supply of which the Board undertakes to provide facility from time to time and the Board was under a legal obligation under Clause 1(a) of the Agreement to provide for making a constant supply of electricity at the given pressures to the consumers including the petitioner. The High Tension consumers, inter alia, are liable to pay the following two charges to the Board subject to remission as provided under Clause 13 of the High Tension Agreement: (i) 'Energy charges' to be realized each month on actual consumption of units in a month (over this actual consumption Clause 13 of the agreement should not apply). (ii) 'Minimum base charges' (over this charge Clause 13 of the agreement applies). (a) 'Demand Charges' (commonly known as Maximum Demand Charges) i.e. KVA charges realized every month in the monthly energy bills as KVA charges) (b) Annual Guaranteed energy units charge (commonly known as AMG charges) to be realized annually in case of shortfall in consumption of guaranteed units in a year by raising a separate bill known as AMG bill. (c) 'Demand charges' is the amount chargeable per month in respect of Board's readiness to serve the consumer at the contract demand irrespective of whether he consumes any energy or not and is based upon the maximum demand and/or the contract demand of the consumer. However, such charges realized is subject to remission under Clause 13 of the High Tension Agreement. Likewise 'Annual Guaranteed energy units charges' is the minimum guaranteed units of energy which a consumer undertakes to consume during a year irrespective of whether he actually consumes the same or not. However, this charge is also subject to remission under Clause -13 of the High Tension Agreement. Clause 4 of the aforesaid agreement provides that for the purpose of the agreement the maximum demand of the consumer for each month shall be the highest total amount or Kilo volt ampere (KVA) delivered to the consumer at the point of supply during any consecutive 30 minutes in a month. Clause 4 of the agreement also provides that the maximum demand charge for supply in any month will be based on maximum kilo volt ampere demand for the month or 75% of the contract demand whichever is higher subject to the provision of Clause 13. As per the provision of Clause 13 of the said agreement the consumer is entitled to proportionate reduction/remission in the demand charges and guaranteed energy charges if he has been prevented from receiving energy to be supplied under the agreement or prevented from using the electrical energy to be supplied and or if the Board is unable to supply such electrical energy under the agreement. 6. Sri Binod Poddar, learned Senior Counsel appearing fur the petitioner submits that immediately after installation of the palletising plant in the year 1971 the Board imposed load restriction due to less power availability. The power restriction imposed were illegal, erratic and the full power was available only for a very restricted period which affected the plant itself and led to shut down in the year 1972 -73 and the petitioner was forced to lay off of its workers. This fact was brought to the notice of the respondent Board and representations were also given on 21.4.1973 followed by 4.5.1973 and also meetings were held on 17.11.1976 to ensure uninterrupted supply of power. The power problem led to frequent shut down of the palletising plant. The petitioner's representatives also met the Chairman in this regard and the minutes of meetings were prepared and assurances were given but the instructions were not adhered to. The repeated assurance regarding installation of 132/133 KVA sub -Station and Installation of transformer so as to ensure uninterrupted power supply at contract demand to the petitioner was never given effect to by the officers of the Board and interruption/load restrictions and trapping in power supply continued at the palletising plant which led to large scale production loss and frequent closure. The meeting and the representation continued and followed thereafter between 1978 to 1980. The petitioner received a letter bearing memo No. 566 dated 15.5.1980 from the Assistant Electrical Engineer allocating only 2 MVA power to the petitioner against the contract demand of 14.2 MVA and was also asked to follow strictly the load restriction. Finally the petitioner decided to close down the plant and accordingly communicated the same to the Executive Engineer vide its letter dated 23.3.1981. No reply was received thereafter from the respondent Board. According to the learned Sr. Counsel in spite of failure on the part of Board they continued charging maximum demand charge at the rate of 75% of the contract demand for the actual maximum demand as indicated, the maximum demand indicator whichever was higher for the entire bill period without giving any remission under Clause 13 on account of the interruption and or on account of inability on the part of the Board to supply energy at contract demand and the petitioner has paid such bill under protest. The petitioner accordingly filed its claim for proportionate remission under Clause 13 of the agreement before the General Manager -cum -Chief Engineer, respondent No. 4 herein, for the particular year in question. The further claim of the subsequent years for the year 1972 -73 to 1975 -76 and 1977 -78 to 1981 -82 were kept pending for the respondent No. 4 from year to year and was finally disposed of vide a common order dated 15.5.1987 rejecting the entire claim of the petitioner for remission of maximum demand charges and or A.M.G. charges.
(3.) THE petitioner, being constrained filed a writ petition being C.W.J.C. No. 877 of 1987 (R) inter alia for quashing of the aforesaid common order dated 15.5.1987 relating to financial years 1972 -73 to 1975 -76 and 1977 -78 to 1981 -82 passed by the General Manager -cum -Chief Engineer, respondent No. 4. The writ petition was admitted for final hearing and vide order dated 8.7.1987 the petitioner was directed to pay Rs. 30 lakhs on account of annual minimum guarantee charges against the aforesaid years and the respondent Board was directed not to take any coercive steps during the pendency of the writ petition. The petitioner accordingly deposited the aforesaid amount. The writ petition was finally disposed of on 6.9.1995 whereby and whereunder the Hon'ble Court was pleased to quash the aforesaid order dated 15.5.1987 passed by respondent No. 4 on the ground that the points raised by the petitioner was not considered and the matter was remitted back to respondent No. 4 to pass a fresh order dealing with the various contentions raised by the petitioner and also after considering the decision of the Hon'ble Supreme Court as well as other judgments. The petitioner immediately filed a representation before the General Manager -cum -Chief Engineer, respondent No. 4 herein, in compliance with the direction issued by the High Court vide its order dated 6.9.1995 passed in C.W.J.C. No. 877 of 1987(R) and also prayed to fix it for hearing. A written submission was also given. The petitioner did not receive any communication from respondent No. 4 which led to filing of another writ petition being C.W.J.C. No. 1625 of 1997 (R) for early disposal of the claim of the petitioner under Clause 13 of the agreement for all the aforesaid years. It also filed a contempt petition M.J.C. No. 725 of 1997 (R). This Court ultimately disposed of the petition vide order dated 22.4.1998 directing the respondent No. 4 to decide the claim expeditiously, preferably within two months. It appears that again a writ petition bearing C.W.J.C. No. 1903 of 1998 (R) was filed by the petitioner to dispose of its pending claim under Clause 13 of the agreement and this Court vide its order dated 26.10.1999 directed the respondent Board to dispose of the claim within 10 weeks. It also observed that if the claim is not decided within the aforesaid period, the respondent Board will not raise claim with regard to annual minimum guarantee charges. More time was sought by the Board which was granted till 20th April, 2000. Finally respondent No. 4 was pleased to dispose of the claim of the petitioner under Clause 13 of the High Tension agreement relating to the aforesaid years in question by rejecting the claim of the petitioner in totality and the same was communicated to the petitioner vide letter No. 584 dated 19.4.2000. The aforesaid common order passed by the G.M, respondent No. 4 is sought to be challenged in the present batch of writ petition before this Court.;