CASTINGS INDIALTD Vs. BIHAR STATE ELECTRICITY BOARD

JUDGEMENT

(1.) In all these four applications, the petitions are Small Scale Industries established in the districts of Singhbhum, Hazaribagh and are engaged in the manufacture of Re rolled steel products. These Industries were set up during the period 1972 to 1975. As in these applications, common questions are involved and the facts pleaded are similar, by the consent of parties, they have been heard together and are being disposed of by this judgment, which will govern them all. The prayer of the petitioners in all these applications is to issue a writ of mandamus commanding the Bihar State Electricity Board (hereinafter to be referred to as 'the Board' and their Officers as to desist from demanding and realising the minimum guarantee charges by way of short-fall and the increased fuel surcharge.

(2.) The case of the petitioners is that electricity is supplied to them under the incentive schemes sponsored by the Government of Bihar in the Department of Industries (Technical Education) and Cane, made under several resolutions providing for incentives and reliefs to Small Scale Industries, Large and Medium Scale Industries and Sick and Closed Industries. By a notification No. 5057, dated the 20th November, 1973, copy of which is Annexure-1 in C.W.J.C. No. 328 of 1977 (R) (In this judgment unless expressly stated, reference will be to C.W.J.C. No. 328 of 1977 (R)), it was provided that Small Scale Industries, which had started production from the 2nd October, 1973 would be subsidised at the rates of 9 paise per unit inclusive of electricity duty, which would be payable from the 1st of April, 1974. It was further provided that the Board in billing the consumer would deduct the subsidy as mentioned above. It was further provided that the Board would directly bill the Bihar State Industrial Development Corporation for the estimated amount of subsidy in two half-yearly installments beginning from the following financial year in the months of June and December. Small Scale Industries were also made eligible to be exempted from minimum guarantee charges. By resolution No. 16808 dated the 29th September, 1973, copy of which is Annexure-2, Government further stated that the Board had offered to grant a rebate of l/3rd of the normal tariff for Industries operating between 10-30 P.M. to 8-30 A.M. and for electricity consumed during that period. The Board entered into an agreement with the petitioners on a Performa known as High Tension Agreement Form and the supply of energy to the petitioners by the Board is under general high tension service at 11 KV. copy of this agreement is Annexure-3. The annual minimum guarantee bill which was earlier paid by the Industries Department, Govt. of Bihar, on the basis of a Circular bearing No. 16807, dated the 29th September, 1973, copy of which is Anpexure-4 has been withdrawn. It is stated that this withdrawal is mala fide and illegal. It is further stated in the petition that the charges in regard to the supply of electricity has been increased from time to time against different heads arbitrarily and illegally which has resulted in increase in charge under different heads from 40 per cent, to 600 per cent. Statement in support of this has been appended and marked as Annexure-5. It is also the case of the petitioners that the basis of calculation of minimum guarantee for every connected load is at 11 K.V. The consumption of energy fixed by the Board at 7008 units per year is arbitrary and impracticable. It is further said that the agreement entered into between the petitioners and the Board is arbitrary as it confers unilateral power and liberty to the Board at any time to alter tariff including fuel charge and minimum guarantee charge. In a supplementary affidavit filed by the petitioners on 1st November, 1977 it has further been stated that the request to the petitioners to the Board against the excessive and surplus charges and had remained unheaded and even the Managing Director of Adityapur Industrial Area Development Authority, Adityapur, had written to the Board for the same but no action had been taken thereon.

(3.) A counter-affidavit has been filed on behalf of the Board in which, it is stated that what has exempted by the Government was minimum guarantee charge and not minimum fixed charge. It has further been said that as the Department of Industries stopped contributing the minimum guarantee charge with effect from the 1st April, 1976 the Board had no alternative but to realise the same by directly billing the consumers which under the agreement, the consumer was bound to pay. It has further been said that the annual minimum guarantee charge is based only on the 25 per cent, load factor for higher tension consumer availing supply at 11 K.V. It is asserted that the electricity charges were not arbitrarily raised but were lawful. The Board has further asserted that the supply of electricity is maintained regularly except for some interruptions which are unavoidable and occur in natural course in the regular supply and maintenance of electricity. The minimum guarantee charges are based on tariff which had been framed under statutory sanction after taking into account the costs of different component used in the generation of electricity. It is pointed out that the Board has the statutory right to frame its own tariff, in accordance with the provisions of Sections 46 and 49 of the Indian Electricity (Supply) Act, 1948 (hereinafter referred-to as 'the Act'). Fuel charge and minimum guarantee charge included in tariff in accordance with the provisions of law.