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2009 (12) TMI 517
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....n the nature of mandamus directing the respondents to adjust and refund the amounts which the UPSEB owes to the petitioner. (v)In the alternative to issue a writ, order or direction declaring regulation 17(ii) of the Electricity Supply (Consumers) Regulation, 1984, insofar as it is being sought to be applied by the respondents to old consumers like the petitioner covered under regulation 17(vi) as being ultra vires of Article 14 of the Constitution of India and as also against the letter and spirit of section 23 of the Indian Contract Act. (vi)Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; and (vii)To award costs of this petition to the petitioner." 2. The fact remains that the petitioner is a partnership concern, engaged in the manufacture of steel strips. For the purpose of manufacturing in the rolling mills, the petitioner entered into an agreement with the U.P. State Electricity Board on 6 March, 1987, for supply of electrical energy of 580 KVA load on 11 KV supply voltage. Subsequently, the petitioner applied for an additional power load of 220 KVA, which was sanctioned ....
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....erest and other charges as arrears of land revenue and ultimately a citation was issued. Against the citation the petitioner preferred a writ petition, which was disposed of by this court directing the respondents to decide the representations of the petitioner. The petitioner moved a fresh representation and the respondents rejected the same without disclosing any reason. Hence, the petitioner filed present writ petition. 4. However, upon hearing the parties, this writ petition was dismissed on 29 July, 1998 by holding a view that the dispute amongst the parties is squarely covered by the arbitration clause available in the agreement entered into between the parties. Against such order an appeal was preferred by the petitioner and a three judges' bench of the Supreme Court by its order dated 27 October, 1999, held that the dispute should not have been resolved by referring the same to the arbitrator because the questions raised in the writ petition are required to be examined by the High Court specially when vires of regulation 17(ii) of the Electricity Supply (Consumers) Regulations, 1984 (in short the regulations) has been questioned. As a result whereof, the matter has been ....
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....arch, 1987, but ultimately last agreement was executed on 1 July, 1996, to reduce the load. 8. Mr. S.N. Verma, learned senior counsel appearing for the petitioner, by his vast experience, apprehended a question of the respondents that when the petitioner is governed by the contract executed by or between the parties, one of the contracting parties cannot turn around challenging rules or regulations which are implicit in the contract and, called upon us to give revised look to the well celebrated judgment of the Supreme Court reported in Central Inland Water Transport Corporation Ltd. v Brojo Nath Ganguly [1986] 3 Comp LJ1 (SC): AIR 1986 SC 1571. The moot point of such judgment is that when the parties are in unequal bargaining position and no option is left to the party except to execute the contract on the terms and conditions unilaterally dictated by any governmental authority such contract is amenable under writ jurisdiction of the court. Though the aforesaid judgment is related to service contract but by now the scope is expanded. Following such ratio in DCM Ltd. v Assistant Engineer (HMT sub-division) Rajasthan State Electricity Board, Kota AIR 1988 Raj 64, a division bench....
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....na and others v Green Rubber Industries and others AIR 1990 SC 699, to establish that the stipulation of minimum guarantee charges cannot be held to be ultra vires on the ground that it is incompatible with the statutory duty. Difference between contractual element and the statutory duty have to be observed. A supply agreement to a consumer makes his relation with the Board mainly contractual, where the basis of supply is held to be statutory rather than contractual. He further placed reliance on the division bench judgment of this High Court reported in Pilibhit Ispat ( P) Ltd. and others v U.P. State Electricity Board and others AIR 1996 All 329, to show that mere disconnection of electricity supply would not amount to termination of the contract and if there was no application for restoration within seven days of disconnection, that would be deemed to be a notice for termination, and the contract would be terminated either at the end of this period of the notice or the tenure of the agreement, whichever was longer. He further relied upon a Full Bench judgment of the Madhya Pradesh High Court reported in Raymond Ltd. v State of Madhya Pradesh and others AIR 1999 MP 143 (FB), wher....
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....r can be called as consumer at all for realization of any amount subsequent thereto. Section 2 (c) of the Electricity Act is quoted hereunder: "'Consumer' means any person who is supplied with, energy by a licensee or the Government or by any other person engaged in the business of supplying energy to the public under this Act or any other law for the time being in force, and includes any person whose premises are for the time being connected for the purpose of receiving energy with the works of a licensee, the Government or such other person, as the case may be;" 13. It is true to say that the agreement between the Corporation or the Board and the consumer is contractual when the discharge of duty by the licensee is statutory one but in case the disconnection has been made, no question of any statutory duty is to be discharged beyond the period of disconnection. If at all it is construed that the word 'consumer' includes both, an intended consumer and a disconnected consumer under regulation 2(b), which cannot supersede the determination of the Act, yet a claim cannot arise when there was no supply or consumption of electricity. Though the agreement is contractual in nature ....