BIHAR STATE ELECTRICITY BOARDversusM/S. BIJOY MINING COMPANY LTD. AND ORS .

A                    BIHAR STATE ELECTRICITY BOARD
                                         v.
               M/S. BIJOY MINING COMPANY LTD. AND ORS .

                                  .JULY 15, 1996

B               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

           Elect1icity-Agreeme11t betwee11 Electricity Board and con-
    sumer-Clause ]~Annual mi11imum guarantee charge;-Bill fo1-0bjection
    by co11sumei-Ground that there was e1Tatic supply-Claim for propo1tionate
C   deduction from bill--W!it-High Cowt held that it was not open to Electricity
    Board to issue impugned bill without propo1tionate deduction-Appeal by
    Elect1icity Board-Held application should be made to competent authority
    for investigation of eimtic supply and propmtionate deductiolt-{)rder of High
    Cowt set aside-Liberty to consumer to file application to Chief Engineer of
D   Elect1icity Board-Cl1ief Engineer to make enquiry and give proporlionate
    deductittn if Board was responsible.

            CIVIL APPELLATE JURISDICTION : Civil Ap!Jeal No. 9843 of
    1996.

E        From the Judgment and Order dared 21.9.93 of the Patna High Court
    in C.W.J.C. No. 2811of1993.

            Pramod Swamp for the Appellant.

            Gopal Prasad and Ejaz Maqbool for the Respondents.
F           The following Order of the Court was deljvered :

            Leave granted.

            Heard learned counsel on both sides.
G          This appeal by special leave arises against the order of the Division
    Bench of the High Court of Patna, dated September 21, 1993 made in
    CWJC No. 2811/93. Admittedly, the respondent had entered into an agree-
    ment with the appellant-Board for supply of electricity pursuant to which
    the respondent was required to pay the minimum guarantee charges. When
H   a bill was issued, it would appear that the respondent had objected to the
                                         588
       BIHAR STATE ELECTRICITY BO. v. BJJOYMINING CO. LTD.              589

minimum guarantee bill on the ground that there was erratic supply of A
electricity and the Board was unable to supply the required quantity of the
electricity. Consequently, the respondent is not liable to pay the minimum
guarantee under the contract. The High Court allowed the writ petition
finding that on an earlier occasion the High Court in CWJC No. 3642/92
had disposed of writ petitions on February 25, 1993 directing the Board to
                                                                            B
raise fresh bill giving proportionate reduction in the annual minimum
guarantee charges, but the same not being complied with it is not open to
the Board to give the bill as impugned in the writ petition.

      It is seen that clause 13 of the agreement provides as_ under :

         "13. - if at any time the consumer is prevented from receiving or
                                                                              c
         using the electrical energy to be supplied under this agreement
         either in whole, or in part due to strike, riots, fire, floods, ex-
         plosions, act of God or any other case reasonably beyond control
         or if the Board is prevented from supplying or unable to supply
         such electrical energy owing to any or all of the cause mentioned D
         above than 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.                                     E
         Note: The term Chief Engineer includes additional Chief Engineer
         for the area concerned."

       A reading thereof would clearly indicate that the Board is enjoined
 to give proportionate reduction provided any one of the conditions p
 enumerated th.erein had occasioned. Obviously, an application in that
 behalf shall be required to be filed to the the Chief Engineer of the Board .
·who was required to investigate into the matter and then his decision shall .
 be final. It would appear that a representation was made, but it is not clear
 whether it was to the Chief Engineer, the competent authority in terms of
 the agreement or any other officer. Under these circumstances, unless an G
 application is made to the competent authority to investigate into the
 matter, the Board in terms of clause 13 of the contract is necessarily
 obliged to demand and the consumer is to comply with the payment of
 minimum guarantee amount in terms of the agreement, subject to the
 decision by the Chief Engineer. Accordingly, we set aside the order of the H
   590                   SUPREME COURT REPORTS (1996] SUPP. 3 S.C.R.

A High Court giving liberty to the respondents to make an application afresh
  within a period of one month from the date of the receipt of this ,mler to
  the Chief Engineer, Electricity Board. The Chief Engineer would enquire
  into and give the decision in that behalf. In the event, the Chief Engineer
  finds that the Board was responsible, then necessarily, in terms of clause
B 13, the proportionate reduction is required to be given to the respondents.
          The appeal is accordingly ordered. No costs

    T.N.A.                                                  Appeal ordered.