S.K. CHAWLA, J.

(1.) The question involved in this writ petition is, whether a consumer of high tension industrial power, on account of interrupted supply of electrical energy due to power cuts, is relieved of the obligation to pay minimum monthly charges and is liable to pay only to the extent of electrical energy actually consumed by him

(2.) The petitioner, M/s. Gwalior Steels Private Limited, is a Company under the Companies Act, 1956, having a Mini Steel Plant at Banmore, District Morena, M. P., manufacturing special alloy steel castings and Sections. The plant was granted high tension industrial power connection by Madhya Pradesh Electricity Board (respondent herein) under an agreement, Annexure A. It was undertaken under the agreement that the petitioner would be supplied electricity for a load of 3500 K.V.A. (Kilo Volt Amperes) on 33 K.V. That demand of electricity having been contracted to be supplied is called "contract demand", a phrase which may have to be used in discussion hereafter.

(3.) It is easy to visualise that there may be two kinds of bases to charge for the electricity. One basis may be to charge it on the rate of inflow or load of electricity supplied, i.e., on K.V.A. Another basis may be to charge it on the actual consumption of electricity, measured in units. It was undertaken under the agreement in question that the petitioner would pay each month minimum charges on the K.V.A., at the rate of consumption of 100 units per K.V.A. on the contract demand, whether any energy was consumed or not. This was subsequently raised to the rate of consumption of 150 units per K.V.A. of the contract demand. The contract demand being 3500 K.V.A., the minimum charges came to 3500 multiplied by 150, that is equal to 5,25,000 units. At the tariff rate of 93 paise per unit, the total minimum monthly charges worked out to Rs. 4,88,250/-. In other words, the petitioner undertook to pay monthly minimum charges of Rs. 4,88,250/- per month for the load of energy contracted to be supplied to him. It will be seen that in order to save loss on the price of electricity it was necessary that the petitioner should have consumed each month at least 5,25,000 units of electrical energy.

(4.) The Mini Steel Plan in question of the petitioner came to be energised on 22/08/1991. Right from that time, power cuts were applied by M.P.E.B. (hereinafter referred to as "the Board") with the result that there never was continuous uninterrupted supply of electricity throughout 24 hours in a day. The consumption of electricity in units by the petitioner could never reach the level of minimum monthly charges in any month.

(5.) The case of the petitioner Company is that during the period from August, 1991, i.e. inception of the Plant, till December, 1991, the power-cuts were to the extent of a total of 560 hours as detailed in Annexure-E to the petition. As per Clause 11 of the agreement, Annexure-A, the Board was obliged to ensure uninterrupted and continuous supply of electricity to the petitioners Plant. The Board had failed to live-up to this obligation. As a result, the petitioner was prevented from consuming electricity even up to the level of minimum charges. The electricity actually consumed by the petitioner, measured in units, for the period August, 1991 to December, 1991, came to 10,71,384.60 units of the value of Rs. 9,96,026.40 p., whereas the minimum charges for this period came to Rs. 20,61,500.00. The details and break-up are given in paragraph 14 of the petition. Thus, the minimum charges exceeded by about rupees the lacs over the value of electricity consumed during this period. The minimum charges in fact exceeded actual consumption even for subsequent months until the present petition was filed. The case of the petitioner is that in such a situation Clause 23 of the agreement, Annexure A, was attracted and under it the petitioner was liable to pay only to the extent of energy actually consumed by it. On this ground a writ has been prayed for quashing electricity bills given by the Board based on minimum monthly charges, with direction to the respondents officers to revise the said bills on the basis of actual consumption of electricity.

(6.) It was also contended by the petitioner that on account of power-cuts, the petitioner was prevented from maintaining the prescribed monthly power factor. The Board sought to levy additional charges from the petitioner on account of low power factor totalling Rs. 3,31,213.60 p. for the period August, 199 1/12/1991, as detailed in paragraph 14 of the petition. The petitioner prayed for quashing of the said demand on account of low power factor. The petitioner also felt aggrieved by conditions of security deposit and sought relief even on that count. It may at once be stated here that learned counsel for the petitioner during the course of arguments before this Court stated that the petitioners plea based on unreasonable demand on account of low power factor required investigation of facts, which was not possible in these proceedings. Hence the learned counsel sought liberty to take recourse to such remedy as may be available to the petitioner under law with respect to its case based on unreasonable demand for low power factor. We see no good reason to refuse such a request and give the desired liberty. As regards the relief with respect to conditions of security deposit, learned counsel for the petitioner stated that he does not seek any relief from this Court in that regard, but seeks liberty from this Court to make a representation to the Board. We give liberty to the petitioner to make such a representation. In these circumstances, this petition is limited only to the matter touching minimum monthly charges.

(7.) The defence of the Board in its return is that power-cuts were done under valid Electricity Supply and Consumption Regulation Orders of the State Government issued under S. 22-B of the Electricity Act, 1910. The petitioner as per Clause 12(b) of the Agreement (Annexure-A) had agreed to the supply of electricity being curtailed, staggered or cutoff altogether by the Board, if the power position warranted such a course of action. Hence the petitioner was not entitled to complain and claim reduction in the amounts of electricity bills on the ground of power cuts, which were all legal and valid. It was specifically pleaded in paragraphs 9 and 11 of the return by the Board that the petitioner having contract demand of 3,500 K.V.A. at 0.85 power factor could consume 2875 units per hour; and in that entire month a total of 5,25,000 units, required for reaching the level of minimum monthly charges. In other words, the petitioner could consume the electrical energy to the level of monthly minimum charges, if it had run the Plant even for eight hours daily at full load of the contract demand of 3,500 K.V.A. as per the agreement. The petitioners statement in Annexure-E would show that power-cut on any single day did not usually exceed 7 hours. In other words, electrical energy on full load was available to the petitioner between 16 to 18 hours daily and the petitioner could have easily consumed electrical energy to the level of minimum monthly charges. If the petitioner was even then not able to consume electricity to the level of minimum charges, that was not on account of petitioner having been prevented from using energy but was on account of the petitioner not being able to run its plant to full capacity. There was therefore absolutely no case for reduction of the charges below the monthly minimum charges. The monthly minimum charges were moreover related to contract demand and the same having been not curtailed, there was no case for reduction of the charges. The monthly minimum charges were payable whether there was any consumption of electrical energy or not and hence the petitioner was not entitled to claim reduction merely on the ground that the consumption of the energy by the petitioner was below the level of minimum monthly charges.

(8.) We cannot overlook one broad fact of this case. The Board made a clear and categorical assertion in paragraphs 9 and 11 of its return that the petitioner having a contract demand of 3,500 K.V.A. could have consumed at 0.85 power factor 2875 units per hour. At this rate the petitioner could have consumed the requisite 5,25,000 units of electricity, to come to the level of minimum charges by running the Plant for a total of 180 hours during the entire month. The petitioner did not choose to controvert this fact by filing any rejoinder/affidavit or by giving any material indicating that the said fact was inaccurate. If that fact is accepted as true, as it should, there is no getting away from holding that despite the alleged power-cuts, usually not exceeding 7 hours a day, with 16 to 18 hours always available to the petitioner to consume electrical energy, the petitioner could have easily consumed electrical energy to the level of minimum charges during each month. If the petitioner even then was not able to utilise electrical energy to the level of minimum charges, that was not because it was prevented from using electrical energy but because it was not able to run the Plant to its full capacity or because the Plant remained idle for some time. The entire thrust of the petitioners case that it was prevented from using electrical energy and so, could not consume to the level of minimum charges, is belied and falls to the ground. On this short ground, the petitioner deserves to be given no relief.

(9.) We have however heard the parties on the question whether under the terms of the Agreement, Annexure-A, the petitioner, in the facts and circumstances of the case, was entitled to any reduction of the charges below the monthly minimum charges for the reason that there were power cuts and electricity supply to the petitioner for that reason was not continuous and uninterrupted.

(10.) It is well to notice at the outset that the Board has power to fix tariffs for supply of electrical energy, both under Statute as well as contract. S. 49 of the Electricity (Supply) Act 1948 provides that subject to the provisions of that Act and of Regulations, if any made in that behalf, the Board may supply electricity to any person, not being a licensee, upon such terms and conditions as the Board thinks fit, and may for the purposes of such supply frame uniform tariffs. Clause 19 of the Agreement (Annexure A) in the present case also gave such power to fix tariff. It reads as under :-

"19. The Consumer shall pay to the Board every month, charges for the electrical energy supplied to the consumer during the preceding month at the Boards tariff applicable to the class of service and in force from time to time...................."

A copy of the then current H. T. tariff as applicable to the petitioner was set out in the Schedule and attached to the agreement.

(11.) The monthly minimum charge for Mini Steel Plants was prescribed in the tariff dated 1/12/1988 and read as below :

"Tariff for Mini Steel Plants Tariff minimum. The tariff is subject to a minimum monthly consumption of 100 units per K.V.A. of the contract demand, whether energy is consumed or not."

It is an admitted position that a new tariff came into force from 1-9-1991 according to which minimum monthly consumption for Mini Steel Plants was raised to 150 units per K.V.A. of the contract demand, whether energy was consumed or not.

(12.) It is well to notice here the concept of minimum charges. The idea behind imposition of minimum charges is to ensure for the producer of electrical energy, a fair return on his capital out-lay. The minimum charge is intended to compensate the supplier for keeping in a state of readiness the generating capacity and facilities for supplying electricity . The Supreme Court has held that the Clause with regard to minimum charges cannot be said to be unreasonable "inasmuch as the supply of electricity to a consumer involves incurring of overhead installation expenses by the Board which do not vary with the quantity of electricity consumed and the installation has to be continued irrespective of whether the energy is consumed or not."

(13.) For his case that the petitioner was entitled to reduction in electrical charges below the minimum monthly charges, learned counsel for the petitioner relied on Clauses 11 and 23 of the Agreement (Annexure-A). Learned counsel for the respondent Board on the other hand relied on Clause 12 thereof to contend that the petitioner was not entitled to claim reduction of charges below the monthly minimum charges. All these clauses may be set out below :-

"11. Save as provided herein, the supply shall be available continuously except in cases of lockout or a strike by the employees of the Board, breakdown of machinery or plant, force majeure or any cause over which the Board has no control and in any such case the Board shall not be responsible for any discontinuance of the energy but shall recommence the supply as soon as it reasonably can. "12(a). The Consumer agrees to restrict or regulate consumption of electrical energy supplied to him under this Agreement during peak hours as may be directed by the Chief Engineer of the Board in writing and at any other hours if so required to do, if any power position or any other emergency in the power system warrants such a course of action. (b) The Consumer agrees to the supply of electricity under this Agreement being curtailed, staggered or cut-off altogether by the Board, if the power position or any other emergency in the power system warrants such a course action."

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23.(a) If at any time the Consumer is prevented from receiving or using the electrical energy supplied under this Agreement either in whole or in part through lock-out, strike, riot, insurrection, command of civil or military authority, fire, explosion, act of God, other unavoidable cause or natural calamity (hereinafter called the "breakdown"), then and in any such case, the Consumer on giving notice in writing to the Board of such breakdown shall not be required to pay for a greater supply of electrical energy under this Agreement than the consumer may require (hereinafter referred to as the "reduced supply") during such time as the said work and premises may be wholly or partially unfit for occupation or use. Provided nevertheless on the expiration of period of Agreement referred to in Clause 28 hereof this Agreement shall continue to remain in force for a further period equal in length to the period during which the "reduced supply" under this clause shall have continued and provided also that the Consumer shall pay for the said reduced supply at such rate as under the Boards tariff for the area for the time being in force the Consumer shall elect to be charged. (b) If at any time during the continuance of this Agreement, due to the said breakdown, the Board is prevented from supplying the electrical energy herein contracted, the Board on giving notice in writing to the consumer of such breakdown shall be under an obligation to give supply for electrical energy during such time as the Board may be prevented from giving supply by reason of the said breakdown. But in such event the Consumer shall not be liable to pay for any energy not actually supplied by the Board nor shall the period of discontinuance be added to the said period of the Agreement. Provided that the Consumer shall pay for any reduced supply which the Board may supply to the Consumer for the time being in lieu of the demand under this Agreement at the such rate as under the Boards tariff for the time being in force the Consumer shall elect to be charged."

(14.) It will be seen that it is the obligation of the Board under Clause 11 to make the supply of electrical energy available continuously. This obligation of the Board is however not absolute and certain causes have been given in Clause 11 itself under which the Board is not responsible for discontinuance of energy but it has to recommence the supply as soon as it reasonably can. One of the causes excusing the Board from making available electrical energy continuously is "any cause over which the Board has no control". It is the contention of the Board that it had to resort to power cuts complained of by the petitioner under a valid and legal Order passed by the State Government called M.P. Electricity Supply and Consumption Regulation Order, 1987 framed under S. 22-B of the Electricity Act, 1910. The Board was legally obliged to obey the said Order and in doing so there was" a cause over which the Board had no control" within the meaning of Clause 11. The petitioner contested this position and contended that although the petitioners Plant, connected to power supply after 20-8-1985, was exempted under the said Order from power cuts at least for a period of 24 months from its inception, which period is yet to expire, the Board illegally resorted to power cuts in the case of the petitioners Mini Steel Plant and therefore the Board was not protected by any of the exceptions given in Clause 11.

(15.) It may be stated here that in the year 1987, the State Government issued an Order under S. 22-B of the Electricity Act, 1910, called the Madhya Pradesh Electricity Supply and Consumption Regulation Order 1987. That Order was amended by Notification issued on 19/02/1991. It is not necessary to set out the whole of the original order of the year 1987 and its amendment of the year 1991. Clauses (3) and (6) of the Original Order remained unamended and they are only relevant and may be set below :

"Notification No. 4096-F. 7-I-XIII-86 dated the 21/08/1987. 1. (1) This order may be called the Madhya Pradesh Electricity Supply and Consumption Regulation Order, 1987. ... ... (3) No restriction on demand shall be applicable to the consumers other than the consumers mentioned in sub-clauses (1) and (2) to whom power supply has been connected after 20-8-1985, for a period of first twenty four months or such period as may be allowed by the Board.

(Emphasis supplied.) ... ... ... .. ... (6) The consumers availing supply for Mini Plants covered in Schedule B shall not use electricity except for essential purposes such as lighting purposes and fire-fighting equipments etc. during the period from 1600 hours to 2200 hours each day and during such hours as may be required by the Board." The word "demand" in Clause (3) above is important. The demand for instance in the present case looking to the agreement (Annexure-A) was for 3500 K.V.A. In view of this clause, as the petitioners Mini Steel Plant was connected to power supply on 22/08/1991, i.e. after 20-8-1985, there could be no restriction on its demand for electricity of 3500 K.V.A. for 24 months from the date of its inception, that is, up to 21st of August, 1993. It is not a disputed position that despite power-cuts applied by the Board during certain hours, the demand of the petitioner of 3500 K.V.A. was not in any manner restricted or curtailed. The Board continued to supply electrical energy to the petitioner for a load of 3500 K.V.A. There was therefore no restriction on the petitioners demand. It was wrong on the part of the petitioner to contend that power cuts, applied during certain hours, by the Board had the effect of restricting the petitioners demand. The meaning of Clause (6) gets more clear in this context. Under that clause restriction was placed on electrical supply to Mini Steel Plants during certain hours. It was under that Clause that the Board applied power cuts complained of and detailed in Annexure-E to the petition, which were confined to certain hours only. In a word, the complained of power-cuts placed no restriction on the petitioners demand and were confined to certain hours only. They were absolutely legal and the Board was bound to comply with those orders. The power-cuts were for a cause "over which the Board had no control" within the meaning of Clause 11.

(16.) A perusal of Clause 23 of the Agreement (set out above) will show that it is in two parts. The first part is Clause (a), when a Consumer on account of certain causes is prevented from receiving or using electrical energy. The second part is clause (b), when the Board for those very causes is prevented from supplying the electrical energy contracted in the agreement. The causes are "lock-out, strike, riot, insurrection, command of civil or military authorities, fire, explosion, act of God, other unavoidable cause or natural calamity". All these causes are compendiously described as "breakdown". Clause (a) provides that the Consumer on giving notice in writing to the Board of the Breakdown shall not be required to pay for a greater supply of electrical energy under the agreement than the consumer may require during such time as his work and premises may be wholly or partially unfit for occupation or use. The electrical energy which the consumer during this period may require is called "the reduced supply". It is further stipulated that the consumer has to pay for the reduced supply at such rate as under the Boards tariff for the area for the time being in force the consumer shall elect to be charged. Clause (b) provides that in identical causes called "breakdown" the Board may give notice in writing to the consumer of the breakdown and in that situation, the Board shall be under no obligation to give supply of electrical energy during such time as the Board may be prevented from giving supply by reason of the said breakdown. It is also stipulated that in that event the consumer shall not be liable to pay for any energy not actually supplied by the Board.

(17.) It will be seen that for the applicability of both the Clauses (a) or (b) there should have taken place some such phenomenon as to come within the description of "breakdown" rendering the work and premises wholly or partially unfit for occupation or use. If a consumer can have work or premises which might be rendered wholly or partially unfit for occupation or use by occurrence of some circumstances, so can the Board have work or its premises rendered wholly or partially unfit for occupation or use by occurrence of those very circumstances. It is wrong to give one meaning while interpreting the causes grouped under the heading "breakdown" when considering the case of a consumer, and different meaning to those very words, when considering the case of the Board. In the case of both, they must be causes which can fall under the heading "breakdown". The words "other unavoidable cause" while listing different causes in clause (a), is, no doubt, a wide expression, which considered out of context, may take within it even the phenomenon of statutory power-cuts. But the words, "other unavoidable cause" do certainly take colour from the causes preceding them and the one following, namely, "natural calamity" and also from the genus "breakdown". So read, the words, "other unavoidable cause" must be limited to causes resulting in breakdown and cannot cover the case where the Board applies power-cuts in compliance of statutory orders. Clause 23 of the Agreement (Annexure-A) in the circumstances is not attracted to the present case where there was interruption in the supply of electrical energy due to statutory power cuts.

(18.) Power cuts have been specially provided in Clause 12 of the Agreement. A consumer under Clause (a) thereof agrees to restrict or regulate his consumption of electrical energy during peak hours as may be directed by the Chief Engineer of the Board in writing and also during other hours if required to do so, if power position or any other emergency in the power system warrants such a course of action. A consumer under Clause (b) thereof further agrees to his electricity supply curtailed, staggered, or cut off altogether by the Board, if the power position or any other emergency in the power system warrants such a course of action. The petitioner cannot justly complain about power cuts applied to it, in view of this clause 12. For that reason, it cannot also contend that it may be required to pay lesser than minimum monthly charges, which it stipulated to pay whether it consumed electricity or not. This Clause 12 is the most important Clause in the agreement which negatives the petitioners claim for reduced charges.

(19.) Before closing discussion on the subject, it is proper to make a brief reference to cases cited from both the sides. Learned counsel for the petitioner sought to seek the aid of a Supreme Court decision in Northern India Iron and Steel Co. v. State of Haryana in AIR 1976 SC 1100 [LQ/SC/1975/440 ;] . That was a case in which State Electricity Board of Haryana was unable to supply electrical energy as per the demand of the consumer according to the contract due to power cut. The Supreme Court held that the consumer was entitled to proportionate reduction in the monthly demand charge. That case turned on Clause 4(f) of the agreement in that case, which ran as follows :-

"(f) Force Majeure : In the event of lockout, fire or any other circumstances considered by the supplier to be beyond the control of the consumer, the consumer shall be entitled to a proportionate reduction of demand charges/minimum charges provided he serves at least 3 days notice on the supplier for shut down of not less than 15 days duration."

It was held by the Supreme Court that the inability of the Board to supply electric energy due to power cut or any other circumstance beyond its control, could be considered as a circumstance beyond the control of the consumer, which prevented the consumer from consuming electricity as per the contract and therefore in terms of Clause 4(f) the consumer was entitled to proportionate reduction in the monthly demand charges. There is no clause akin to the abovesaid clause 4(f) in the agreement. Annexure-A, governing the parties of the present case. Clause 23 of the agreement, Annexure-A, cannot be said to be akin to Clause 4(f). Clause 23 deals with causes which, as already explained, fall within the general description of "breakdown" rendering the work and the premises wholly or partially unfit for occupation or use. No doubt, lockout and fire are the two causes commonly mentioned in clause 4(f) as also in clause 23. But the similarity between the two clauses ends there and extends no further. As already explained, Clause 23, providing for reduction of charges, does not deal with power cuts. It is Clause 12 which provides for power-cuts; but it does not provide for reduction of charges. The decision of the Supreme Court in the case of Northern India (supra) is in the circumstances rendered inapplicable to the present case.

(20.) Another Supreme Court case relied on by learned counsel for the petitioner was Bihar State Electricity Board v. M/s. Dhanawat Rice and Oil Mills reported in AIR 1989 SC 1030 [LQ/SC/1989/24] . That was also a case where the Electricity Board failed to supply constant electrical energy due to tripping, load shedding and power cut. There was Clause 13 in the agreement which was similar to Clause 4(f) contained in the case of Northern India (supra), except that Clause 13 was more elaborately worded and spoke of "any other cause reasonably beyond control", among other causes, not only of the consumer but also of the Board. It specifically listed fire and strike (in place of lockout) and listed more specific causes as riots, floods, explosions and act of God. That clause may be reproduced here :

"If at any time the consumer is prevented from receiving or using the electrical energy to be supplied under this agreement either in whole or in part due to strikes, riots, fire, floods, explosions, 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 clauses 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."

Turning on the above Clause, the Supreme Court held that the consumer was entitled to proportionate reduction in the annual minimum guarantee charges. This decision is inapplicable to the present case for the same reason for which the first Supreme Court decision in the case of Northern India is inapplicable.

(21.) Another decision relied upon on behalf of the petitioner was Kap Steel Ltd. v. Karnataka Electricity Board, AIR 1991 Kant 220 [LQ/KarHC/1990/588] . In that case, it was held that commitment charges deserved to be proportionately reduced as the power cut had the effect of reducing the contracted demand. In the present case there was no reduction, as has already been explained, in the contract demand of the petitioner as a result of the power-cut. The above decision is therefore inapplicable. The other cases relied upon by the petitioner need not be referred to for they do not touch upon the controversy involved in the present case.

(22.) On the other hand, certain decisions were relied upon by learned counsel for the Board which support our conclusion that the petitioner is not entitled to any kind of reduction in the minimum monthly charges despite interruption in the supply of electricity to him due to power cuts, in the context of the terms of the agreement entered into between the parties. Those decisions are Mukund Iron and Steel Works Ltd. v. M.S.E. Board (AIR 1982 Bom 580 [LQ/BomHC/1982/358] ) and Grindwell Norton Ltd. v. A. P. S. E. Board, Hyderabad, AIR 1989 AP 14 [LQ/APHC/1987/69] . In both these cases the consumer was held liable to pay minimum charges despite power cuts. Clause 41 of the agreement in the Andhra Pradesh case was exactly similar to Clause 12 of the agreement, Annexure-A, of the present case. The Andhra Pradesh High Court held that the principle of the Supreme Court decision in Northern India (supra) was inapplicable because there was no clause like Clause 4(f), considered by the Supreme Court in the case of Northern India (supra). The same is the case here also. As already pointed out, there is no clause in agreement, Annexure A, similar to Clause 4(f) considered by the Supreme Court in the case of Northern India. On the other hand, there is Clause 12(b) in the agreement, Annexure-A, which expressly negatives consumers claim for reduced charges.

(23.) For the foregoing reasons, we find no merit in the petitioners case claiming reduction of electricity charges below the monthly minimum charges. The petition is accordingly dismissed. Outstanding amount of security, if any, shall be refunded to the petitioner. Petition dismissed.