S.B. SANYAL, J.

(1.) In this writ petition, relief sought, is for quashing an electric bill issued by the State Electricity Board (hereinafter to be referred to as the Board) dated 25-5-78 which has been marked Annex. 14 as well as refusal to extend the incentive scheme formulated by the State Government in favour of registered small scale industries in the matter of consumption of electrical energy. The said letter of refusal is dated 24-5-1978 and marked Annexure 16. The petitioners further pray for a direction to restore electrical connection, which has been snapped for not surrendering to the illegal demands raised, from time to time by the Board its agents and employees.

(2.) The error of the dispute in the instant case is twofold. The applicability of the incentive scheme of the Government of Bihar bearing No. 16808 dated 29-9-1973, by which registered small scale industries of the State of Bihar were exempted from the payment of actual minimum guarantee charges for a period of five years from the date of its production, as well as grant of subsidy of 9 paisa per unit over the electrical energy consumed Connected with this is the effect of amendment of the said scheme by Government notification D-/-19-5-1976, restricting the exemption of annual minimum guarantee charges to a sum of Rs. 1000/- only per year and different mode envisaged to enjoy the amended benefit. The other question of importance is, in absence of electrical connection whether an industry is at all liable to any annual minimum guarantee charges for the disconnected period.

(3.) The petitioners are partners of M/s. Alakha Rubber Industry, a factory set up at Jamira, Bhojpur, few production of rubber, tyres, tubes etc. in the small scale sector. It started production on 12-8-1974 and obtained registration from Industries Department as a small scale industry on 30-10-1975, a photostat copy of the registration certificate has been marked. Annexure 22. Board was intimated about it by the petitioner on 13-11-1975 (Annexure-11). The respondent, Electrical Executive Engineer, while acknowledging the said letter, enquired about the registration number from the petitioner on 22-12-1975 (Annexure-12) in order to enable him to extend the facility of incentive scheme of the State Government to registered small scale industry.

(4.) Oh 12-8-1974 (Annexure-B) the petitioners entered into an agreement with the Board for supply of electrical energy. The agreement shows that the contract demand was fixed at 100 KVA and the annual minimum, guarantee charges under Clause 4 (a) of the agreement was fixed at Rs. 14,892/-. The tariff was fixed under symbol H. T. G. I. The petitioners deposited a sum of Rs. 6,000/- by way of security money.

(5.) The factory of the petitioners along with its raw materials and finished pro-ducts was washed away by the devastating flood of August, 1975 and, therefore, on 15-9-1975 the petitioners asked the respondent, Electrical Executive Engineer by a letter Annexure 1 to disconnect the line in carder to avoid further financial burden, which was received in the office of the Executive Engineer on the same date. The industry was greatly effected by the flood is borne out by the inspection note of Deputy Director of Industry dated 6-10-1975 vide Annexure 3 as well as by the note of Project Executive Officer, Rural Development dated 9-11-1976, vide Annexure 4.

(6.) On 6-9-1975, respondent Electrical Executive Engineer, asked the petitioners that up-to-date bill of the industry amounts to Rs. 51,789 and odd and after adjustment of the security deposit the same should be paid. Electrical line was, however, disconnected, on 16- 10-1975. According to petitioners the said disconnection was at their request, whereas the Board contends that it as at their instance, for non-payment of arrears bill. The bills, however, went on rising deposit disconnection since on 24-4-1977, the bill stood at Rs. 92,213/-. It may be here mentioned that on 21-9-1976, the respondent-Industrial Development Commissioner wrote to Board vide Annexure 5, that rising of the bill does not seem to be reasonable; the industry is closed because of unprecedented flood and serious efforts are being made to recommission the flood damaged unit. It also stated for consideration of its representation sympathetically. On 24-5-1977 the respondent Electrical Executive Engineer wrote to petitioners vide Annexure 6. that its case is being considered under 13 of the agreement for remission and demanded that reconnection is only possible if the industry agrees to execute a fresh agreement and make a deposit of security of Rs. 11,950/-.

(7.) On 15-6-1977, the electrical connection was restored on petitioners executing a fresh agreement dated 30-5-1977 (Annexure-E) and on making a fresh security deposit of Rs. 11,950/-.

(8.) On 20-6-1977, a fresh representation was filed by the petitioners (Annexure-13) to the department of Industry, invoking Governments resolution of incentive in power supply as per resolution of 16808 dated 29-9-1973 (Annexure 21) and further requesting the authority to take up the matter with Board and ad-just the incentive towards the pending bills of the Board and in future the Board be directed to send bills covered by, the incentive scheme direct to Industries Department with information to the petitioners. On 9-11-1977, 23-11-1977 and 4-3-1978 vide Annexures 7, 8 and 9 the petitioners, were informed by the Board, that they have been allowed remission of annual minimum guarantee charges under Clause 13 of the agreement for the financial year 1975-76 and the claims for remission of annual minimum guarantee charges for the year 1974-75 and 1976-77 have been disallowed. The bill after adjustment stands at Rs. 59,369.15 paise which should be paid, failing which restored, line will be again disconnected. It is said that representation by the petitioners to Board and the Industries Department, all went in vain.

(9.) On 19-4-1978, the line was again disconnected. The respondent-Electrical Executive Engineer wrote to the petitioners on 23-5-1978 (vide Annexure-16), that the incentive scheme cannot be extended to it, as the name of the industry does not find, mention in the list of registered small scale industries. On 25-5-1978, the petitioners were served with a bill of Rs. 1,06,795/- as the dues mainly for annual minimum guarantee charges for the entire period minus the remission granted for the year 1975-76. It may be stated here that respondent No. 5, the Joint Director of Industries Department by his letter dated 18-5-1978 (vide Annexure-10) strongly voiced the arbitrary action in disconnecting the electrical line by the Board and he further protested that in view of closure of the industry, there is no question of payment of annual minimum guarantee charges for the said period. All efforts thereafter having failed to implement the incentive scheme and to get restoration of electrical energy, the petitioners have moved this Court for the relief already indicated above.

(10.) Four counter affidavits have been filed oh behalf of the Board. The Board disputes the fact that original disconnection on 16-10-1975 was effected at the instance of the petitioners." On the contrary, it was at the instance of the Board for non-payment of electric bill. Further the petitioners are not entitled to incentive scheme as its name was not to be found in the list of registered small scale industries. Further the industry having stopped production it is not entitled to the said scheme of incentive. It is also submitted that incentive scheme by the Government not being a direction under Section 78-A of the Electricity. Supply Act 1948, the Board can ignore it. Further contention is that in any view of the matter incentive scheme of 29-9-1973 has been amended by the notification of 29-5-1976 (Annexure-M), therefore, the petitioners are only entitled to the benefit "of a maximum of Rs. 100/- towards annual minimum guarantee charges per year. In short, the petitioners are not entitled to the holiday of 5 years with respect to the payment of annual minimum guarantee charges from the date of its production i.e. 12-8-1974 till . 12-8-1979, as claimed, for restoration of electric connection.

(11.) I would like first to dispose of the preliminary objection taken by Mr. Parmeshwar Prasad Sinha to the maintainability of the writ petition. He submits that the petitioner instituted a Title Suit No. 24 of 1978 for similar relief and in the said suit the petitioner was required to pay ad valorem court fee, which was not paid. Thereafter, on 28-8-1978, the suit was withdrawn, without leave to institute a fresh suit. The learned counsel, therefore, contends that the writ petition is barred by general principles of res judicata, as well as on the principle of Order 23, Rule 1 of the Civil P. C. and relies upon a decision in the ease of Ram Kisan v. State of Haryana, (AIR 1969 Punj and Har 104). For the reasons hereunder, I am unable to accept the said contention of the learned counsel. The Civil P. C. has no application to a writ proceeding as would be evident from the the explanation to Section 141 of the Civil P. C. It is true that the Courts in India have held that in the public interest even in a writ proceeding, an individual should not be vexed twice over with the same kind of litigation. The courts, however, have not extended the said principle where the order is a non-speaking one and a writ petition has not been considered on merits as a contested matter. (See Daryao v. State of U. P. AIR 1961 SC 1457 [LQ/SC/1961/141] ; Tilokchand Motichand v. H. B. Munshi, AIR 1970 SC 898 [LQ/SC/1968/360] ; Hoshnak Singh v. Union of India, AIR 1979 SC 1328 [LQ/SC/1979/157] ). A Bench of this Court in Nirod Baran Banerjee v. State of Bihar (AIR 1981 Pat 96 [LQ/PatHC/1980/80] ) has held that mere withdrawal of a writ petition does not constitute bar to the maintainability of a second writ petition. The decision relied upon by he learned counsel in the case of Ram Kisan (supra) is prior to the incorporation of the explanation to Section 141 of the Civil P. C. by the amending Act of 1976. With great respect, I am unable to agree with the views expressed in the case of Ram Kisan (supra) in view of the latest view of the Supreme Court and this Court as well as the amendment brought about in the Civil P. C. I. therefore, hold that the writ petition is maintainable.

(12.) The next contention of the learned counsel for the petitioners is that they enjoyed five years holiday from the pay-merit of annual minimum guarantee charges, in view of circular No. 16808 dated 29th September, 1973 which is marked Annexure 21. It is submitted that the petitioners having commenced production on 12-8-1974 there is no liability at all to pay annual minimum guarantee charges till up to 12-8-1979. It is said that this decision of the Government is under Section 78-A of the Electricity Supply Act, 1948 which is manifest from the letter of the Board dated, 10-4-1973, marked Annexure 17.

(13.) From the reading of Annexure 21, it appears that the State Government for the purpose of economic growth and social justice, thought of giving topmost priority to the development of small scale industry. It provided for various incentives. One of the incentives is in regard to supply of electrical energy. Clause 6 (a), (b) and (c) of the said scheme, reads as follows:-- "6. (a) No minimum fixed charge will be levied by Electric Undertakings under the control, of State Government for five years from the date of production. (b) Small Scale Units will be given subsidy of 9 paise per unit over the electrical energy actually consumed. Electricity Board/Supply Companies will prepare bills of consumers after deducting the amount available as subsidy. (c) This facility will be available to both old as well as new units. New Units will avail this facility from the 2nd, October, 1973. Rebate will be allowed to both old and new units from 1st March, 1974. The new units going into production on 2nd October, 1973, will be treated as New Units."

The. Board by its letter dated 10-4-1973 (Annexure-17) communicated all its Superintending Engineers that there being Government direction in this regard under Section 78- A pf the Electricity Supply Act, 1948, it should be given effect to. The communication further stressed that the annual minimum guarantee charges would be taken up by the Boards Headquarters for payment from the Industries Department. Learned counsel drew my attention to the registration certificate (Annexure-22). It appears that the industry started its production on 12% of August 1974. It was registered on 21-10-1975/31-10-1975 with the Industries Department. The registration number allotted is 031901573. By a letter dated 13-11-1975 (Annexure-11) the executive Engineer of the Board was informed about registration. On 22-12-1975 vide Annexure 12 the Executive Engineer asked the petitioners to communicate the registration number in order to enable him to obtain decision from the Board. It is asserted in paragraph 32 of the writ petition that the petitioners through several letters informed the authorities that they have been registered as small scale industry. The petitioners also communicated about its registration number to the respondent Executive Engineer. There is no denial of the aforesaid averments in the various counter affidavits filed on behalf of the Board. What has been stated in para. 11 of the counter affidavit is, since the petitioners industry was not listed as registered Small Scale Industry by the Industries Department it was not possible to give any concession or remission of minimum guarantee charges. The learned, counsel for the Board relies on the letter of the Electrical Executive Engineer dated 23-5-1973 (Annexure-16) in this connection.

(14.) After having heard the parties counsel, I think, failure of the concerned authorities to carry out their duties in accordance with law, cannot disentitle the petitioners to the admissibility of the incentive scheme, if it is otherwise applicable. At least the authorities having come to know how that the petitioners industry is a registered small scale industry, there should be no hesitation in withdrawing the demand for minimum guarantee charges and restoring the electrical connection to the industry.

(15.) The learned counsel of the Board, however, submits that:-- (i) the incentive scheme is merely the desire of the State Government and not a direction under Section 78-A of the Electricity (Supply) Act and, therefore, can be ignored; (ii) for the applicability of the incentive scheme, the industry must be in production and not a close unit; (iii) the petitioners having been registered on 31-10-1975 and the disconnection having been effected on 16-10-1975 the petitioners are not entitled to the benefit of the incentive scheme at all; (iv) In view of the amendment of the Circular of 29-9-1973, on 19-5-1976, the exemption of the annual minimum guarantee charges is only to the extent of Rs. 1000/- only per year, and the balance has to be paid by the concerned industry.

(16.) Having considered the relevant contentions of the parties, I am of the view that the circular issued by the Government on 29th September, 1973 having been treated by the Board itself vide Annexure 17 as a direction under Section 78-A of the Electricity Supply Act, the Board, under the mandate of the statute cannot ignore the said direction. It is too late in the day to contend that the Board can ignore the said circular. Further the Government having issued a notification amending the said circular on 19-5-1976 (Annexure-M), it establishes that circular dated 29-9-1973 is a direction binding on Board. Coming to the question that there having been a disconnection of the power line on 16-10-1975 prior to the registration of the industry on 31-10-1975, the petitioners would not be entitled to the benefit of the said incentive scheme, I find that on 8-12-1975 a bill was submitted to the petitioner (Annexure-20) for payment by 28-10-1975. The agreement also provides twenty days time for the payment of the bills. The disconnection however, was effected within 8 days of the date of the bill, in breach of the terms of agreement as well as the time allowed in the bill itself. Mr. Parmeshwar Prasad Sinha states that there being a prior arrear of Rs. 2574/- the Board was at liberty to disconnect the line even before the date of payment indicated in the bill of 8-10-1975. I find from the bill, however that the petitioners were asked to pay the arrears along with the current bill by 28-10-1975. The Board, therefore, having already granted time till 28-10-1975 both for current and arrear dues, it acted arbitrarily and illegally in disconnecting the line before the expiry of the time granted for the payment of the bill. It does not lie, therefore, in the mouth of the Board to urge that as the industry was not in production on the date of registration, it would not be entitled to the benefit of the scheme. The said condition was illegally brought about by the arbitrary ad of the Board. Nobody can be allowed to take advantage of its own wrong. It would be wholly unfair to deny the benefit of the incentive scheme to the petitioners which had admittedly gone into production from before the date of registration i.e. 12-8-1974.

(17.) The next important question which requires consideration is what is the effect of the Amendment of 19-5-1976, According to the learned lawyer for the petitioner, the amendment in no way affect and impair registered small scale industrial units which have gone into production prior to the said date of amendment whereas according to the learned counsel of the Board the amendment affects all and every registered small scale unit irrespective of the date of production and registration. Clauses 2 and 3 of the said amendment notification read as follows:--

"2. Uparyukta tathya ke alok men sar-kar ne protsahan sankalp sankhya 16808, dinank 29 September, 1973 men yeh sanshodhan karne ka nirnay liya hai ki laghu udyog ikaiyon ko nyuntam guarantee charge se bimukti ki subidha ki seema nirdharit ki jaye. Tadnusar ek ekai ko ek barsh men bimukti ki adhik-tam seema ek hazar rupaya nirdharit ki jati hai. Is adhiktam seema se adhik rashi ka bhugtan ikaiko swaem karni hogi. 3. Yeh adesh 1 April, 1976 se lagu hoga."

(18.) It is evident that notification is silent about the reliefs and remedies with respect to industries installed prior to the coming into force of the amendment. The amending notification is brought into force from 1-4-1976. It is well known that "Prima facie an act deals with future and not with past events" (See Ward v. British Oak Insurance Co., (1932) 1 KB 392 at p. 397). It is established principle of law that when a statute takes away or impair an existing right acquired under the existing law it is said to be retrospective statute. The presumption, however, is against the said intention. A law is said to be not retrospective, when right or liability arising out of jural relation constituted before the new law came into force or created by a jural fact or event taking place before the new Jaw, or any relief or remedy in respect of that right or lability remains unaffected by the new Law, I do no better, than to quote the observation of Wright, J., in the case of In re: Athlumney; Ex Parte Wilson (1893) (2) Q. B. 547 at pp. 551-552) :

"Perhaps no rule of construction is mere firmly established than this -- that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only."

Lord Hatherly in a case decided by House of Lords, observed. "The general rule which Lord Cranworth lays down, that portions of a statute which are silent in that regard, are to be taken prima facie as clearly indicating prospective intention, and prospective intention only, acting from the time, the comes into operation, which in the statute precisely fixed by a clause, for it is said to be the 1st October, 1874" (See James Gardner v. Edward Alucas 1873 AC 582 at p. 598). When the amending Act seeks to avoid anterior transaction, in the words of Harris, C. J. (H. P. Banerji v. Commr. of Income Tax, AIR 1941 Pat 59 (SB)): "then it is necessary to have clear words in the statute if transactions entered before the are to be affected. Where, however, an amendment does not avoid the transaction in any way, there is no need of any such provision." It is further an established principle. "the rights cannot be taken away or restricted by implication" (Raghubir Dayal, J., in the case of N. C. Agarwal v. Krishan Lal, AIR 1961 All 104 [LQ/AllHC/1960/136] (FB)). I am not oblivious that when a statute is passed for the purpose of protecting the public against some evil or abuse, keeping in view the dominant object of the statute, departure from general rule of construction of statute have sometimes been made. This was so done with respect to Banking Companies (Amendment) Act, 1953 this amendment was brought for the enforcement of claims of the bank in liquidation, for collection to more money from the debtors for payment to depositors. This was in order to secure the interest of depositors from the hands of mushroom growth of banks in late forties, which were in contract of persons not very scrupulous or competent. (See Sree Bank Ltd v. Sarkar Dutt Roy and Co., AIR 1966 SC 1953 [LQ/SC/1965/130] ).

(19.) Keeping in view the tests laid down by the aforesaid cases, let us have a close look to the amending notification. The preamble of the notification, states that facilities extended with respect to minimum guarantee charges under the old scheme did not work satisfactorily as it was found that the old industrial units without proper thought, used to get higher electrical loads sanctioned in excess of their real requirement and the State Government unnecessarily had to pay the entire sum under the old resolution. This is causing difficulties to new units in obtaining electrical connection. It was, therefore, decided to restrict the Government subsidy in respect of minimum guarantee charges to the maximum extent of Rupees 1000/- only per year. The. amending notification by a separate clause is made operative from 1-4-1976. I am unable to discern any retrospective intention, without doing violence to the language" of the notification. The preamblesimply sets out the reasons for the amendment. The notification even remotely does not purport to impair existing right and obligation. It does not seek to avoid closed transaction. My attention has been drawn by the learned counsel of the Board, to an unreported, decision of this Court C. W. J. C. 2338 of 1976 decided on 21-7-1977 (Kosi Steel Industries v. Bihar State Electricity Board) in support of his contention. The unreported case is an authority on promissory estoppel. It was held in the facts and circumstances of the said case principle/of promissory estoppel is not applicable. The other points raised as to the vires of the notification, lack of power were also negatived. The points raised before me do not seem to have either been specifically urged or considered by their Lordships. The unreported decision, therefore, is of no help to the learned counsel of the respondents. I, therefore, conclude that the petitioner is entitled, to the enjoyment of complete exemption from the payment of annual minimum guarantee charges from 12-8-1974, the date of, its production till 12-8-1-979, completion of the term of 5 years. The amending notification of 1976 does not at all affect the petitioners. The amending notification is prospective in operation.

(20.) This takes me to the question whether the petitioners are liable to pay annual minimum guarantee charges after 12-8-1979, for restoration of electrical connection. It may be remembered that the petitioners electrical line was snapped on 16-10-1975. It was restored on execution of fresh agreement 6n 30-5-1977. It was again disconnected on 19-4-1978 and there has been no reconnection till date. The question that falls for consideration, therefore, is whether the petitioners are liable, to pay annual minimum guarantee charges during the period of non-supply of electrical energy.

(21.) To appreciate the point in issue, the Tariff system of the Board has to be first understood. The Board in exercise of the powers conferred under Section 49 of the Electricity (Supply) Act, 1948 is empowered to make regulations as well as frame uniform charges for the supply of electrical energy to persons other than licensee. In exercise of the said power the Board has framed tariff subject to revision from time to time. Before the constitution of Board, the Government of Bihar in the Department of Electricity, by notification of 16th of November, 1954 laid down terms and conditions for the supply of electrical energy by the Government Electricity Department. The said notification provided certain tariffs as well as forms of agreement which a consumer is required to execute. The terms and conditions of the 1954 notification have been adopted by the Board in the tariff. The tariff of the Board is two-part tariff system. (i) Demand charge (ii) Energy charge. Demand charge is based on contract demand, i.e., maximum Kilo Volts Amperes required by consumer. The demand charge is measured by maximum demand indicator. The same is payable at a particular rate provided in the tariff. It is based on the actual maximum demand of that month or 75 per cent of the contract demand whichever is higher. Demand charge is usually imposed on big consumer to cover investment, installation and standing charges to some extent. So far as the energy charge is concerned it is actual energy consumed to be paid at a particular rate. Annual minimum guarantee charge is a species of energy charge. Annual minimum guarantee charge, means that a consumer is supposed to consume a minimum of units per year of the energy supplied and even if the person fails to consume the said minimum units in spite of the energy supplied, he has to pay as per the tariff of energy charges. If, however, a person consumes the said minimum units every year question of paying annual minimum guarantee charges does not arise at all. It is really in the nature of deemed consumption. The annual minimum guarantee units and/or the value thereof are indicated in the schedule to the agreement. This agreement a consumer is required to execute at the time of supply of electrical energy. The "annual minimum guarantee" units are worked out on the basis of contract demand multiplied by power factor, load factor, and 24 hours constituting a day and 365 days comprising a year. The tariff provides for various categories of services and they have been assigned different symbols. Rate of demand charge and energy charge also varies for different kind of services. In the compendium of Revenue Circulars and Orders of Bihar State Electricity Board, 1962-74 Volume-I various forms of agreement for various services is to be found. The agreement in the instant case is, in one of these forms. Clause 4 (a) of the Agreement reads " as follows:-- "The consumer shall pay to the Board for the energy so supplied and registered as aforesaid at the rate given in the schedule, provided that the minimum charges specified in the schedule appended hereto shall be paid irrespective of whether energy to that extent has been consumed or not." From the schedule of the agreement, it appears that the maximum Kilo Volts Amperes required by the consumer is 100 Kilo Volts Amperes. Annual minimum guarantee charges on the basis of the said contract demand was arrived at Rs. 14,892/- per annum at the prevailing rate of tariff. The Schedule refers to Clause 4 (a) of the agreement in this regard. Two more clauses of the said agreement are also relevant and required to be noticed. They are Clauses 8 and 9, Clause 8 speaks about ,3 years duration of the agreement at the first instance and thereafter to continue from year to year until the agreement is determined. Clause 9 contemplates that the consumer shall not be at liberty to determine the agreement before the expiration of three years, from the date of commencement of supply of energy. The consumer may determine the agreement at any time after the said period by giving 12 calendar months previous notice in writing. Upon expiration of the notice period, the agreement shall cease. It is, therefore, seen that the annual minimum guarantee charges is an essential part of the contract. Clause 4 (a), of the contract is referred to in the schedule. There are two very significant words in Clause 4 (a) of the agreement, namely, "The consumer and "energy so supplied". Therefore, to attract the liability cast under Clause 4 (a) the person liable must be and continue to be a "consumer" and the Board on their part to have "supplied energy". When the energy so supplied is not consumed, the consumer under the contract, is made liable to pay the difference. If there is no supply of energy, it means the Board, is not ready to serve the consumer and consequently consumer is prevented from consuming energy. Disconnection of energy line is outright refusal to supply energy, and the person also ceases to be a consumer of the Board. A contract is said to be broken if a party by its own act places itself in a condition which prevents it from performing the contract, when it may be called upon to do so during the tenure of the contract. The disconnection, in my opinion, brings to an end the contract so far as the annual minimum guarantee charges is concerned and both parties are discharged from further performance of the obligations contained in the contract.

(22.) Mr. Parmeshwar Prasad Sinha, learned, counsel for the respondents, however, contended that under Clauses 8 and 9 of the agreement there can never be a determination of contract before the expiry of three years and no liberty is left to the consumer under the contract to determine the agreement before the expiration of the said period; The consumer may determine the contract only after the expiration of the period of three years by giving not less than 12 calendar months notice and upon expiration of the notice period only the agreement stands determined and the parties to the contract discharged from all obligations. He has drawn my attention to the circulars dated 7-6-1971 and 16-11-1968 at pages 486 and 499 of the Compendium which are in the nature of instructions to Boards own Officers. Paragraph 8 of the circular dated 7-6-1971 reads as follows:--

"8. Before filing a suit for recovery of dues a notice should be served just after disconnection of the line, (a) requiring the disconnected consumer to pay off the dues by a specified date; (b) bringing to his notice (i) his liability, despite disconnection, for payment of M. G. charges till the date of expiry of the period of compulsorily availing of supply or the period of notice, whichever be longer."

The circular of 16-11-1966 states:-- "It, therefore, follows that M. G, and delayed payment surcharge will continue to be levied during the period of disconnection, so long as the agreement is not terminated." These circulars are for domestic consumption of the Board and for information of its Field Officers. These circulars have no statutory and binding force. These circulars are neither regulations as contemplated under Section 49 of the Electricity Supply Act nor a part of the tariff. These circulars are not referred to or adopted in the contract of supply of electric energy. The substance of the circulars are also not embodied in the agreement. These circulars, therefore, are in the nature of the stand of the Board and, therefore, is of no help to Mr. Parmeshwar Prasad Sinha, As to his contention that Clauses 8 and 9 of the Agreement fasten the liability upon a consumer for the period specified therein, I find that the said two clauses in the agreement are meant for the benefit of the Board. It is well settled that a person is entitled to abandon his right. According to the case of the Board, it was at their instance, the disconnection was effected. It is well-known, that a person, who is entitled to the benefit of a stipulation in a contract may waive it. It may, if it so chooses, also continue the contract by waiving a particular stipulation in the contract. Mr. Ramchandra Sinha, appearing for the petitioners, has placed reliance on an unreported Bench decision of this Court in the case of Prabalpur Sheet Grih Pvt. Ltd. v. Bihar State Electricity Board, First Appeal No. 604 of 1974 decided on 3rd August, 1978. In the said case, it was held, once there is a disconnection the person ceases to be a "consumer" of the Board and, therefore, Clause 4 (a) of the Agreement, under which the annual minimum guarantee charges are payable, is not attracted. It further held where disconnection of electrical energy is effected by the Board it would amount to waiver on its part of the stipulation contained in Clauses 8 and 9 of the agreement. I am also of the view that the disconnection at the instance of the Board itself amounts to renunciation of the contract and the petitioners are entitled to treat the contract as discharged. I am, therefore, of the opinion that the petitioners cannot be saddled with the liability to pay annual minimum guarantee charges for restoration of its electrical energy for the period there was no supply of electrical energy to the factory. As a corollary, after the expiration of holiday on 12-8-1979, the petitioners have no liability to pay annual minimum guarantee charges for restoration of electrical energy.

(23.) The petitioners, therefore, have no liability to pay annual minimum guarantee charges from 12-8-1974 till 12-8-1979 by virtue of incentive schemes issued under Section 78-A of the Electricity (Supply) Act, 1948 and it has further no liability to pay annual minimum guarantee charges from 12-8-1979 till date as there has been no supply of electrical energy to the factory. The petitioners, however, are liable to pay off energy charges, if any, in arrears and, therefore, the bills submitted by the Board require modification in the light of my decision. The learned Counsel for the petitioner has filed an affidavit that there is no energy charge due to the Board and the petitioner has paid sums even against A. M. G. charges when the connection was restored on 30-5-1977. The Board is, therefore, directed to supply to the petitioners fresh bill after adjustment of payments, to the petitioners within 15 days from today. If there is excess payment, the petitioners should be intimated about it and line be restored and payments made be treated as advance. If there are dues on petitioners on clearing off the dues, the electrical energy should immediately be restored.

(24.) I regret to say that the Board acted arbitrarily in disconnecting the supply line when there was a bona fide dispute as to the liability of the petitioners with respect to payment of A.M.G. charges. There is, therefore, no question of neglect to pay on the part of the petitioners, which entitled the Board to resort to Section 24 of the Indian Electricity Act, 1910 (See Hotel Satkar Pvt. Ltd. v. Bihar State Electricity Board, 1980 BBCJ (HC) 200).

(25.) I further observe that the bills submitted by the Board were composite, i.e., comprising legal and illegal charges, non-payment thereof cannot disentitle the petitioners to the rebate in making timely payment. If they fail to pay the bills, which would now" be raised, in accordance with the judgment, within the stipulated period, then only they would be disentitled to the rebate under the tariff.

(26.) In fine, the writ petition is allowed Annexures 14 and 16 are quashed. The Board is directed to restore electrical connection immediately on payment of fresh bills which would be presented by the Board to the petitioners within 15 days from today. There will, however, be no order as to costs.