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TMI Blog2009 (12) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent. JUDGMENT Amitava Lala, J. The petitioner has filed this writ petition under Article 226 of the Constitution of India praying therein as under: "( i )Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 20.4.1998 and 20.5.1998 (annexure 18 and 20 to the writ petition) passed by the respondent No. 1. ( ii )Issue a writ, order or direction in the nature of certiorari quashing the citation dated 23.7.1998 (annexure 21 to the writ petition), ( iii )Issue a writ, order or direction in the nature of mandamus restraining the respondents from recovering the amounts mentioned in the said citation and the orders dated 20.4.1998 and 20.5.1998 as arrears of land revenue. ( iv )Issue a writ, order or direction in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber, 1996, allegedly in view of the fact that the agreement for load reduction was entered into on 1 July, 1996. 3. According to the petitioner, being aggrieved by the said irrational and unreasonable stand taken by the respondents, matter was represented before the respondent No. 3 and entire history relating to the said dispute was brought to the notice of the authorities. While all this exercise was going on, and despite the fact that the representations made against notices issued to the petitioner were still pending before the said authority, the petitioner was shocked and dismayed to learn that the respondents had issued a certificate under section 5 of the U.P. Government Electrical Undertaking (Dues Recovery) Act, 1958, for recovery of Rs. 16,19,026.00 along with interest 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the sub-station and the line (not paid by the consumer) actually dismantled due to the disconnection, together with the estimated expenditure on the cartage of the salvaged materials to stores and the cast of unsalvaged materials plus 15 % supervision charges on the labour and cartage only." "( vi )If the consumer, after execution of declaration/agreement, reduces or increases his load, or changes the process or shifts his connection, he shall have to execute a fresh declaration/agreement before doing so but shall be deemed as an old registered consumer of the supplier and a clause in the fresh declaration/agreement shall also be incorporated accordingly." 7. Factually, we refer again that several agreements were entered into by or between the parties to increase the load capacity subsequent to 6 March, 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 challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position. Following the ratio of Central Inland Water Transport Corporation Lid. v Brojo Nath Ganguly [1986] 3 Comp LJ 1 (SC) again in the judgment reported in Hindustan Times and others v State of U.P. [2003] 1 SCC 591, Supreme Court held that a State cannot, in view of the equality doctrine contained in Article 14 of the Constitution of India, resort to the theory of 'take it or leave it' in a case where the State is on one side and unequal person on the other. Any unjust condition thrust upon the petitioners by the State in such matters would attract the wrath of Article 14 of the Constitution of India as also section 23 of the Indian Contract Act. 9. Mr. H.P. Dubey, learned counsel appearing for the respondents, on the other hand, firstly, cited a judgment of the Supreme Court reported in Bihar State Electricity Board, Patna 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onth after the said disconnection the consumer itself applied for permanent disconnection, the electricity Corporation or Board will be able to realize the minimum guarantee charges on the basis of fresh consumer agreement on account of reduction of load from 1 July, 1996, or on the original agreement dated 6 March, 1987. If clause ( vi ) says that a consumer is deemed to be old registered consumer of the supplier irrespective of execution of further agreement subsequent thereto in increasing or decreasing the load capacity, then the period of realisation of minimum guarantee under clause ( ii ) has to be read from the date of original agreement. Agreement for fresh load capacity cannot create a fresh period for realisation of minimum guarantee money. 12. Moreover, under section 2( c ) of the Indian Electricity Act, 1910, after disconnection of the electricity, the consumer 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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