IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 5453 of 2002 BETWEEN: Sri Kedarnath Silk Mills, Rep by its Proprietor, Mr.Shiv Kumar Agarwal S/o Kedarnath, 3-2-326, Chappal Bazar, Hyderabad-500 027. ... PETITIONER AND 1 A.P. Transco Rep by its Managing Director, Vidyut Soudha, Hyderabad. 2 Superintending Engineer, Operations A.P. Transco, R.R.Circle, Mint Compound, Hyderabad. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ of Mandamus, or any other appropriate Writ, or order, order direction declaring the action of the respondents in levying and demanding an amount of Rs.6,05,663/- for the period there was no power supply to the Petitioner Unit vide its Letter No.SE/OP/RRD/SAO/HT/D.No.1400 dt: 23.3.02 as illegal, arbitrary, and against the principles of natural justice, and consequently set aside the demand and the said impugned letter of respondents and pass such other order or orders. Counsel for the Petitioner: MR.D.V.NAGARJUNA BABU Counsel for the Respondents: O.MANOHAR REDDY (SC FOR APTRANSCO) The Court made the following: ORDER: Heard both the counsel. 2. Petitioner – Sri Kedarnath Silk Mills, is a small-scale industry situated at Plot Nos.59 and 110, Katedan IDA, Hyderabad and it had taken H.T power connection with Service Connection No.RRD-807. While so, the Andhra Pradesh Pollution Control Board (PCB) by its order dated 14.03.2001 in exercise of powers vested in it under Section 33(A) of the Water (Prevention and Control of Pollution) Amendment Act, 1988 read with Section 32(1) (C) and under Section 31(A) of the Air (Prevention and Control of Pollution) Amendment Act, 1987 ordered the petitioner-industry to stop all industrial activities with effect from the date of the said order as an emergency measure to stop the deterioration of the ground water, surface water and damage to the environment in the interest of public health and environment and also directed to take note that the A.P. Transco has been ordered to disconnect power supply to petitioner-industry with immediate effect. Pursuant to the said order of the PCB dated 14.03.2001 the power supply to the petitioner – industry was disconnected on 21.03.2001 and the same was effected under condition 42.2 of Terms and Conditions of Supply. 3. Learned counsel for the petitioner submits that there were no dues/arrears till the date of disconnection i.e. 21.03.2001 and that the PCB ordered restoration of supply of power by its order dated 05.03.2002. He further submits that pursuant to the order of the PCB for restoration of power supply the petitioner approached the second respondent for restoration of power supply but the second respondent made a demand vide impugned letter dated 22.03.2002 in Letter No.SE/OP/RRD/SAO/IIT/D.No.1400 demanding to pay the dues of minimum charges for the disconnected period from 21.03.2001 to March 2002 as the petitioner paid the amount payable for the month of April 2001 even after the disconnection. As against the said demand of Rs.6,05,663/- including the reconnection charges of Rs.300/- for restoration of power supply, petitioner filed this writ petition and obtained interim order dated 27.03.2002 for restoration of power supply subject to the condition of the petitioner paying a sum of Rs.1,00,000/- and the learned counsel submits that the said amount has been paid and the power supply was restored on 28.03.2002. 4. Learned counsel for the petitioner further submits that the petitioner-industry is not liable to pay the minimum charges for the disconnected period as disconnection of power supply was not account of non-payment of electricity charges, pilferage or other malpractices but for the order of the PCB. He further submits that if the bills are not paid for consecutive three months it is the duty of the respondents to terminate the HT agreement by giving one month notice, therefore, as the respondent-corporation failed to exercise its statutory duty and obligation under clause 26.10, for terminating the agreement immediately after the expiry of three months period of non-payment of electricity charges, the petitioner-industry is not liable to pay the minimum charges from the month of August 2001 as at best the petitioner-industry is liable to pay the minimum charges for the months of May, June, July alone, as the petitioner-industry paid the amount payable for the month of April 2001. He further submits that immediately after expiry of three months, one-month notice has to be given, therefore, at best the Department can collect four months charges from 21st April to 21st July. The closure of the petitioner-industry was not on account of lapses on the part of the petitioner but due to the reasons beyond the control of the petitioner-industry and at the instance of the closure order passed by the PCB, therefore, the collection of minimum charges for the disconnected period is illegal and arbitrary. 5. It is not in dispute that the petitioner-industry entered into HT agreement with the respondent-corporation for supply of power under clause 26.6 and it is also not in dispute that the closure order of the PCB is after the expiry of the period of two years of agreement. I am of the opinion that it is relevant to peruse the appropriate clause of terms and conditions of supply. Under clause 26.8 the consumer is at liberty to seek reduction or termination of the agreement by giving three months notice in writing expressing his intention to do so at any time after the period of two years from the date of commencement of agreement and the Board can terminate the agreement at any time by giving one week’s notice if the consumer violates the terms of the agreement or the terms and conditions of supply prescribed by the Board from time to time or the provision of any law touching the agreement including the Electricity (Supply) Act, 1948, the Indian Electricity Act, 1910 and Rules made thereunder. Under clause 26.9 on termination of agreement the consumer shall pay all sums due under the agreement as on the date of its termination. Under clause 26.10 where any consumer, whose supply is disconnected for non-payment of any amount due to the Board on any account, fails to pay such dues and regularize his account within three months from the date of disconnection, the Board may if it thinks fit, after completion of 3 months period, issue one month notice for termination of the agreement. If the consumer still fails to regularize the account, the Board shall terminate the agreement with effect from the date of expiry of the said one- month notice, such termination shall be without prejudice to the rights and obligations incurred or accrued prior to such termination. Under clause 33.2 the consumer has to pay the minimum charges as specified in the tariffs and the obligation shall be absolute. The minimum charges shall be payable by the consumer even if no electricity is actually consumed, for any reason whatsoever and also if the charges for electricity consumed are less than the minimum charges. The minimum charges will be payable even if electricity is not consumed because supply has been disconnected by the Board because of non-payment of electricity charges, pilferage, other malpractices or for any other valid reason. Under clause 42.1 where the consumer is evicted from the premises under any other law, the Board may discontinue the supply of energy to such premises and remove its installations and equipment without prejudice to the other rights of Board recover from such consumers the expenses incurred for dismantling its installation and removing its equipments. Under clause 42.2 where the consumer requires a license or permission from any statutory authority or any authority of Government to run the business/industry, or permission for lifting of water wherever necessary for purposes of irrigation, or for any other purpose for which he seeks or availing supply of electricity or for locating such business/industry/pumpset or any other equipment at the place where he is receiving such supply and where the conduct of such business/industry/activity at such place becomes unlawful by reasons of its failure to obtain initially or secure the continuance of such license or permission, the Superintending Engineer of the Board may, if desired by the concerned statutory or any other competent authority of Government, after giving notice calling for explanation and after considering the same, discontinue supply without forfeiting the rights of the Board under the agreement with the consumer. Under clause 42.3 where the consumer defaults in payment of charges for the supply of electricity or defaults payment of minimum charges where supply is under disconnection or unconnected minimum charges due in respect of a service for which supply is sanctioned and made ready but not yet availed or fails to or defaults any other sums payable to the Board under the contract of supply or the tariff and terms and conditions of supply notified by the Board under Section 49 of the Electricity Supply Act, the Board, may without prejudice to its other rights cause to be disconnected all or any of the other services of the consumer, though such services be distinct and are governed by separate agreements and though no default occurred in respect thereof. It is the duty of the consumer to pay the minimum charges even after disconnection of power supply. Therefore, the questions that arise for consideration are as to whether the petitioner-industry is liable to pay the minimum charges even after disconnection of power supply and as to whether the agreement is deemed to have been terminated or not. 6. In the instant case, admittedly there is a corresponding obligation on the part of the respondent-corporation to honour the order of the Andhra Pradesh Pollution Control Board directing to stop power supply to the petitioner-industry. Pursuant to the order of the PCB alone the power supply has been disconnected with effect form 21.03.2001 under clause 42.2. Under clause 33.2 the minimum charges shall be payable even if the electricity is not consumed because supply has been disconnected by the Board because of non-payment of electricity charges, pilferage, other malpractices or for any other valid reason and there is a corresponding duty on the part of the Board to honour the order of the PCB under clause 42.2. No doubt, under clause 26.10 it is open for the Board to terminate the agreement where the supply is disconnected for non-payment of any amount due to the Board on any account and even after three months if the said dues have not bee paid the Board may by giving one-month notice terminate the agreement. A perusal of clause 26.10 goes to show that it is not mandatory to terminate the agreement, as the Board may, if it thinks fit, after completion of three months, is entitled to issue one-month notice. Merely because electricity bills have not been paid for a period of three months, the termination of the agreement is not automatic but it is at the discretion of the Board by giving one-month notice after the expiry of three months period of non-payment of minimum charges. 7. In the instant case, the disconnection of power supply to the petitioner-industry is not on account of non-payment of three months minimum charges but it is on account of the order of the PCB. It is the duty of the petitioner-industry to see that air, water and land is not polluted, therefore, for the fault of the petitioner-industry only the PCB ordered closure of the unit and when the so-called lapses were rectified, the PCB ordered for restoration of power supply and accordingly the respondent-corporation restored the power supply. However, for restoration of power supply, as per the terms and conditions of agreement and in view of the aforesaid clauses, the minimum consumer charges were rightly demanded. 8. I am of the opinion that the action of the respondents in demanding to pay the minimum charges cannot be held as illegal, arbitrary and contrary to the terms and conditions of supply. Had the petitioner-industry wanted to terminate the HT agreement, it would have exercised its option under clause 26.8 by giving three months notice in writing for termination of the agreement but the petitioner-industry failed to exercise the option available to it under clause 26.8. The closure order by the PCB cannot be equated with that of a Vis Major or Act of God but it can only be attributable to the lapses and lacunae on the part of the petitioner, therefore, it cannot be said that the respondents have no right or authority to demand the minimum charges during the subsistence of agreement and unless the agreement is terminated there is a corresponding obligation on the part of the petitioner- industry to pay the minimum charges as per the terms and conditions of supply. In view of the aforesaid facts and circumstances, I do not see any merits in any of the contentions of the petitioner. The writ petition is accordingly dismissed. There shall be no order as to costs. ______________ V. ESWARAIAH, J August 20, 2008 Note: LR Copy to be marked (B/o) DSK