1996 INSC 0919
                                           Bihar State Electricity Board

                                                           Vs

                                    Bijoy Mining Company Ltd. and Others

                                          Civil Appeal No. 9843 of 1996

                                      (K. Ramaswamy, G. B. Pattanaik JJ)

                                                      15.07.1996

                                                     JUDGMENT

1. Leave granted.

2. Heard learned counsel on both sides.

3. This appeal by special leave arises against the order of the Division Bench of the High Court of
Patna, dated 21-9-1993 made in CWJA No. 2811 of 1993. Admittedly, the respondent had entered
into an agreement with the appellant-Board for supply of electricity pursuant to which the
respondent was required to pay the minimum guarantee charges. When a bill was issued, it would
appear that the respondent had objected to the minimum guarantee bill on the ground that there was
erratic supply of 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 of 1992 had disposed of writ petitions on 25-2-1993 directing the Board
to 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.

4. It is seen that clause 13 of the agreement provides as under :

                  "13. 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 strike,
                  riots, fire, floods, explosions, act of God or any other case reasonably beyond control
                  or if the Board is prevented from supplying or is unable to supply such electrical
                  energy owing to any or all of the causes 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.

                  Note. - The term Chief Engineer includes Additional Chief Engineer for the area
                  concerned."

5. A reading thereof would clearly indicate that the Board is enjoined to give proportionate
reduction provided any one of the conditions enumerated therein had occasioned. Obviously, an
application in that behalf shall be required to be filed to 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
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 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 order 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 13, the proportionate reduction is required to be
given to the respondents.

6. The appeal is accordingly ordered. No costs.