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Judgment
THIS order will dispose of R.T.P.E. No. 213/1995, R.T.P.E. No. 225/1995, R.T.P.E. No. 226/1995, R.T.P.E. No. 227/1995 and R.T.P.E. No. 228/ 1995 as common questions arise for consideration in all these cases. The facts in R.T.P.E. No. 213/1995 have been referred in this order and it will not be necessary to reproduce facts in each case.
THESE complaints have been filed under Sections 10(a)(i) and 36B(a) of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the Act) against the respondent impugning the "Backup cost" as claimed by the respondent for supply of electricity. This is challenged as unfair and restrictive trade practice adopted by the respondent within the meaning of Sections 2(o)(ii) read with Sections 36A and 33 of the Act. We may refer to the facts of the first case as incorporated in paragraphs 5 and 6, 7 and 8 of the complaint which read as below : "(5) That in connection with the complainant''s application for supply of Electrical energy/connected load, a demand notice dated 28.3.1995 (Annexure : 2) was issued to the complainant Company. As per extracts of this demand notice enumerated below the respondents demanded as follows : S. No. Abstract of deposit Amount 1. Service charges of 4,000/ - Rs. 4,000.00 2. Security deposit for light point No Rs. 3. Security deposit for power plug No. RP Rs. 4. Security deposit 2200 to 4000 KVA for H.T. consump. Rs. 5. Renent fee deposit of Rs, 225 Rs. 5,19,480.00 Total : Rs. 5,23,480.00 Pay 5,23,480/-only (Rupees five lakhs twenty three Thousand four hundred and eighty only) (6)It is pertinent to submit here that this Demand Notice contained certain terms and conditions one of being that deposit shall be made within 30 days of the issue of Demand Notice otherwise the application will be treated to be cancelled. As will be observed from the demand notice, the respondent demanded service charges as well as initial deposit. It is paramount importance to submit that a surety from the Bank for an amount of Rs. 5,19,480/- was also demanded along with this demand notice, for which no time was fixed. (8) That the complainant in compliance with the strict terms of the demand note mentioned above (dated 28.3.1995 : Annex. : 2), deposited an amount of Rs. 5,23,480/- on 26.4.1995 vide R.S.E.B. Receipt Book No. B-31935 (Annex. : 3)".
The complainant has further challenged the "Backup cost" as demanded by the respondent amounting to Rs. 9,00,000/- which is reiterated in paragraph 15 of his complaint. It reads as under : "That the complainant was shocked to receive the letter dated 27.7.1995 issued by the Executive Engineer, R.S.E.B. (respondents), which is enclosed herewith as Annxure : 6, under the heading "Backup cost" and demanded a further sum of Rs, 9,00,000/- (Rupees nine lakhs) to be adjusted within a period of 5 years @ 20% per year. This was a new condition imposed by the respondents as a pre-condition for the supply of the extra load of KVA against the representations made and assurance given earlier and against the demand note issued earlier containing conditions therein. This letter is a clear violation of the terms and conditions contained in the demand note dated 28.3.1995 (Annexure : 2)."
THE respondent has filed reply wherein it is submitted that no unfair or restrictive trade practices has been adopted by it and the present complaints are liable to be dismissed. THE purpose of charging the "Backup cost" is explained in paragraph 4 of the reply which may also be reproduced as below : "It is submitted that none of the Board members has any personal interest in passing of the aforesaid order. It was passed keeping in view of the limited resources available with the State Electricity Board and looking into overall benefit which the consumers would get as a result of the extra money coming in with the Board which also would be utilised only for the purpose of providing facilities to the consumers. THE charges to be deposited are by way of interest-free advance which will be adjusted in the bills after release of connections. No interest on such advance was decided to be given in view of the precarious financial position of the Board. It is submitted that the order dated27.6.1995 was issued by the Board prescribing the recovery of charges for various categories of consumers (except for domestic categories) for release of new connections as well as for extension in the sanctioned connected load/contract demand. THE charges were prescribed on the basis of the sanctioned connected load in K.W. or on the basis of K.V.A. demand of the connection. It was also prescribed that the charges as mentioned for release of new connections as well as for the extension in the sanctioned connected load/contract demand shall be refunded to the consumers through adjustment in equal instalments in the energy bills in the span of five years. It is pertinent to mention that the charges being recovered from the consumers pursuant to the orders dated 27.6.1995 is only part of the cost of augmentation or installation of new transformers. THE actual expenditure incurred by the Board for enhancement of the existing transformers capacity at various levels to maintain proper voltage is much more than the amount which shall be recovered from the said applicants, for example for the installation of 100 KVA/11.04 KVA sub station of about Rs. 1.5 lacs expenditure is required to be made whereas the charges which would be recovered by way of interest-free advance from the new applicants or from existing consumers desirous of increase in the sanctioned load/ connected load shall be Rs. 25,000/- only. In this way less than 1/6th of the cost of the sub-station is proposed to be recovered from the new applicants as an advance to be adjusted in future energy bills. THE balance sum shall be incurred by RSEB out of its depleting financial resources. THE respondent craves reference to the statement showing the rate per unit (excluding fuel surcharge and electricity duty) for various categories, statement showing the station wise cost or generation and pooled costs of generation. THE average cost per unit p/KWH and details of energy available and purchased during 1986-87 to 1994-95. Copies of each of the charts showing the aforesaid information are annexed hereto and collectively marked as Annexure-II."
The objections as raised by the complainants cannot be supported on facts as well as in law. The parties entered into an agreement dated 15.6.1992 wherein the power to claim "Backup cost" is permitted as will be evident from reading Clause 11 (a) which reads as below : "11. (a) The consumer shall be liable to pay the cost of service line and other equipment as may" be laid down or placed on his property for the purpose of supply to his premises provided that 100 feet of service line on public roads from the distributing mains of the board shall be supplied free of cost."
FURTHERMORE, in exercise of powers vested with Section 49 of the Electricity (Supply) Act, 1948 the Rajasthan State Electricity Board has issued a notification/order dated 27.6.1995 which will justify the imposition of "Backup cost". The said Notification may be referred to as under : "No. RSEB/DCO/C.I/F.4(117)/95/ D.1665 Dated 27.6.1995 ORDER Sub : Charging the amount for releasing new connection and extension in connected load/contract demand under Small, Medium and Large Industrial, Bulk Supply for Mixed Load and Non-domestic categories. The matter of charging the amount for releasing new connections and extension in connected load/contract demand under Small, Medium and Large Industrial, Bulk Supply for Mixed Load and Non-domestic categories, was discussed in the meeting of Whole Time Members held on 10.5.1995. It was decided to recover the following charges for releasing new connections and extension in sanctioned connected load/ contract demand. This decision would be deemed to have been made applicable w.e.f. 12th January, 1995 : Particulars Small and Medium Industrial Bulk supply for mixed load and Non-domestic categories Large Industrial category. 1. Release of new connections @ Rs. 500/- per KW or part thereof of sanctioned connect demand. @ Rs. 500/- per KVA or part thereof of sanctioned connected load. 2. Extension in sanctioned connected load/ contract demand. (a) Consumers who apply (in prescribed application form and also deposit requisite fees) for extension in sanctioned connected load/contract demand. @Rs. 500/-per KW or part thereof of extension in sanctioned connected load. @Rs. 500/-per KVA or part thereof of extension in sanctioned contract demand. (b) Consumers who do not apply for. (c) Extension in sanctioned connected load/contract demand but have connected/ extended the same un-authorisedly and for regularising the extension in sanctioned connected load/contract demand. @Rs.750/-per KW or part thereof of extension in sanctioned connected load. @Rs.750/-per KVA or part thereof of extension in sanctioned contract demand The charge mentioned at Items (1) and (2)(a) above and Rs. 500/- per KW or KVA, as the case may be, out of charges mentioned at Item (2)(b) above shall, however, be refunded to the consumer through adjustment in equal instalments in energy bills in a span of five years. Further, the charges mentioned at item 2(b) above shall be over and above the charges prescribed under Clause 29(E)(3) of the General conditions of supply for malpractice for other than Large Industrial consumers and for large Industrial Consumers it will be as per provisions of relevant tariff for supply of electricity to Large Industrial Category for exceeding contract demand. Similarly, in case where the consumer applies for extension in sanctioned connected load/contract demand but has connected/exceeded the desired connected load/contract demand before actual release, such consumers apart from charges mentioned at Item 2(a) above, shall also be charged under the provision of ''Malpractice'' as per Clause 29(E)(3) of General conditions of supply for other than Large Industrial consumers and for Large Industrial consumers it will be as per, provisions of relevant tariff for supply of electricity to Large Industrial category for exceeding contract demand. Above charges are sort of interest-free advance and are over and above other charges such as cost of line, security deposit, etc. being levied as per prevailing rates. This order is issued in super session to Board''s earlier orders issued on the subject in the past. All the cases where demand notices were/are issued on or after 12th January, 1995 shall be governed by this order."
On the above basis it is clear that the respondent is justified to claim the "Backup cost" from the consumers which is adjustable and refunded to the consumers in equal instalments in the energy bills in the span of five years. The complainants have been provided with an equally efficacious alternative remedy by Clause 30 of the agreement to which they can take recourse in case such an eventuality arises. This clause reads as below : "30. In the event of any dispute or difference arising at any time between the supplier and the consumer in regard to any matter arising out of or in connection with agreement such dispute or difference shall be referred in the first instance to the Supplier''s Chief Engineer and in case of his decision not being accepted to the consumer the said dispute or difference shall be referred to the arbitration of two Arbitrators, one to be appointed by each party hereto, and an Umpire to be appointed by the arbitration before entering upon the reference and the decision or award of the said Arbitrators or Umpire shall be final and binding on the parties hereto and any reference made under this clause shall be deemed to be a submission to arbitration under the Indian Arbitration Act, 1940 or any statutory modification thereof for the time being in force. The Arbitrators or the Umpire giving their or his decision also decide by which party the cost of the arbitration and award shall be paid, and if by both parties in what proportion."
The Clause 35 also provides that : "All disputes arising under this agreement or touching or concerning any covenant or condition of this agreement shall be subject to the jurisdiction of Courts in Rajasthan alone."
IN view of the above reasons the present complaints are dismissed. The Notices of Enquiry are discharged. There shall be no order as to costs. Complaints dismissed.