1995 PLP 1310 (CLC)

(a) the consumers; load factor; or (b) the power factor of his load; or (c) his total consumption of energy during any stated period; or (d) the hours as which the supply of energy is required." Clause X of the Schedule appended to the Electricity Act, prescribes methods of charging charges. Clause XIA of the Schedule provides for minimum charges. "XIA. Minimum charges.‑‑A licensee may charge a consumer a minimum charge for energy of such amount and determined in such manner as may be specified by his licence and such minimum charge shall be payable notwithstanding that no energy has been used by the consumer during the period for which such minimum charge is made." Conditions 15 and 18 of he Abridged conditions of supply which form integral part of every agreement for supply of power rule are as under: "

15. Failure of supply.‑‑The Department shall not be liable for any claims for loss, danger or compensation whatsoever, arising out of failure of the supply when such failure is due either directly or indirectly, to war, muting, civil commotion, riot, strike, lock‑out, fire, flood, tempest, lightning, earthquake, or other force, accident or cause beyond the control of the Department.

18. Charges for Supply.‑‑The methods of charging for supply given to the consumer by the Department shall be those described in the annexed schedule of Tariffs. A consumer shall not be entitled to change the Tariff under which he has agreed to be charged, as stated in his application." Various Tariffs are provided for in the Schedule appended to those conditions The relevant Tariff may be reproduced‑. The charge provided above will represent the minimum monthly charge under this Tariff even if no energy is consumed.

2. "Billing Demand," for the purpose of this Tariff during a month, means the highest of the following: (a) The actual maximum demand recorded during the month; (b) ninety per cent. of the highest figures of maximum demand recorded in any month during the preceding eleven consecutive months. If a consumer remains disconnected during the preceding eleven consecutive months or any part thereof, then the period of eleven consecutive months shall be reckoned ignoring the period of such disconnection; (c) fifty per cent. of the total sanctioned load; (d) 71 K.W. 3. .......................................... 4. "Supply charges" for the purpose of this Tariff, include (1) fixed charges for the authority's reservation of power for the consumer's billing demand in kilowatt as defined above. (2) Energy charges for the amount of energy actually consumed by the consumer in kilowatt hours. (3) Fuel Adjustment Surcharge and (4) Penalty for low power factor. 5 6. "Fixed charges" means the charges for the Authority's reservation of power for consumer's billing demand in kilowatt as defined above. 7. "Energy charges" means the charges for the units actually consumed by the consumer in kilowatt‑hours, 8. "Reservation of Power", for the purpose of assessment of fixed charges under this Tariff, means the Authority's reservation of power for consumer's billing demand‑‑ (a) in the case of premises already connected to the Authority's supply system; for twelve consecutive months of each financial year (July June), and (b) in the case of premises connected to the Authority's supply system during the course of a financial year, for the remaining part of the financial year.

6. A perusal of the above provisions would show that prescribing of a fixed minimum charge for energy. by the WAPDA has statutory backing and this act itself suffers from no illegality. Even the petitioners have expressed no reservations qua legality of those provisions or about act of the Authority in laying down a minimum fixed threshold for its demand from the consumers; their only objection is that the fixation of a minimum charge by the Authority is for "reservation of power" equivalent to "billing demand" of a consumer but since during period the WAYDA resorts to load‑shedding, no power is "reserved" by WAPDA for the consumer, therefore, "fixed charges" for period of non‑supply of energy are not payable by the consumer to the Authority. The argument may appear quite attractive at its face but a little scratching would reveal its spaciousness. Condition 18 of the Abridged Conditions of supply says that "methods" of charging the supply given to a consumer shall be those described in the schedule of Tariff. The definition of the terms given in the Tariff makes it explicit that "reservation of Power" is for the purpose of "assessment" of fixed charges for Authority's reservation of power for billing demand of a consumer. The billing demand for purpose of the Tariff according to clause 2 of the Tariff has been declared to be the highest figure determined do the basis of the following factors: (a) The actual maximum demand obtaining in any month measured over successive periods each of 30 minutes duration. For example, under Tariff B‑2 which relates to sanctioned load of 70 kw‑500 kw, if the maximum demand of a consumer is recorded to be 251 kw, this figure will be considered to be the billing demand of the Authority. It will be seen that this has nothing to do with the sanctioned load, or to the quantum of energy consumed but only to the highest amount of energy consumed over a period of 30 minutes. (b) Ninety per cent. of the highest figures of maximum demand recorded in any month during the preceding eleven months excluding the period the consumer remained disconnected. (c) Fifty per cent. of the total sanctioned load. For example if the sanctioned load of a consumer is 500 kw; the billing demand would be reckoned to be 250 kw. (d) 71 kw. This would be applicable to sanctioned loads of 10 kw to 142 kw. A perusal of the above provisions would show that "billing demand "under sub clauses (a), (b), (c) and (d) is not related to actual consumption during any month. Under sub‑clause (a) it can be the highest demand for only 30 minutes in a month. Under sub‑clause (b) the billing demand may be calculated on the basis of previous consumption while under sub‑clauses (c) and (f), it is not based on any consumption at all, put on sanctioned load alone meaning thereby that even if no energy is consumed or supplied, the consumer has to pay a fixed minimum charge to WAPDA. The fixed minimum charge is thus not co‑related with consumption or supply of energy; it is the price which a consumer has to pay for merely getting connected to Authority's power system and is termed as reservation of power for billing demand of the Authority as computed in terms of the Tariff applicable to the sanctioned load. "Reservation of Power" in terms does not occur in the Conditions of Supply but finds mention in the Tariff which according to the Conditions of Supply is a method to compute the fixed charges to be levied. It is neither a condition of supply nor an undertaking that a particular quantum of energy would always be made available at the premises of the consumer. If the terms had been found in the Conditions of Supply, it could have been interpreted as putting the Authority under an obligation to supply to the consumer, on demand, energy equivalent to the reservation of power for the consumer's billing demand but the phrase is used in the Schedule of Tariff which contains the "methods" for charging the supply given to the consumer and thus can be considered as an assessment formula for working out the fixed charges only. Any amount of ringing of changes would yield no other interpretation of the terms. No provision has been pointed out by petitioner or seen in the germane statutory provisions or the agreement between the parties which makes it obligatory on WAPDA to make continues or constant supply of power at the supply terminals of the consumer. Suspension of supply by WAPDA would not give any entitlement to the consumer to be compensated in the manner as has been urged.

7. Bihar Electricity Board case (AIR 1989 SC 1030) relied upon by the petitioners is not applicable to the present cases. In that case, one of the clauses of the agreement (clause 13) provided for proportionate reduction in fixed charges in the event of non‑supply of power by the Electricity Board to the consumer, and when the Board refused to oblige the consumers in terms of that clause, the Court came to their rescue. No parallel provision is found in the conditions of supply or the agreement between the parties here, which would envisage similar relief to be given to consumers in case of non‑supply of power by WAPDA and hence petitioners reliance on the precedent cited above is totally misplaced.

8. Since the petitioners have no case on merit, the technical objections raised by the respondents qua maintainability of the petitions or non‑availing of alternate remedies under the Electricity Act and the Rules, though quite weighty, are not being adverted to.

9. For the foregoing reasons it is held that the phrase "reservation of power" occurring in the Schedule of Tariffs is utilized for assessing the amount of fixed charges to be levied and has no nexus with the supply of energy nor it is co‑related with the power supplied or to be supplied and hence the petitioners cannot claim any proportionate reduction in the Fixed Charges levied by WAPDA during the period it has to take resort to load shedding. The petitions are without any merit and stand dismissed. Parties to bear their own costs. A.A./M‑2042/L Petitions dismissed.