JUDGMENT
Gyan Sudha Misra, J.
1. This writ petition has been filed by Thar Cement Pvt. Ltd. which is an industrial consumer of electricity supplied by the Rajasthan State Electricity Board (hereinafter referred as to RSEB/Board) seeking directions from this Court, which are two-fold. It has first of all been prayed that the order dated 30.1.1997 issued by the RESB requiring the conversion of bank guarantee furnished by the petitioner into cash security be quashed and set aside. Secondly, it has been prayed that the letter dated 15.3.1997 and Clause 21A of the supplementary agreement entered into between the petitioner and the RSEB in terms of which the petitioner was required to deposit two months consumption charges as security in cash be quashed and declared ultra vires Article 14 of the Constitution of India.
2. In order to test the reasonsableness of the prayer, learned Counsel for the parties were heard at length at the admission stage itself, from which it emerged that the RSEB has framed Rules called as General Conditions of Supply and Scale of Miscellaneous Charges Relating to Supply of Electricity, 1964. In terms of Clause 29 of the said Conditions, the Board is empowered to require any intending consumer to enter into a formal agreement and to deposit security as per the schedule of charges for the payment of energy to be supplied and, for the value of the meter and other apparatus installed in the premises. Condition No. 20(e) of the conditions, also provides that the Board shall be at liberty, at any time, to apply for security so deposited towards payment of satisfaction of any money which shall become due or owed by the consumer. The Board is also further empowered to demand enhanced security deposit at any time during the period of continuance of supply to him. Accordingly, the RSEB entered into an agreement with the petitioner and under Clause 21 (a) of the agreement the petitioner company was required to deposit security in cash, for which no interest was payable the sum equivalent to the charges of one month’s consumption or upto Rs. 5,000/- whichever is higher and balance of the security amount was to be in the form of bank guarantee or insurance guarantee from a Nationalised Insurance Company. Under the aforesaid provision, security deposit is to be made by the consumer at the prescribed rate in proportion to the connected load or three month’s estimated consumption charges which ever is higher.
3. The petitioner company was, therefore, required to deposit security with the Board for the fulfilment of the terms and conditions of the agreement and the total security deposit required to be deposited in cash was Rs. 12,77,443/- (Rupees twelve lakhs seventy seven thousand four hundred forty three) but the petitioner company deposited an amount of Rs. 1,13,310/- (one lakh thirteen thousand three hundred and ten) and rest of the security was deposited in the form of bank guarantee. The amount required to be deposited by the petitioner company was calculated by the Board by taking into account the highest consumption in any of the months of the previous year on the basis of the aforesaid highest consumption as per the previous year. At this juncture, it may be recorded that the RSEB has disputed this position only to the extent that the calculation was made not by taking into account the highest consumption in any of the months of the previous year, but it was on the basis of average consumption by the consumer petitioner for the last three months. However, this fact does not have any serious bearing upon the dispute involved herein and hence, the controversy in this regard is ignored. However, it is an admitted position that the petitioner company had to deposit cash security and in lieu of it a bank guarantee was given for a major part of the amount which was to be deposited by the petitioner company as advance towards security amount as already indicated hereinabove.
4. The petitioner company thereafter, appeals to have deposited the amount of Rs. 14,81,944/- being the electricity charges for the actual consumption of electricity on 6.3.1997, but failed to deposit fuel surcharge arrears.
5. The petitioner company therefore, filed an application on 12.3.1997 to the Chairman of the respondent Board for grant of instalments for the payment of said fuel surchage which was due for the year 1993-94 and 1994-95. The petitioner was given an opportunity to make payment of fuel surcharge in four equal instalments as per the reply of the RSEB, including the payment of balance amount of instalment already granted on 14.1.1997. However the petitioner also requested to convert the bank guarantee into cash security deposit in 8 monthly instalments commercing from April, 1997. The petitioner, however prior to this, had already faced disconnection for the failure on their part to pay arrears of fuel surchage for the year 1993-94 and 1994-95, after which the petitioner applied on 14.3.1997, after disconnection for grant of 12 equal instalments for payment of arrears of fuel surchage from 1993 to 1995, which was refused to the extent that they were directed to pay in four equal instalment instead of 12 equal instalments as sought by them. In the meantime, however a decision was taken by the RSEB through the Chairman as a result of which the petitioners were required to undertake and execute a fresh agreement, wherein clause 21 (1) clearly stipulates as under:
Since consumer has failed to deposit electricity charges timely and/or request for grant of suitable instalment for arrears/current dues and thus now agrees to deposit in cash (for which no interest is payable) with the security deposit equivalent to two months consumption charges or minimum charges whichever is higher. The bank guarantees as already furnished with the Board from time to time, renewed or replenish security in the event the same becoming exhausted or insufficient. The Board shall be at liberty at any time from time to time to appropriate and apply the security so deposited with the aforesaid in/or towards payment or satisfaction of all or any money which shall become due or owing by the consumer to the Board in respect of the supply of energy or otherwise under this agreement but provisions contained in this clause shall not prejudice any other remedy to which the Board may now be entitled for recovery of such amount.
6. The petitioner entered into the aforesaid agreement fully understanding its implication after which the electricity was restored to the petitioner. This agreement was executed on 18.3.1997 but soon thereafter the petitioner challenged the said agreement before this Court by filing this writ petition wherein they have sought issuance of a writ, order or direction for quashing the letter dated 15.3.1997, although the dispute about justification of this letter was resolved as per Clause 21 (a) of the said agreement, which has been described by the petitioner as supplementary agreement. However, the petitioner also prayed that the bank guarantee furnished by the petitioner should not be allowed to be converted into cash security and the order in this regard’ dated 30.1.1997 be quashed and set aside, on which a show cause notice was issued to the RSEB, which has been duly responded.
7. In so far as the action of the respondents for converting the bank guarantee into cash security is concerned, it has been submitted on behalf of the RSEB that since in number of cases, the consumers failed to deposit the energy charges (the actual consumption charges) and supply was also disconnected, in all those cases, it was difficult for the RSEB to make recovery of the arrears which were amounting in lacs and in some cases in crores of rupees and in that eventuality, inspite of best efforts by the RSEB, the banks were not accepting the request of the RSEB for getting the bank guarantee encashed and, as such, to safeguard the interest of the Board a decision was taken to dispense with the practice of obtaining bank guarantee since it failed to serve any useful purpose when operated. It has also been brought to the notice of this Court that the consumers utilised the electricity in advance of the bills issued for payment after they had caused consumption. Considerable time elapses after the bills are prepared on the basis of meter reading and issued to the consumers and they are also allowed adequate grace time for making payment. But there are circumstances when the consumer do not make the payment of bill as per the statutory provision for which seven days clear notice is required to be issued and in the process before connecting the electricity to the consumer a cycle of more than two months period expires due to which the necessity of advance security deposit was introduced by the Board which is equivalent to three months average consumption. This practice of the Board according to the RSEB has also been upheld by the Apex Court in cases of similar circumstances and the Board has been held competent to recover the security deposit equivalent to three months consumption charges. In due course, however, the State Government took a decision for reducing the period of bank guarantee from two months to one month in the cases of industrial category of consumers. Accordingly, the Board has also made a policy for deposit of security equivalent to consumption charges out of which one month amount was in cash and the other one month’s charges were obtained in the form of bank guarantee as it had been the expression of the Board that large number of bank guarantee could not be encashed due to which RSEB had to file a civil suit for effecting recovery.
8. It is further pertinent to mention as pointed out by Shri Virendra Lodha learned Counsel for the RSEB that in any event the bank guarantee furnished by the petitioner already expired on 12.10.1994 and there is not a single penny by way of bank guarantee available with the RSEB as advance security for consumption to be made by the petitioner. The petitioner has not furnished any new bank guarantee and, as such for all practical purposes. As on date, no bank guarantee furnished by the petitioner is in operation and not a single penny is available with the RESB towards the bank guarantee. This assertion has not been countered by any rejoinder by the petitioner and hence, it has rightly been pointed out on behalf of the RSEB that in so far as the prayer of the petitioner for setting aside the order of conversion dated 30.1.1997 for conversion of bank guarantee into cash security is concerned, it does not survive and the writ petition to that extent has become infructuous and even if it had not become infructuous, there would have been no reason to interfere with the same.
9. In so far as the alternative relief regarding quashing of Clause 21(a) of the agreement in pursuance of which the letter dated 15/3/1997 has been issued requiring the petitioner to deposit two months consumption charges as security in cash also cannot be interfered with, for the petitioners with open eyes had entered into the supplementary agreement regarding payment of fuel surcharge dated 18.3.1997 without any coercion of fraud and, hence are estopped from challenging its validity for once the petitioner has become a signatory to the aforesaid agreement, he is bound to act in consonance with all the clauses incorporated therein. The plea taken on behalf of the petitioner that the petitioners in order to get electricity connection had to abide by any condition howsoever unjust or illegal it were as the petitioner could not afford to run the industry without electricity does not hold good as the petitioner could have refused to enter into the same and could have moved this Court challenging its terms and conditions prior to signing it on that ground that the same were in the nature of coercion or was illegal in any manner. The petitioner ought to have looked before leaping but having once entered into the agreement, the same cannot be set aside by this Court in absence of any mala fide or fraud played by the RSEB against the petitioner. On the contrary, the history of the matter clearly indicates that the RSEB has been behaving in a considerate manner by allowing payment of arrears by way of instalments and merely because the break-up of the instalments have not been granted in as many number as sought by the petitioner, the order cannot be held to be bad in this respect.
10. The agreement has further been executed which the Board was clearly empowered to execute as per the condition No. 29 (a) of the General Conditions of Supply and Miscellaneous Charges Relating to Supply of Electricity, 1964, which empowers the Board to enter into a formal agreement directing the consumer to deposit the security as per the schedule of charges for the payment of energy to be supplied. If the RSEB, in order to safeguard its payment, which in their experience were not paid by the consumer promptly and within time, due to which agreement was entered into between the petitioner and the RSEB and, the petitioner also entered into such agreement willingly with the RSEB, it cannot be allowed to the petitioners to renege on their promise by turning around and stating that the conditions are arbitrary as it was open for the petitioner to move this Court prior to entering into such agreement.
11. I, thus, find no infirmity in the order dated 15.2.1997 requiring the petitioner to deposit two months consumption charges as security in cash which in any case is always adjusted towards the final payment which the consumer ultimately has to pay towards the actual consumption.
12. The writ petition, in the circumstances, is dismissed.