Krishna And Company vs RAJASTHAN STATE ELECTRICITY BOARD

A Notice of Enquiry (NOE) was issued on 31.7.1996 under Section 10A(i) read with Section 37 of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act) to Rajasthan State Electricity Board, Jaipur on the basis of a complaint filed by Krishna and Company, B-483, Industrial Area, Bhiwadi, District Alwar, (Rajasthan) levelling allegations against the former that it indulged in restrictive trade practices within the meaning of Section 2(o)(ii) of the Act.

THE facts of the case as contained in the NOE are reproduced below : THE complainant entered into an agreement with the respondent on 9.8.1991 for supply of electrical energy at the factory premises of the complainant up to a maximum load of 1650 KVA upon terms and conditions in the said agreement, which was later increased to 1900 KVA. Clause 8(d) of the said agreement reproduced below provided that excess load to the extent of 5% was also allowed thereby entitling the complainant to increase its utilisation of load up to 1995 KVA. Clause 8(d)-the load on the three phase of supply under the agreement shall be kept so balanced by the consumer that the difference in current between any two phase at the time of maximum demand shall not exceed 5% without the prior approval of the supplier in writing.

The complainant received electricity bill dated 1.6.1996 for the billing month June, 1996 showing meter reading as 2016 KVA as against the permitted load of 1995 KVA including 5% excess load for which the respondent made an excess demand/penalty of Rs. 96,601.86. The grievance of the complainant is that the respondent Board levied penalty @ 6.11% on the amount of the bill as against 1.11% after excluding the stipulated 5% excess load permitted by the respondent. According to the complainant, the excess charges came to Rs. 17,549/- only as against Rs. 96,601.86 demanded by the respondent Board. The above trade practices amounted to manipulation of conditions of supply of electrical energy which had the effect of imposing unjustified costs/restrictions on the consumers within the meaning of Section 2(o)(ii) of the MRTP Act, 1969.

BY way of interim order, the Commission directed that the complainant should deposit 50 per cent of the amount in dispute in two equal installments payable by 15.12.1996 and 15.12.1997 respectively. If at the end of the enquiry the disputed amount became payable to the respondent the complainant would pay the balance amount alongwith interest. In case the amount is not payable the respondent shall refund the amount alongwith 18 per cent interest. The respondent filed a reply on 21.2.1997 in which the following main points were made : (1) The complainant has misled the Commission that its case is covered by Clause 8(d) of the agreement entered into between the respondent and the complainant whereas the relevant Clause is 1(c). (2) Clause 1(c) of the agreement reads as follows : "In case the consumer takes power more than 5% over and above the contract demand agreed to in Clause 1(e) of the above, apart from being liable for disconnection, the consumer well be required to pay extra charges as prescribed in the relevant tariff schedule". (3) Electricity is a raw material for the complainant and hence it cannot be . termed to be consumer. (4) Clause 8(d) of the agreement prescribes that the consumer should keep a load on the three phases of supply in a balanced manner such as the differences in current between any two phases at the time of maximum demand will not exceed 5% without the approval of the respondent. This clause is not at all relevant in the context of the complainant exceeding the contracted demand. (5) In the bill dated 1.6.1996 of the complainant, the consumption/ reading in the meter was 2016 KVA against the contracted demand of 1900 KVA. Since 5% of the contract demand comes to 95 KVA no penalty is imposed on consumption up to 1995 KVA. (6) No restrictive trade practice was adopted by the respondent.

After the pleadings were completed the following issues were framed : (1) Whether the application is maintainable in view of the reply taken by the respondent ? (2) Whether the respondent is indulging in restrictive trade practices as alleged in the NOE ? (3) Whether the said restrictive trade practices are not prejudicial to consumer or consumers generally ?

BOTH the complainant and the respondent agreed that the case could be adjudicated on the basis of affidavits of evidence and counter affidavit by the respondent. The case was listed for final arguments on 26.10.1998. We gave a hearing to Mr. M.L. Sachdev, Advocate for the complainant and Mr. Dinesh Agnani, Advocate for the respondent. We have carefully examined the records of the case and given due consideration to the arguments of both the Advocates. There are no disputes regarding the facts in this case. The Advocate for the respondent argued that the complainant had not appreciated the distinction between Clauses 1(c) and 8(d) of the agreement. Clause 8(d) lays down that the load on the three phases of supply should be kept so balanced by the consumer that the difference in the current between any two phases at the time of maximum demand shall not exceed 5% without the approval of the respondent in writing. This clause has no relevance to the contracted demand. On the other hand Clause 1(e) provides that in case the consumer takes power more than.5% over and above the contracted demand, apart from being liable for disconnection, the consumer will be required to pay extra charges as prescribed in the relevant schedule. The tariff schedule provides that if the demand for a particular month is more than the contracted demand the extra charge will be equal to the same percentage of the energy bill for that month by which percentage the excess demand was caused.

WE are convinced that the interpretation provided by the Advocate for the respondent regarding the provisions of the Agreement is correct. WE agree that Clause 1(c) and Clause 8(d) are not inter-related and the bill dated 1.6.1996 for the month of May, 1996 conforms to the Agreement, as there is no dispute relating to other facts. In view of this we hold that there has neither been any misrepresentation leading to unfair trade practice nor is there any imposition of unjustified cost leading to restrictive trade practice on the part of the respondent.

THE Advocate for the respondent argued during the enquiry that the complainant is not a consumer under the Act as he has been using electricity for commercial purposes. Though this point was mentioned by the respondent in its reply dated 21.2.1997, it did not find a place in the section titled "preliminary objections" and figured only in the section "reply on merits". When the issues were framed the issue whether the complainant was a consumer or not was not framed as an issue for adjudication. When the full enquiry into the case has been completed and the case is being finally adjudicated we do not consider it necessary to examine this point especially when no evidence was taken on this point. In any case the Commission has full discretion under Regulation 51(2) of the MRTP Regulation, 1991 to include Section 10(a)(iv) also in the NOE. In the premises, we order that the NOE issued against the respondent be discharged. We also direct the complainant, in accordance with the interim orders passed by the Commission on 2.12.1996, to pay the balance of the bill relating to May, 1996 alongwith prescribed interest. THE complainant is permitted to do so within a period of two months from the date of this order. THEre is no order as to costs. Enquiry discharged.