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PETITIONER: MAHARASHTRA STATE ELECTRICITY BOARD

       Vs.

RESPONDENT: KALYAN BOROUGH MUNICIPALITY & ANR.

DATE OF JUDGMENT: 08/02/1968

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. WANCHOO, K.N. (CJ) SIKRI, S.M. SHELAT, J.M. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR  991            1968 SCR  (3) 137  CITATOR INFO :  R          1975 SC1967  (18)  R          1984 SC 657  (7)  R          1985 SC 883  (9)  RF         1986 SC1126  (23,25,29)  RF         1988 SC 985  (8)

ACT: Electricity (Supply) Act 54 of 1948; s. 49 as amended by the Electricity (Supply) Amendment Act 30 of 1966, s.  24--Power of  Electricity Board to levy uniform tariffs for  different consumers--Validity of s. 49--Whether colourable exercise of taxing power--Whether gives unguided power to  Board--Effect of s. 24 of Amendment Act.

HEADNOTE: The appellant the Maharashtra State Electricity Board  which took over the supply of electrical energy from the  original lincensee,  increased the tariff and fixed a uniform  tariff for  all  its consumers.  The  respondents  consumers  filed petitions  under  Art. 226 of the  Constitution,  contending that (a) s. 49 of the Electricity (supply) Act 1948 did  not permit  the Board to frame uniform tariffs for consumers  in compact areas as well as consumers in sparse areas, so as to require the former to pay a part of the cost involved in the supply  of electricity to the latter; and (b) if s. 49  gave such power to the Board it; was ultra vires and void, as  it offended the provisions of the Constitution.  The High Court allowed the writ petitions.  The Board filed appeals to this Court   and   during  its  pendency  s.   49   was   amended retrospectively  by the Electricity (Supply)  Amendment  Act 1966  and by s. 24 of the Amendment Act the  imposition  and collection of charges under s. 49 was validated. HELD: The appeals must be allowed. (i)  The appellate-Board had ample powers to  frame  uniform tariffs and the levy was valid. In  the  old  s. 49 there was no such  policy  or  direction indicated  by  the Legislature that the Board  is  to  frame uniform  tariffs.   Under that section, the  Board  had  the power to supply electricity on such terms and conditions  as

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it  may from time to time fix, having regard to the  matters referred to in the said section.  The only restriction  upon the  Board’s  power  was  that  it  shall  not  show   undue preference  to  any  person in fixing  any  such  terms  and conditions.   In s. 49 as it now stands the Legislature  has empowered the Board to frame uniform tariffs and it has also indicated  the  factors to be taken into account  in  fixing uniform  tariffs.  These two aspects are contained in  ’sub- ss. (1) and (2).  The Legislature has also made it clear  in sub-s.  (3)  that  the Board in  the  special  circumstances mentioned  therein, has got power to fix  different  tariffs for the supply of electricity.  Sub-section (4) directs  the Board not to show undue preference to any person for  fixing the  tariffs and the terms and conditions for the supply  of electricity.  Though prima facie it would appear that sub-s. (4)  will govern sub-ss. (1) to (3) in s. 49 the proper  way to interpret sub-s. (4) will be to read it along with sub-s. (7).  When the entire tariff is uniform for every  consumer, there  is  no  question of any  undue  preference  as  every customer  will  pay  the same amount for  the  same  benefit received by him. [153 CE] South of Scotland Electricity Board & Ors. v. British Oxygen Co.  Ltd.  [1959] 2 All E.R. 225  and  Attorney-General  for Victoria  v.  Mayor, Aldermen, Councillors and  Citizens  of Melbourne, [1907] A.C. 469, referred to. Sup.CI./68-10 138 (ii) In the counter-affidavit filed on behalf of the  Board, it has been stated that ever since its constitution, it  has been carrying on its operations at a loss and there has been no  occassion when any part of its revenues has been  passed to  the consolidated fund of the State, as provided  by  the proviso to sub-cl. (b) of cl. 10 of s. 67.  Even  otherwise, before  the  proviso  can come  into  operation,  there  are several  other  items in respect of which  adjustments  will have  to be made, and there will be no occasion at  all  for the  proviso to come into effect.  There is no force in  the contention  of  the  respondents that with a  view  to  give effect  to the proviso the Board will so fix the tariffs  as to  enable  them  to have huge surplus,  after  meeting  the various  adjustments.   In  case such  a  thing  happens  in future. the proviso, which is clearly severable, may have to be  struck  down.  Therefore, this ground  of  attack,  that there  is a colourable exercise of taxing power,  cannot  be accepted. [154 H-155 C] (iii) Section 49 is not, in any way, bad on the ground  that it gives an unguided and arbitrary power to the Board to fix its tariffs as it likes.  The provisions of the Act have the effect  of properly guiding the activities of the Board,  in its  dealings  with  the consumers  including  the  levy  of tariffs.   Section  49  itself  is  hedged  in  by   various restrictions  and  directions which the Board will  have  lo comply  in the matter of framing uniform tariffs or  in  the matter  of fixing different tariffs, and that  section  also provides a proper guide-line for framing uniform tariffs and different  tariffs.   Therefore, in particular,  it  may  be noted  that  the  extension and cheapening  of  supplies  of electricity to sparsely developed areas under cl. (d) of  s. 49(2)  of the Act can only be complied With by  keeping  the uniform rate at a minimum, consistently with the requirement of s. 59, of not running at a loss. [156 B-D] (iv)  The  contention,  that while  restrictions  have  been placed on the licensees no such restriction has been  placed on the Board in as much as that the licensee shall so adjust his  charges  for  the  sale  of  electricity,  whether   by

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enhancing or reducing them that his clear profit in any year of  account shall not, as far as possible, exceed an  amount of  reasonable return, has no substance.  The licensees  are persons  who must have invested considerable capital in  the matter  of  their business. and obviously,  the  Legislature thought that some directions will have to be given so as  to enable them to have a reasonable return. [156 E-G] (v)  Section 24 of the Amendment Act, deals with all  rates, as  a matter of fact fixed under s. 49 of the Act.  In  this case,  the Board has fixed tariffs under s. 49 of  the  Act. Therefore,  s. 24 of the Amendment Act has full  effect  and force. [157 B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 3 3 5  and 336 of 1967. Appeals  from the judgment and order dated April 26, 27  and 28,  1965  of  the  Bombay  High  Court  in  Special   Civil Applications Nos. 1570 and 1571 of 1962. L. M. Singhvi, B. Dutta and Ravinder Narain, for the  appel- lant (in both the appeals). Poras  A. Mehta, G. L. Sanghi, R. A. Gagrat and B. R.  Agar- wala, for the respondents (in both the appeals). V.  A. Seyid Muhammad and S. P. Nayar, for intervener No.  1 (in both the appeals). 139 A. K. Sen and B. R. Agarwala, for intervener No. 2 (in  both the appeals). The Judgment of the Court was delivered by Vaidialingam,  J.  These two appeals,  by  certificate,  are directed  against  the common judgment of  the  Bombay  High Court,  rendered in Special Civil Applications, Nos. 1570  & 157 of 1962. The  circumstances, under which the two writ petitions  were filed, by the respondent, in each of these two appeals,  may be briefly stated.  Till January 14, 1959, a company  called the  Kalyan  Electricity  Company  (Private)  Ltd.,  held  a licence  for  supplying  electrical energy to  the  town  of Kalyan  and the surrounding areas.  The licence of the  said company  was revoked by the Government of Maharashtra,  and, on  option  being given to purchase the undertaking  of  the said  company, the appellant purchased the same, on  January 15,  1959.  The appellant, hereinafter to be referred to  as the  Board,  continued to supply electrical  energy  to  the residents of according to the rates prescribed by the former Kalyan licensee, pending notification of its standard  rates of supply.  In March 1962, a public notice was given by  the Board,  to the effect that in the Western  Maharashtra  area (which  includes Kalyan) revised tariff would be  applicable from the first day of the month next following the month  in which  supply  of  Koyna power  became  available.   As  the electrical  energy from the Koyna Project  became  available from the month of June 1962, the Board caused another public notice  to be issued, informing the public that the  Board’s revised  tariffs would come into force from July  1962,  and that bills, in respect of the power consumption, during that month,  would  be issued at the revised tariffs,  in  August 1962. The  Kalyan Borough Municipality, which is the  respondent,, in  Civil Appeal No. 335 of 1967, was being supplied by  the appellant, electrical energy for street lighting, till  June 1962, on the same terms on which the old Kalyan licensee was supplying.  The Board submitted a draft of the new agreement

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to  the  said  Municipality, in respect  of  the  supply  of electrical  energy  for  street lighting,  under  which  the charge  which  the  Municipality had to  pay,  per  unit  of electricity,   was  slightly  less  than  before,  but   the Municipality was required to pay several fixed  charges,with the  result  that the total amount payable was greater  than before.   The Municipality, however, intimated its desire to enter into the new agreement, only for a period of one year, instead  of  seven years, as suggested by  the  Board.   The Board  was  not prepared to accede to this request,  of  the Municipality, and, on the latter’s failure to pay bills  for street lighting, according to the 140 draft  agreement, an intimation was sent, by the  appellant, on  October  12, 1962, that the supply of  electricity,  for street  lighting, would be cut off, from October  22,  1962. The  Municipality  filed a writ petition,  under  Art.  226, being  Special  Civil Application No. 1570 of 1962,  in  the High  Court, against the Board, seeking a writ of  mandamus, prohibiting  the  appellant from enforcing  the  directions, contained in its notice, dated October 12, 1962. One  Dattatraya  Pandurang Pimpale and  other  consumers  of electricity formed an ’association called ’Kalyan-Dombivali- Vij  Grahak Mandal’, to protest against the steps taken,  by the appellant, to levy increased charges, for the supply  of electrical  energy.  As the request of the Association,  for not,  increasing  the  charges, was not heeded  to,  by  the appellant, which threatened to stop supply of electricity to consumers,  if  the  bins were not paid,  according  to  the revised  tariffs,  the said Dattatraya filed,  in  the  High Court, a writ petition, under Art. 226, being Special  Civil Application No. 1571 of 1962, seeking directions to restrain the Board from disconnecting supply of electrical energy. In  both these writ petitions, the action of the  Board,  in increasing  the tariffs, over and above the rate  which  was charged  by  the  original Kalyan  licensee,  and  fixing  a uniform  tariff, was challenged.  Two contentions appear  to have  been  raised, in the wtit petitions, before  the  High Court,  viz.,  (a) that s. 49, of the  Electricity  (Supply) Act, 1948 (Act LIV of 1948) (hereinafter referred to as  the Supply  Act),  did  not permit the Board  to  frame  uniform tariffs for consumers in compact areas as well as  consumers in  sparse areas, so as to require the former to pay a  part of  the  cost involved in the supply of electricity  to  the latter; and (b)     that,  if s. 49 gave such power  to  the Board, it was ultra vires and void,   as  it  offended   the provisions of the Constitution. The Board, by reference to the scheme and the provisions of the Supply Act, contended that the levy of a uniform  tariff was valid and within its power and that s. 49 did not offend any  provisions of the Constitution.  At this stage, it  may be mentioned that the High Court considered the  contentions of  the parties, on the basis of s. 49, as it was, prior  to the  amendment of the Supply Act in 1966.  Before  the  High Court,   it  appears  to  have  been  common   ground   that distribution  costs involved in the supply  of  electricity, per  unit of consumption, to sparse areas. was  higher  than the   distribution   costs,  involved  in  the   supply   of electricity, per unit of consumption, to compact areas.  The High Court has taken the view that one of the factors  which the Board has to take into account, under s. 49, in  framing its  tariffs,  is  the location, where  the  consumer  wants electrical energy to be sup-  141 plied  to,  him,  and  that  this  implies  that,  if  on  a

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consideration of this factor, the Board finds that the  cost of  supply  of electricity to different  areas,  are  widely divergent, different tariffs could be framed, in respect  of such  areas.  On this line of reasoning, the learned  Judges of  the High Court, came to the conclusion that, in  framing the  impugned tariffs, the Board did not have due regard  to the provisions, contained in s. 49, and therefore, the Board was  not  entitled to enforce the demand, made by  it.   The learned  Judges  also seem to have been impressed  with  the objections,  raised by the respondents, that the  Board  had assumed  that  s. 49 permitted it to frame its  tariffs,  in such  a way that a part of the higher cost, involved in  the supply  of electrical energy, to undeveloped areas,  may  be borne,  by consumers, in compact areas.  As the  High  Court accepted  the contention of the respondents, that the  Board had no power to fix uniform tariffs, so as to cast a  higher burden, on the consumers, in a compact area, where the  cost of supply was less, it did not express any opinion,  regard- ing  the  constitutional validity of s.  49,  though,  there again, the High Court appears to have been inclined to  hold that  unguided and unfettered power had been given,  to  the Board, to fix its charges as high as it liked.   Ultimately, the High Court allowed the writ petitions and prohibited the appellant, from enforcing its claim. to recover the  revised tariff, and disconnecting electric supply.  Civil Appeal No. 335   of  1967  is  against  the  order  in  Special   Civil Application No. 1570 of 1962, in which the respondent is the Kalyan  Borough Municipality; and, Civil Appeal No.  336  of 1967  is against the order-in Special Civil Application  No. 1571  of  1962,  in  which  the  respondent  is   Dattatraya Pandurang Pimpale. During the pendency of the above appeals, Parliament enacted the  Electricity  (Supply) Amendment Act, 1966 (Act  XXX  of 1966)  (hereinafter called the Amendment Act), by which  the Supply Act was amended, in various particulars.  It is  only necessary  to  refer to two sections of the  Amendment  Act, viz.,  ss.  11  and  24.   Section  11,  substituted,   with retrospective  effect new s. 49, in the place of old s.  49. The new s. 49, runs as follows               "49.  Provision for the sale of electricity by               the Board to persons other than licensees.-               (1) Subject to the provisions of this Act  and               of  regulations, if any, made in  this  behalf               the Board may supply electricity to any person               not  being  a  licensee upon  such  terms  and               conditions as the Board thinks fit and may for               the  purposes  of such  supply  frame  uniform               tariffs. 142               (2)  In fixing the uniform tariffs, the  Board               shall  have  regard  to  all  or  any  of  the               following factors, namely : -               (a) the nature of the supply and the  purposes               for which it is required;               (b) the coordinated development of the  supply               and  distribution  of electricity  within  the                             State  in  the most  efficient  and  e conomical               manner,  with  particular  reference  to  such               development  in areas not for the time  ,being               served or adequately served by the licensee;               (c) the simplification and standardisation  of               methods  and  rates of charges for  such  sup-               plies;               (d)  the extension and cheapening of  supplies

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             of electricity to sparsely developed areas.               (3)  Nothing  in the foregoing  provisions  of               this section shall derogate from the power  of               the  Board,  if it considers it  necessary  or               expedient  to  fix different tariffs  for  the               supply of electricity to any person not  being               a licensee, having regard to the  geographical               position of any area, the nature of the supply               and  purpose for which supply is required  and               any other relevant factors.               (4)  In  fixing  the  tariff  and  terms   and               conditions for the supply of electricity,  the               Board  shall not show undue preference to  any               person." Section 24, of the Amendment Act, validating the  imposition and,  collection of charges for the supply  of  electricity, under s. 49, is, as follows "(1)  Notwithstanding any judgment, decree or order  of  any Court,  all rates fixed under section 49 of the  Electricity (Supply)  Act,  1948,  for the sale of  electricity  to  any person,  other  than a licensee before the  commencement  of this  Act shall be deemed to have been validly fixed  as  if the provisions of the said section, as amended by this  Act, had been in force at all material times when such rates were fixed and accordingly,- (a)  no  suit  or other proceeding shall  be  maintained  or continued in any Court for the refund of any 143               amount collected from any person on the  basis               of such rates;               (b)  no Court shall enforce a decree or  order               directing  the refund of any amount  collected               from such person on the basis of such rates.,               (c)  any  amount due from any  person  on  the               basis of such rates before the commencement of               this   Act  but  not  recovered  before   such               commencement  may be recovered in  the  manner               provided  under the Electricity (Supply)  Act,               1948.               (2)  For the removal of doubts, it  is  hereby               declared that nothing contained in sub-section               (1)  shall  be  construed  as  preventing  any               person from claiming refund of any amount paid                             by  him  in excess of the amount due from  him               under the said Act, as amended by this Act and               the rules or regulations made thereunder." In  view  of  the Amendment Act, this  Court  permitted  the parties to file affidavits, stating their case, with respect to the amended section 49, and gave an opportunity to  them, to raise their respective contentions.  The respondents have raised the contention that s. 24, of the Amendment Act, on a proper interpretation, does not validate the impugned  rates of  electricity supply, imposed on them, by  the  appellant. According  to them, on a proper interpretation of s. 49,  as amended, the Board is not empowered to fix uniform  tariffs, in such a way that a great part of the higher costs involved in the supply of electricity to sparse areas, is to be borne by  consumers  in developed or compact areas.  It  is  their further contention that, under the amended section,  uniform tariffs can, if at all, be levied by the Board, with  parti- cular  reference to the development in areas which are  not, for the time being served at all, or adequately served,  and it does not authorise the appellant to secure development of electricity  in  the  sparse  areas,  at  the  cost  of  the

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consumers   in  areas  which  are  already   developed   and adequately served, and hence the levy of the tariffs at  the amended rate, is unauthorised and illegal.  The  respondents further  contend  that  levy of  uniform  tariffs,  as  con- templated by s. 49(2), as amended, can be done only when the Board  fixes  uniform  tariffs,  for  the  whole  State   of Maharashtra.   In this connection. they point out, that  the appellant has not fixed uniform tariffs for the entire State of Maharashtra, but, on the other hand, has fixed  different tariffs, for different areas, for supply of electricity.  As an  instance of the Board itself levying different rates  in different  areas, the respondents have referred to the  case of Poona City, which was formerly served by the 144 Poona  Electricity Supply Company Ltd.  In Poona  City,  the respondents  point out, the Board has fixed a lower rate  of tariff., viz., 13 paise per unit of electricity, whereas  it has  fixed 31 paisa per unit in’ other areas, including  the Kalyan   Municipality  area.   It  is  the  claim   of   the respondents that the appellant should have fixed tariffs for the Kalyan Municipality area also, in the same manner as  it has  done for the Poona City area.  The Board  according  to them,  is not entitled to charge higher rate from  consumers in  the Kalyan Municipality area, in order to  give  cheaper supplies to other areas, in the western region.  It is their further  contention, that, under s. 49(2), as  amended,  the appellant  may charge lesser rate, than the cost  of  supply for  the  sparsely developed areas, but, in no  case  is  it entitled  to  charge the compact areas,  rates  higher  than warranted  by the cost of supply to such areas.  They  point out  that by charging consumers in compact areas  more  than the  cost of supply, the Board has shown  undue  preference. The  consumers, in the compact areas, are being made to  pay more  than what is due by them, i.e., more than the cost  of supply,   in  order  to  charge  less  from   consumers   in undeveloped areas, i.e., less than what is due by them,  and this offends sub-s. (4) of S. 49. The, respondents also contend that if S. 49, as amended, em- powers  the  Board to levy and collect, at the rate  of  the revised  tariff, s. 49 is unconstitutional and  void.   They point  out that by the Board charging consumers  in  compact areas  more  than what is due by them, i.e., more  than  the cost  of  supply,  it  was, in effect,  taxing  a  class  of consumers,  which it had no power or authority to do,  under the  Supply  Act,  as amended.  No maximum  limit  has  been fixed,  under the Supply Act, beyond which the Board  cannot charge, for electricity supplied by it.  They also point out that  the consumers, to whom electricity is supplied by  the Board, are treated differentially from the consumers who are supplied  electricity,  by  licensees.  In  respect  of  the latter class, they point out, that the Supply Art has placed several restrictions, regarding the manner in which the rate has  to  be  fixed, whereas there is  no  such  restriction, placed  on  the  powers  of  the  Board.   This  amounts  to discrimination,  resulting in Art. 14, of the  Constitution, being violated.  On these grounds, both the respondents urge that  the levy of uniform tariff, by the Board,  is  illegal and void. The appellant Board has controverted the stand, taken by the respondents.   According to it, the levy and  collection  at the  revised uniform tariff, is perfectly legal  and  valid, and s. 24, of the Amendment Act, in any event, has validated such.  levy.   The appellant points out that the  fixing  of uniform tariff  145

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is  authorised by s. 49, as amended; and such uniform  rates are  fixed, not with the intention of making  the  developed areas  bear  the  incidence of  higher  costs  of  supply_to undeveloped areas, but really with a view to achieve the  co ordinated development of generation, distribution and supply of  electrical energy, in the most efficient and  economical manner,  as  required by the Supply Act.  According  to  the Board, it is not necessary to fix one single uniform  tariff for the, whole State of Maharashtra, and that, on the  other hand,  it is empowered to fix region-wise  uniform  tariffs, having due regard to the provisions, contained in s.  49(2). In this connection, the Board also points out that both  the respondents  are consumers of electricity, at  low  tension, and that they are concerned only with tariffs for supply  of electricity  at low tension.  The Board further  avers  that since  April  1962, it has prescribed and  applied,  uniform tariffs for supply of electricity at low tension, in all the areas  in the State of Maharashtra, which are served by  it, except Poona area.  With reference to Poona area, the  Board has referred to the circumstances, under which a lower  rate of  tariff is levied.  Even in respect of Poona area, it  is stated  by the Board that it has introduced uniform  tariffs for  low  tension electricity, with effect from  January  1, 1966 except in regard to consumers of electricity for lights and fans and small power in residential buildings. Regarding  the attack, on the constitutional validity of  s. 49,  as  amended,  the Board points out  that  there  is  no question  of any taxing power being entrusted to  it,  under the said section.  The Board points out that in view of  the special circumstances under. which a licensee is  operating, certain provisions have been made in the Supply Act; but the special  position  occupied  by the Board,  which  has  been entrusted  with  various  duties  and  functions  has   been recognised  by  the Supply Act.  But  no  discrimination  as alleged  by  the respondents has been made  by  the  statute between consumers who are supplied by the licensee and  the, consumers who are supplied by the Board.  The Board further. states that the Supply Act does not cast any duty on to  the Board  to  fix the tariff, in accordance with  the  cost  of supply;  and it points out that what is necessary, under  s. 49,  is the taking into account of the over-all  economy  of the Board’s system of generation, and supply of electricity. The  Board seeks to sustain the levy of uniform  tariff,  on the basis of the various provisions of the Supply Act,  with particular reference to s. 49, as amended. In view of the Amendment Act, it has become really  unneces- sary to consider the correctness or otherwise of  the views, expressed  by the High Court, regarding s. 49, as  it  stood prior  to its amendment; and these appeals will have  to  be disposed  of,  on  a consideration of  the  Supply  Act,  as amended in 1966, with’ special reference to s. 49, as it now stands. 146 Two  questions  arise for consideration, in  these  appeals, viz.(i)   the proper interpretation to be placed, on s.  49, as amended,and the  power  of the Board to  levy  a  uniform tariff, as in this case; and (ii) the validity of S. 49,  as amended. It  is  necessary  to  state at this  stage  that  both  the respondents are consumers of electricity at low tension  and that the Board has fixed uniform tariff for the whole of the State  of  Maharashtra  for supply  of  electricity  at  low tension, except in Poona city in respect of certain types of consumers.  Even in respect of such consumers, the Board has stated that it is taking steps to levy a uniform tariff.  It

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is  on  this basis that the contentions of the  parties  are being considered and dealt with in these appeals. It  is  necessary  now  to refer to  some  of  the  relevant provisions  of  the  Supply Act as that  will  indicate  the scheme underlying the Act.  The Supply Act, as the  preamble shows,  is an Act to provide for the rationalisation of  the production  and supply of electricity, for  taking  measures conducive to electrical development.  Chapter 11 deals  with the  Central Electricity Authority.  Section  3(1)  provides for  the constitution by the Central ’Government of  a  body called  the Central Electricity Authority to  exercise  such functions  and perform such duties under the Supply Act  and in  such manner as the Central Government may prescribe  and direct.   Chapter  III  deals  with  the  constitution   and composition of the State Electricity Board and certain other incidental  matters.   Section  5  provides  for  the  State Government   constituting   a   State   Electricity   Board, hereinafter referred to as the Board.  Section 16 deals with the  constitution  by  the  State  Government  of  a   State Electricity  Consultative Council for the  State.   Sub-sec. (2)  deals  with the composition of  the  State  Electricity Consultative  Council.   It provides for inclusion,  in  the said Council of representatives of consumers of  electricity also.  Sub-section (6) casts a duty on the State Electricity Board  to place before the State  Electricity  Consultatitve Council  the  annual financial statement  and  supplementary statement  if  any.  A duty is also cast upon the  Board  to take into consideration any comments made on such  statement by  the  said Council before it is submitted  to  the  State Government under s. 16(1). Chapter  IV deals with the powers and duties of State  Elec- tricity  Boards.   Section  18 changes the  Board  with  the general duty of promoting the coordinated development of the generation,  supply and distribution of  electricity  within the State in the most efficient and economical manner,  with particular  reference to such development in, areas not  for the time being served or adequately served by any  licensee. Section  49  as incorporated by the Amendment  Act  of  1966 retrospectively, makes provision for the sale of electricity by the Board to persons other than 147 licensees.  As, in these appeals, the proper  interpretation to be placed on that section arises for consideration,  that section will: be dealt with by us more exhaustively, in  the latter part of the, judgment.  It is enough to note at  this stage  that  the  said section deals  with  the  framing  of uniforms tariffs and also of fixing different tariffs as the case  may  be, in accordance with the principles  laid  down therein. Chapter  VI  deals with the Board’s  finance,  accounts  and audit.  Section 59, leaving out the proviso, states that the Board  shall  not, as far as practicable, and  after  taking credit  for any subventions from the State Government  under s.  63, carry on its operations under the Supply, Act  at  a loss, and that it, shall adjust its charges accordingly from time  to  time.  Section 61 directs the Board to  submit  in February of each year to the State Government a statement in the  prescribed  form of the estimated capital  and  revenue receipts and expenditure for the ensuing year.,  Sub-section (3)  thereof makes it obligatory on the State Government  to place the said statement before the House or Houses, as  the case  may be, of the State Legislature and it also  provides that  the said statement shall be open to discussion by  the Legislature,,  but it is not subject to  vote.   Sub-section (4)  casts a duty on, the Board to take  into  consideration

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any  comments that may be made on the said statement in  the State Legislature.  It may be noted that s. 61 really  deals with  the  Board’s preparing its budget for  the  succeeding year  and making it available for discussions by  the  State Legislature.    Section  63  gives  power  to.   the   State Government,  with the approval of the State Legislature,  to make  subventions  from time to time to the  Board  for  the purposes  of  the Act on such terms and conditions,  as  the State Government may deter  mine.  Section 67 deals with the priority  and discharge Of liabilities by the Board and  how the balance amount, it any is to be utilised.  Section 70(2) provides that save as otherwise, provided, the provisions of the  Supply  Act  shall  be  in  addition  to,  and  not  in derogation  of , the Indian Electricity Act,  1910  (Central Act  X of 1910).  Section 75(1) deals with  the  preparation and  submission  to the State Government by the  Board  soon after  the  end of each financial year a  report  giving  an account  of  its activities during  the  previous  financial year.   The,  report  should also give  an  account  of  the activities, if any, which are likely to be undertaken by the Board  in  the  next  financial  year.  it  also  makes   it obligatory on the State Government to place the said  report before  the State Legislature.  Here again,it may be  noted, that  the Board has to give a report of its  activities  for the  past year.  Section 78 gives power to the,  State  Gov- ernment  to make rules. to give effect to the provisions  of the  Act.  One of the items in respect of which rules  could be  framed  is  that referred to in cl. (g) of s.  7  8  (2) namely the form in which, and’ 148 the  date by which, the annual report of the Board shall  be submitted  under s. 75.  The State Government in  this  case has framed the Maharashtra Electricity (Supply) Rules, 1963. Rule 57 thereof relates to the submission of annual  reports under  s.  75(1)  by the Board.  Sub-s.  (2)  indicates  the various matters that are to be included in the annual report that  is sent by the Board.  Item (q) of sub-r. (2)  relates to  details  of the tariffs of the Board  during  the  year. Therefore,  it will be seen, that in the annual report  that is sent under s. 75(1) by the Board to the State  Government and which report, as already referred, is placed before  the State  Legislature, the Board, among various other  matters, will have also to give details of the tariffs imposed by  it during the year.  Under S. 78A(1), the Board is to be guided in  the.  discharge of its functions by such  directions  on questions  of  policy,, as may be given to it by  the  State Government.    Section   79  enables  the  Board   to   make regulations not inconsistent with the Act and the Rules made thereunder.   One  of the matters which may  be  covered  by regulations  made  by the Board and to  which  reference  is necessary  to  be made, is dealt with under cl. (j)  to  the effect,  ’principles governing the supply of electricity  by the  Board  to persons other than licensees  under  ’Section 49". Now taking up the. first question arising-for consideration, namely, the power of the Board to levy uniform tariffs under s.  49  of the Supply Act as amended, Mr.  Poras  A.  Mehta, learned counsel for. the respondents, whose contentions have been also reiterated. by Mr. A. K. Sen, learned’ counsel for the  interveners, urges that in fixing the rate  of  tariff, one of the essential matters to be taken into account by the Board  is the cost of supply to particular areas  concerned. That  is in other words, according to the  respondents,  the tariff  must be based upon the cost of supply.  It is  their further  contention  that in fixing the  tariffs,  the  cost

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incurred by the Board for supply of electricity to different areas  must  be  given  due  consideration  and  importance. Extension  of electricity to sparse areas or to areas  which are not adequately supplied, should not be made at the  cost of,  and  to the detriment of, consumers of  electricity  in already  developed  or  compact areas.  It.  is  also  their contention that the Board may have, if at all, power to levy a  lesser  uniform rate of tariff in  undeveloped  or  spase areas,  and  any loss that may be incurred by the  Board  in that  regard will have to be compensated by the  subventions that may be received by the Board from the State  Government under  s.  63 of the Supply Act.  In no  case,  the  counsel points  out, can that burden be shifted to the consumers  in the  already  well-developed  areas.   By  levying   uniform tariffs in this case on consumers whose area is already well developed,  they are being made to pay for the  development. schemes  that are being carried out in sparse areas.   That, accord- 149 ing  to  them, is violative of sub-s. (4) of s.  49  by  the Board, in as. much as, the consumers of sparse areas to whom the  cost of supply is more, are enabled to pay at the  same rate  as those in compact areas.  In effect, they point  out that there has been undue preference to the consumers in the sparse areas in as much as, they pay much less than the cost of supply. The further stand taken on behalf of the respondents is that in  this  case, the question of imposing  different  tariffs should have been considered by the Board under sub-s. (3) of s.  49  in  view  of  the fact  that  the  compact  area  is geographically  different from. sparse area.   According  to them,  the rates should have been fixed more  favourably  in favour of the consumers in the compact area.  They also urge that sub-s. (4) of s. 49 which directs the Board not to show undue  preference  to any person in fixing the  tariffs  and terms and conditions for the supply of electricity,  governs sub-ss.  (1)  to (3) of s. 49 and-the Board, by  fixing  the same tariff in the sparse areas as in the compact areas, has shown   undue  preference  to  the  former  which   is   not permissible in, law. On  the  other hand, , Dr. L. M.  Singhvi,  learned  counsel appearing for the Board pointed out that there is absolutely no  indication in the Supply Act that the Board  should  fix its  tariff, having regard to the cost of  supply.   Counsel points  out that the Board is charged, under s. 1 8  of  the Act, with the duty of promoting the coordinated  development of generation, supply and distribution of electricity Within the  State  in  almost  efficient  and’  economical  manner. Normally,  the Board which is deemed to be a company,  under s.  80 of the Act, would be entitled to fix, its own  tariff for electricity supplied by it.  Under the old s. 49 of  the Act,  a general power was conferred on the Board  to  supply electricity  upon such terms and conditions as it may,  from time to time, fix, having regard, to the matters referred to in  that section.  The proviso to the said section  directed the  Board  not to show undue preference to  any  person  in fixing the tariffs.  Except this limitation in the  exercise of  its  power, the Board was not placed under  any  further restriction.   Section  49,  as  it  now  stands,  has  been incorporated with retrospective effect.  Under that section, the Board has been directed to frame uniform- tariffs.  ’The factors which are to be taken into account by the Board  for fixing uniform tariffs have also been indicated therein.  In particular  circumstances indicated therein, the  Board  has been  given  the power to fix different tariffs.   What  was

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originally the subjectmatter of the proviso in the old s. 49 has  now been incorporated in sub-s. (4) of s. 49.   Counsel points  out  that the question of showing  undue  preference cannot   arise  when  the  ’Board  fixes  uniform   tariffs. Therefore, sub-s. (4) can govern only sub-s. (3)  in     the matter of fixing different tariffs.  Sub-s. (4) cannot 150 cut  down  the  power given to the Board in  the  matter  of fixing uniform tariffs. Counsel  also  points out that going by the  phraseology  of sub-ss.  (1)  and (2) of s. 49, it is open to the  Board  to frame uniform tariffs having regard to the matters mentioned in sub-s. (2) of s. 49.  Counsel also points out that  there is no question of any development in sparse area being  made at the expense of the compact area.  Under cl. (d) of s.  49 (2), one of the factors to be taken into account for  fixing uniform  tariffs relates to the extension and cheapening  of supplies of electricity to sparsely developed areas.  If the Board  supplies  electricity at cheaper  rates  to  sparsely developed  areas,  the  compact areas  also  will  stand  to benefit,  because the cheap rates applicable to  the  former area  will  be a uniform tariff governing the  compact  area consumers   also.   There  is  no  question  of  any   undue preference being shown by the Board. We  have already referred to the material provisions of  the Act  which will show the nature of the duties cast upon  the Board  Section  59 lays down that. the Board,  after  taking subventions  from the State Government shall not, as far  as practicable,  carry  on its operations under the  Act  at  a loss,   and  that  the  Board  is  to  adjust  its   charges accordingly from time to time.  That means that cost has  to be  taken into account, though that is not the sole or  only criterion   for  fixing  the  tariff.   There  is  also   no indication in the Act that uniform tariffs can be fixed only in  respect  of  particular regions or areas.   We  are  not impressed  with  the contention of the  respondent  that  by uniform tariffs being levied by the Board, it is making more profits in compact areas than in sparse areas, nor with  the further contention that development of sparse areas is being done at the expense of compact areas. On behalf of the respondents, certain English decisions have been  brought  to our notice wherein the  expression  ’undue preference’  or ’discrimination’ found in the  corresponding Electricity Act have come up for consideration.  One of  the decisions is that of the House of Lords reported as South of Scotland Electricity Board and others v. British Oxygen  Co. Ltd.(1).  Section 37(8) of the Electricity Act,  1947  which the House of Lords had to construe provided :               "An  area board, in fixing tariffs and  making               agreements under this section, shall not  show               undue  preference  to any person or  class  of               persons  and  shall  not  exercise  any  undue               discrimination against any person or class  of               persons." (1) [1959] 2 All E.R. 225.  151 The  House of Lords held that in determining  whether  there has  been discrimination as between high  voltage  consumers and low voltage consumers, the lesser cost of supplying high voltage power should be taken into consideration, and  that, therefore,  there  might  be  discrimination  against   high voltage consumers notwithstanding that the price charged  to them  was  a little lower than that charged to  low  voltage consumers.   But  the English statute did  not  contain  any provision similar to s. 49 (1) and (2) of our Act, regarding

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the  fixation of uniform tariffs.  It is also seen  that  in that case, the question of costs appears to have been relied on  by  the Electricity Board.  In this  connection,  it  is pertinent  to  note  the observations of Lord  Reid  in  his dissenting judgment at p. 244 to the effect :               "What then is the standard by which preference               or  discrimination  is  to be  judged  ?   The               appellants  say price charged to the  consumer               and  the respondents say cost of supply.   The               Act  uses  these words in connexion  with  the               fixing  of tariffs which deal with prices  and               not with cost of supply, and one would  expect               these words in this context to refer to price.               Moreover,  prices  are easily  ascertained  by               inspection  of the tariff but costs of  supply               are not; their ascertainment probably involves               highly  contentious questions of  costing  and               the  like.   So if preference is a  matter  of               cost,  it would be impossible to tell  whether               there  is  any  preference  or  discrimination               until  an  elaborate  investigation  bad  been               made.’ The  above observations in the dissenting  judgment  clearly bring  out  the difficulty that will be felt  by  having  to judge  the  question of undue preference  or  discrimination with  reference to the cost of production.  But as  we  have stated  earlier  the  provisions in  the  English  Act  were entirely different. We  may also refer to another decision of the Privy  Council reported   in  Attorney-General  for  Victoria   v.   Mayor, Aldermen, Councillors and Citizens of Melbourne(1) in  which the  construction of S. 39 of the Victorian  Electric  Light and  Power Act, 1896 came up for consideration.  Section  39 of the said Act was as follows :               "The  undertakers  shall  not  in  making  any               agreements  for a supply of  electricity  show               any  preference  to  any  council  company  or               person and the charge for such supply shall be               uniform  throughout  such area  so  that  each               council company or person shall be supplied at               the  same  price and not less than  any  other               council (1)  [1907] A.C. 469. 152               company  or person, but such price  shall  not               exceed  the limits of price imposed by  or  in               pursuance  of  the order authorising  them  to               supply electricity." The Privy Council, in construing that section, held that the preference  prohibited therein is not as  between  customers dealing  under  two different systems ’but only  as  between customers  dealing under the same system.  Based  upon  this decision,  counsel  for the respondent argued  that  uniform tariffs under S. 49 of our Act can only be levied as against the  same  type of customers situated in the same  area  and that  uniform  tariff cannot be levied in, respect  of  same type  of customers situated in  a different  area.   Counsel further  urged that consumers regarding whom supply cost  is more  as in sparse areas, cannot be considered to be on  par with  consumers in compact areas in respect of  whom  supply cost is less.  It is further pointed out that if both  these types of consumers are treated as same, that will amount  to showing  undue preference, which is prohibited under  sub-s. (4)  of  S.  49.  In view of the wording of  s.  39  of  the Australian  Act,  the  reasoning of  the  Privy  Council  in

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construing the said section regarding the rule of uniformity cannot be applied when construing s. 49 of our Act.  But  it is  significant to note that as early as 1907, a  system  of levying  uniform  rates as indicated in S. 39  has  been  in vogue in Australia. After  having charged the Board under, s. 18 to  supply  and distribute electricity in the most efficient and  economical manner, as already pointed out, S. 59 states that the  Board shall  not, as far as practicable, carry on  its  operations under  the  Act at a loss.  Section 63  empowers  the  State Government to make subventions to the Board.  It is entirely within the discretion of the State Government under s. 63 to make  subventions  to the Board.  We ate referring  to  this aspect,  because  it  has been stressed  on  behalf  of  the respondents  that  any  development schemes  in  respect  of sparse  areas  should  be done by the Board  only  with  the subventions  which  the  State Government pays  and  not  by charging the consumers in the compact areas and sparse areas at uniform tariff. Section 49(1), as it now stands,’ provides that the Board is to  frame  uniform  tariffs  in  the  matter  of  supply  of electricity  to any person not being a licensee; and  sub-s. (2) lays down the factors which are to be taken into account by the Board in fixing uniform tariffs.  In this connection, it  is necessary to refer to the provisions of s. 49 of  the Act as it originally stood.  It was as follows               "Subject to the provisions of this Act and  of               any regulations made in this behalf, the Board               may supply 153 .lm15 electricity  to  any person not being a licensee  upon  such terms and conditions as the Board may from time to time  fix having regard to the nature and geographical position of the supply and the purpose for which it is required Provided  that in fixing any such terms and  conditions  the Board shall not show undue preference to any person." In the old s. 49 extracted above, there is-no such policy or direction indicated by the Legislature that the Board is  to frame  uniform tariffs.  Under that section, the  Board  had the power to supply electricity on such terms and conditions as  it  may  from time to time fix,  having  regard  to  the matters   referred  to  in  the  said  section.   The   only restriction  upon  the Board’s power was that it  shall  not show undue preference to any person in fixing any such terms and conditions.  In S. 49 as it now stands, the  Legislature has empowered the Board to frame uniform tariffs and it  has also  indicated  the  factors to be taken  into  account  in fixing uniform tariffs.  These two aspects are. contained in sub-ss. (1) and (2).  The Legislature has also made it clear in  sub-s. (3) that the Board, in the special  circumstances mentioned  therein, has got power to fix  different  tariffs for the supply of electricity’ Sub-s. (4) directs the  Board not  to show undue preference to any person for  fixing  the tariffs  and  the, terms and conditions for  the  supply  of electricity.  Though prima facie it would appear that sub-s. (4) will govern sub-ss. (1) to (3) in s. 49, the proper  way to interpret sub-s. (4) will be to read it along with sub-s. (3). The  question of the Board showing undue preference  to  any person  in fixing the tariffs and terms and  conditions  for supply  of electricity will not arise when the Board  frames uniform tariffs under sub-ss. (1) and (2).  When the  entire tariff  is uniform for every consumer, there is no  question of any undue preference as every customer will pay the  same

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amount for the same benefit received by him.  Sub-s. (3)  of S.  49  recognises the power of the Board to  fix  different tariffs for the supply of electricity and it is really here, if  at all, that an occasion for any undue preference  being shown,  may  arise.  Therefore, in our opinion,  sub-s.  (4) will control the action of the Board under sub-s. (3) of  S. 49.   We  are not inclined to accept the contention  of  the respondents  that the consumers in a compact area cannot  be treated as on par with the consumers in sparse area and that uniform tariffs cannot be levied on both.  In this case,  we have already referred to the fact that both the  respondents are  consumers of low tension electricity and  that  uniform tariffs have been levied for the entire State of Maharashtra excepting certain types of consumers in L4Sup.C.1/68-11 154 Poona  area.   To conclude we are of the opinion,  that  the Board  had ample powers to frame uniform tariffs as  it  has done in the case before us and the levy is valid. The  second  question  that  arises  for  consideration,  as indicated  earlier,  relates to the validity of  s.  49,  as amended.  The attack on the validity of this section is made under different heads, as indicated below. The  first  ground of attack is that levying  of  a  uniform tariff  on the consumers in sparse areas and  consumers,  in compact areas, which is not directly related to the cost  of supply, amounts to a colourable exercise of taxing power  by Parliament.  In this connection, it is stated that the power to  levy  tax on the consumption or sale of  electricity  is conferred under entry 53 List 11 of the 7th schedule on  the State  Legislature.  This attack is made on the  basis  that the  tariff levied by the Board must be related to the  cost of  supply.  We have already rejected the contention of  the respondents  in this regard; and we have held that the  cost of  supply  is  only one of the factors  to  be  taken  into account  in fixing the tariff.  If that is so,  it  follows, that in this case,, there is no question of any levy of  tax by Parliament through the medium of the Board.  By reference to  the proviso to sub-cl. (b) of cl. (10) of s. 67,  it  is further  urged  by the respondents that the  Board  may  fix tariffs  in  such a way that large surplus may be  found  by them  from  which one-half will be credited  to  the  conso- lidated  fund of the State.  This action, according  to  the respondents,  amounts to levy of tax for which there  is  no power in law.  We are not inclined to accept this contention either.   Section  67  of the Supply  Act  which  occurs  in Chapter  VI  relating to the Board’s finance,  accounts  and audit,  deals  with priority of liabilities  of  the  Board. After  meeting  its operations, maintenance  and  management expenses and providing for the payment of tax on its  income and  profits, s. 67 provides for the revenues of the  Board, in  so far as they are available, to be distributed  in  the order  mentioned in cls.  1 to 10.  After  adjustments  have been made in respect of cls. 1 to 9, cl. 10 provides for the balance  to  be  appropriated to a fund  to  be  called  the ’development  fund’.   Clause 10 further provides  that  the development  fund  is to be utilised for two  purposes,  (a) purposes  beneficial,  in  the  opinion  of  the  Board,  to electricity development in the State; (2) repayment of loans advanced  to the Board under s. 64 and required to be  paid. It  is  after this that the proviso, on  which  reliance  is placed by the respondents, states that where no such loan is outstanding,  one-half of the balance shall be  credited  to the  consolidated  fund  of  the  State.   In  the  counter- affidavit  filed on behalf of the Board, it has been  stated that  ever since its constitution, it has been  carrying  on

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its operations at a loss and there has been  155 no occasion when any part of its revenues has been passed to the  consolidated fund of the State.  We have no  hesitation to accept this statement made on behalf of the Board.   Even otherwise, before the proviso can come into operation, there are several other items in respect of which adjustments will have  to be made, and there will be no occasion at  all  for the  proviso to come into effect.  We are also not  inclined to accept the contention of the respondents that with a view to  give effect to the proviso,’ the Board will so  fix  the tariffs  as  to  enable them to  have  huge  surplus,  after meeting the various adjustments.  In case such a thing  hap- pens  in future the proviso which is clearly severable,  may have  to be struck down.  Therefore, this ground of  attack, that there is a colourable exercise of taxing power,  cannot be accepted. The next ground of attack against s. 49 is that it gives  an unguided and arbitrary power to the Board to fix the  tariff as  it likes, and no maximum limit for the tariffs that  may be fixed by the Board, has been stated.  On first blush,  it may appear that this contention has considerable force;  but we  are satisfied that no such unguided or  arbitrary  power has  been  conferred on the Board either in  the  matter  of framing uniform tariffs or in the matter of fixing different tariffs  for  the supply of electricity to any  person,  not being  a licensee.  No doubt, the maximum as such,  has  not been  fixed in the statute.  But, in our opinion, there  are sufficient restrictions placed upon the power of the  Board. In  this  connection, reference may be made to some  of  the sections of the Supply Act.  Section 16, as we have  already indicated, provides for the State Government constituting  a State Electricity Consultative Council for the State.   That Council  consists  of  the representatives  of  the  various interests   including   representatives  of   consumers   of electricity.   The Board is bound to place before the  State Electricity Consultative Council under sub-s. (6) the annual financial  statement and supplementary statement and a  duty is  cast upon the Board to take into consideration any  com- ments  made  on  such  statement.   This  annual   financial statement  will  have  then to be  submitted  to  the  State Government  under s. 61. Under that section, in February  of each  year, the Board has to submit to the State  Government an annual financial statement in the prescribed form, of the estimated  capital and revenue receipts and expenditure  for the  ensuing year.  Thai statement, under sub-s. (3) has  to be  placed  before the State Legislature and it is  open  to discussion.  Again, sub-s.. (4) of S. 61 casts a duty on the Board  to take into consideration, any comments made on  the said  statement in the State Legislature.  Section 75  again provides for the Board submitting to the State Government  a report  giving  an  account of  its  activities  during  the previous financial year as also an account of its activities which  are  likely  to  be undertaken  by  it  in  the  next financial  year.  The State Government is to place the  said report before the State Legislature.  We 156 have already indicated, by reference to r. 57 cl. (q) of the rules  framed  by the State of Maharashtra that  details  of tariff will have to be furnished by the Board in its  annual report.  Under cl. (j) of s.79, tile Board has also to  make regulations laying down the principles governing the  supply of  electricity by it to persons other than licensees  under s. 49.  In our opinion, all these provisions have the effect of  properly  guiding the activities of the  Board,  in  its

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dealings  with the consumers including the levy of  tariffs. Section  49 itself is hedged in by various restrictions  and directions which the Board will have to comply in the matter of  framing  uniform  tariffs or in  the  matter  of  fixing different  tariffs, and that section, also in  our  opinion, provides a proper guide-line for framing uniform tariffs and different  tariffs.   Therefore, in particular,  it  may  be noted  that  the  extension and cheapening  of  supplies  of electricity to sparsely developed areas under cl. (d) of  s. 49(2)  of the Act can only be complied with by  keeping  the uniform   rates   at  a  minimum,  consistently   with   the requirement,  under  s.  59,  of  not  running  at  a  loss. Therefore,  we are satisfied, that s. 49 is not in any  way, bad  on the ground that it gives, an unguided and  arbitrary power to the Board to fix its tariffs as it likes. The next ground of attack is that consumers who are supplied electricity  by the licensees are differently  treated  from similar  consumers  under the Board.   In  this  connection, reference is made to s. 57 of the Supply Act which  provides for the 6th and 7th schedule to be deemed to be incorporated in  the  licence of every licensee.  Clause 1 of  the  sixth schedule  provides  that the licensee shall  so  adjust  his charges for the sale of electricity, whether by enhancing or reducing  them that his clear profit in any year of  account shall not, as far as possible, exceed the amount of  reason- able return.  It is argued that while restrictions have been placed  on  the licensees, no such  restrictions  have  been placed  on the Board.  The distinction sought to be  pointed out,  in  our opinion has no substance.  The  licensees  are persons  who must have invested considerable capital in  the matter  of  their business, and obviously,  the  Legislature thought that some directions will have to be given so as  to enable  them  to  have a reasonable  return.   But  we  have already  indicated  that sufficient guidance has  been  laid down  in  the  matter of fixing of  tariffs  by  the  Board. Therefore this ground of attack also cannot be sustained. Therefore,  both  the  grounds of attack,  levelled  by  the respondents, will have to be rejected. On  behalf of the respondents, a feeble attempt was made  to show  that S. 24 of the Amendment Act has not validated  the levy  and  collection  in these  cases.   According  to  the respondents, in this case, there is nothing to show that the provisions of S. 49, as  157 amended,  which  is  deemed to have been  in  force  at  all material times, have been complied with by the Board  before the  levy  was made, and therefore, the levy  in  this  case cannot  be  sustained.  We are not inclined to  accept  this contention of the respondents.  Section 24 of the  Amendment Act,  in  our opinion, deals with all rates as a  matter  of fact fixed under s. 49 of the Act.  In this case, the  Board has fixed tariffs under S. 49 of the Act.  Therefore, s.  24 of the Amendment Act has full effect and force. The  result is that all the contentions of  the  respondents fail.   The  order-of the High Court, under  attack  is  set aside  and these two appeals are allowed.  As the  appellant succeeds in both these appeals on the basis of the Amendment Act, parties will bear their own costs throughout. Y.P.                               Appeals allowed. 158