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PETITIONER: NEW CENTRAL JUTE MILLS CO. LTD.

       Vs.

RESPONDENT: UTTAR PRADESH ELECTRICITY BOARD, LUCKNOW & ORS.

DATE OF JUDGMENT19/11/1986

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) RAY, B.C. (J)

CITATION:  1987 AIR  364            1987 SCR  (1) 331  1986 SCC  Supl.  581     JT 1986  1107  1986 SCALE  (2)1250  CITATOR INFO :  R          1989 SC 788  (32,35)

ACT:     Indian  Electricity  Act, 1910 s.  22(B)and  Electricity Supply  Act,  s. 49(3)-Electricity drawn in  excess  of  the permissible  limit--Levy  of surcharge at the  rate  of  5.5 paise per unit-- Validity and legality of.

HEADNOTE:     The  Appellant-Company, in a writ  petition,  challenged the order passed by the respondent--Electricity Board  levy- ing surcharge of 5.5 paise per unit on electricity drawn  by the  Company in excess of the permissible 70% authorised  by the  State  Government. The writ petition having  been  dis- missed by a Single Judge of the High Court and the  Division Bench having confirmed the decision, the appellant  appealed to this Court.     In the appeal, it was contended; (i) that the Electrici- ty  Board had no authority to charge 5.5 paise per  unit  in excess of the agreed rate without giving one month’s  notice as contemplated by the agreement; and (ii) that the levy  of the surcharge resulted in retrospective levy and was  there- fore not in accordance with law. Dismissing the appeal,     HELD:  1. The Electricity Board had the legal  authority to levy and collect surcharge of 5.5 paise per unit from the appellant  in regard to the supply of electricity in  excess of  the  70%  authorised in the context of s.  22-B  of  the Indian Electricity Act, 1910. [334 C]     2. The agreement itself does not envision the supply  of electricity  in  violation of the ban imposed by  the  State Government in exercise of the power under s. 22B of the Act. [333 G-H]     3.1  Section 49(3) of the Electricity Supply Act  autho- rises  a Board to supply electricity by  charging  different tariff  having  regard to the geographical position  of  the area, the nature of the supply, purpose for which the supply is  required  and any other relevant factors,  and  is  wide enough  to cover a situation where electricity in excess  of the  authorised  quantum is drawn in disregard  of  the  ban imposed in view of the shortage of the supply under s.  22-B

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of  the  Indian  Electricity Act, 1910 as also  to  cover  a situation where at the express request of 332 the  consumer electricity is purchased from some  other  au- thority and is supplied. [334 D, B]     3.2 The combined effect of s.49 and the terms and condi- tions  of  supply  is that having regard to  the  nature  of supply and other relevant factors particularly when there is shortage  of electricity the Board has the power to  enhance the  rates.  If there is shortage of  electricity  there  is justification to impose restriction on supply. The Board can also impose higher rates by way of sanction if the quota  is exceeded. [334 E]     Adoni  Cotton  Mills etc. v. The  Andhra  Pradesh  State Electricity Board and Others, [1977] 1 SCR 133, relied upon.     In the instant case, having regard to the fact that  the supply  was made after obtaining it from the Damodar  Valley Corporation  at a higher rate and having further  regard  to the  fact that the impost of the surcharge is  construed  as having been made under the statutory authority, the stipula- tion in the agreement does not come into play. [335 A-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 812 of 1973.     From  the  Judgment  and Order dated  18.2.1970  of  the Allahabad High Court in Spl. Appeal No. 1032 of 1968.     G.L.  Sanghi, K.K. Jain, Pramod Dayal, A.D.  Sangar  and Bishambar , Lal for the Appellant. Gopal  Subramanium and Mrs. Shobha Dikshit for the  Respond- ents. The Judgment of the Court was delivered by     THAKKAR,  J.  The appellant  invoked  the  extraordinary jurisdiction  of  the High Court under Article  226  of  the Constitution of India in order to challenge the order passed by  the  respondent--U.P. Electricity Board levying  a  sur- charge  of  5.5 paise per unit of electricity drawn  by  the appellant  in excess of the permissible 70 per  cent  autho- rised by the State Government. State Government had  imposed a  ban on drawing electricity in excess of 70% per  cent  of the  consumption in exercise of powers under Section 22B  of the Indian Electricity Act of 1910 having regard to the fact that  on  account of short-fall of rain  the  generation  of electricity  had  been  adversely affected and  it  was  not possible  to supply electricity to the consumers as per  the demand. The learned Single Judge of the High Court dismissed the Writ Petition inter alia on the 333 ground  that the equities were against the  appellant  (writ petitioner)  in view of the fact that  the  respondent-Board had  purchased electricity from the Damodar Valley  Corpora- tion (D.V.C.) at the rate of 4.57 per unit in order to  make available the electricity as per the demand of the appellant and  other  industrial  units at  their  request.  Says  the learned Single Judge:--               "It  appears to me that there are no  equities               in  favour  of  the petitioner,  and  on  this               ground also, the petitioner is not entitled to               any  relief. The petitioner factory and  other               industries had requested the State  Government               and the Board to augment supply of  electrical               energy by obtaining it from the Damodar Valley               Corporation and other sources and has  offered               to  pay  additional expenses which  the  State

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             Government  or the Board might have  to  incur               for it. In order to accommodate the petitioner               factory  and other industries the State   Gov-               ernment  and  the Board did not  exercise  the               power  to  disconnect  their  connections  and               obtained  electrical energy from  the  Damodar               Valley Corporation and had to pay certain sums               of money therefore. They were certainly  enti-               tled  to recover those amounts from the  peti-               tioner factory and other ’industries. It  does               not lie in the mouth of the petitioner now  to               say  that the Board is not entitled to levy  a               surcharge  for  recovery of the  amount  which               they have spent in obtaining extra  electrical               energy from the Damodar Valley Corporation". The Division Bench has confirmed the decision of the learned Single Judge.     Two  contentions  have  been urged in  support  of  this appeal.  The first contention is that the Electricity  Board had  no authority to charge 5.5 paise per unit in excess  of the agreed rate without giving one month’s notice as contem- plated  by the agreement. The second contention is that  the levy  of the surcharge resulted in a retrospective levy  and therefore, it was not in accordance with law.      So for as the principal contention is concerned we  are unable  to  accede to the submission that the Board  had  no legal  authority to levy 5.5 paise surcharge in  respect  of the  supply in excess of the 70 per cent authorised by  the, State Government. The agreement itself does not envision the supply of electricity in violation of the ban imposed by the State Government in exercise of the power under section 22-B of the Indian Electricity Act, 1910. Nor does the  agreement stipulate  the rate at which  such supply should be  charged if  not-withstanding the ban against the supply, a  consumer draws electricity in excess of the 334 permissible  quantity. Thus the agreement is silent on  this aspect.  Therefore, the Board was justified in invoking  its power  under  section 49(3) of the Electricity  Supply  Act, 1948  which  authorises  a Board to  supply  electricity  by charging a different tariff having regard to the  geographi- cal position of the area, the nature of the supply,  purpose for  which  the supply is required and ’any  other  relevant factors: Section 49 (3) of the Act is wide enough to cover a situation  where  electricity in excess  of  the  authorised quantum is drawn in disregard of the ban imposed in view  of the  shortage of the supply position in the face of the  ban imposed  under Section 22-B of the Indian  Electricity  Act, 1910  as  also  to cover a situation where  at  the  express request  of the appellant (as per the averment contained  in the affidavit filed on behalf of the respondent) electricity is purchased from some other authority (in the present  ease from  D.V.C.)  and  is supplied to the  consumers.  We  are, therefore,  of the view that the electricity Board  had  the legal  authority to levy and collect surcharge of 5.5  paise per  unit  from  the appellant in regard to  the  supply  in excess  of  the  70 per cent authorised in  the  context  of section  22-B  of the Indian Electricity Act, 1910.  We  are buttressed in this view by a decision of this Court in Adoni Cotton  Mills etc. v. The Andhra Pradesh  State  Electricity Board  &  Ors., [1977] 1 S.C.R. page 133.  In  Adoni  Cotton Mills’case the view has been taken that the power to enhance the  tariff  is included in section 49 of the 1948  Act  and that  section  49(3)  authorises a Board  to  fix  different tariffs  for the supply of electricity having regard to  the

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geographical  position etc and any other  relevant  factors. The  expression  ’any other relevant factors’ is not  to  be construed  ejusdern generis and that the combined effect  of Section  49 and the terms and conditions of supply  is  that having  regard  to the nature of supply and  other  relevant factors  particularly when there is shortage of  electricity the  Board has the power to enhance the rates. If  there  is shortage of electricity there is to be restriction on supply and the Board can disconnect supply if the quota is  exceed- ed.  The Board can also impose higher rates if the quota  is exceeded.  The imposition of higher rates is only to  "sanc- tion  the rigour of ration by making persons who exceed  the quota liable to pay higher rates." We are, therefore, of the opinion that so far as the first point is concerned the view taken  by the High Court cannot be taken exception to.  With regard to the retrospective effect argument, the electricity was  supplied from November, 1966 till February 20, 1967  on which date the notification imposing the levy was issued. It was, therefore, urged that so far as the period anterior  to February 20, 1967 is concerned the effect of the levy  would be retrospective. The High Court’has taken the view that  it does  not amount to making the tariff retrospective but  the effect  of the notification is to recover the  surcharge  in respect  of the energy which was supplied in excess  of  the permissible  quota. It was also urged on behalf of  the  re- spondents that in so far as the period anterior to  February 20,  1967  was concerned the appellant was not  entitled  to make the recovery as it would amount to altering the tariff. This argument was advanced in the context of the stipulation in the agreement that 335 one  month’s  notice would be given  before  increasing  the tariff.  Since  we are of the view that the  Board  had  the statutory  authority to impose the surcharge in  respect  of the electricity supplied in excess of the permissible  quota and having regard to the fact that the supply was made after obtaining  it  from the D.V.C. at a higher rate  and  having further regard to the fact that the impost of the  surcharge is construed as having been made under the statutory author- ity  the  stipulation in the agreement does  not  come  into play. Under the circumstances, we do not see any good ground to  disturb  the findings recorded by the  High  Court.  The appeal  therefore, fails and is dismissed. There will be  no order as to costs. A.P.J.                                                Appeal dismissed. 336