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PETITIONER: U.P. ELECT. BOARD THROUGHITS CHAIRMAN & ANR.

       Vs.

RESPONDENT: M/S. TRIVENI ENGG. WORKS LTD.

DATE OF JUDGMENT:       12/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (5)    24        1996 SCALE  (4)165

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel for the parties.      This appeal  by special  leave arises from the judgment and order  dated May  4, 1995 made in W.P.NO.23865/90 by the High Court  of Allahabad.  The admitted  facts are  that the respondents had  entered into an agreement for the supply of electrical energy,  initially of  104 KW. The load was mixed type load  for industrial  purpose as  well as for light and fans of  the factory  under clause  [8]  of  the  agreement. Section 48  of the  Electrical Supply Act, 1948 empowers the Board to  revise the  tariffs from  time to time. One of the conditions under clause [8] read as under:      "8(a) The  Consumer shall  pay  for      the supply  of electric  energy  at      the rates  enforced by the Supplier      from  time   to  time   as  may  be      applicable to the Consumer.      Provided  that   in  the  event  of      alternative rates  being  available      for  that  category  of  load,  the      consumer shall  have the  option to      choose the  tariff that  suits  him      best.      (b) The rate Schedule applicable to      the  consumer   at  the   time   of      execution  of   this  agreement  is      annexed hereto as Annexure.      (c)   The   rate   schedule   above      mentioned met  at the discretion of      the Supplier,  be  revised  by  the      Supplier from  time to  time and in      the  case   of  revision  the  rate      schedule  so   revised   shall   be      applicable  to  the  consumer  from      such date  as  may  be  general  or

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    special order  be notified  by  the      Supplier.      Under clause  [8] read  with Section 48, the appellant- Board has  the power to revise the tariffs fron time to time for supply of electrical energy. In exercise thereof on July 13, 1986  the Board  revised the  tariffs and deleted LMV-10 and substituted  various items  for the  deleted tariffs. As far  LMV-10   is  concerned,   there  is   no  corresponding substitution under the amended tariffs. By operation of rate schedule for  HV-2, "large  and heavy power", it is provided for any  other power  consumption to  enter under  any other rate "schedule" HV-2 becomes applicable.      It is an admitted position that on October 10, 1989, at the request  of the  respondent, 104 KW of electrical energy was increased  to 404 KW and a separate contract was entered into for  payment of  rates  under  the  tariff.  The  above revised rates  would apply  from that date. The only dispute is with reference to the rate applicable for the electricity supplied between  August 1,  1986 to  October 9, 1989. It is the contention  of the  respondent-industry that  in view of the deletion  of LMV-10, the rate of schedule must be LMV-2. As a  consequence, the  appellant has no power to charge the respondent at  the HV-2  rate. That  contention found favour with the  High Court.  The High Court came to the conclusion that since  the agreement  had become effective from October 10, 1989,  the respondent  had no  right to  charge for  the previous supply.  It is not covered under the agreement. The High Court  was not  right in reaching the conclusion. It is seen that under the contract entered into by the respondent, they are  liable to  charge consumption  of  the  electrical energy as  per the rates provided in LMV-10. On its deletion w.e.f. July  31, 1986  for the  electricity consumed  by the respondent,  one  of  the  rates  applicable  should  be  as provided in  the tariff.  It is  seen that LMV-2 is only for commercial  establishments.   Since  the  respondent  is  an industrial unit, obviously HV-2 would stand applicable only. Since there  is no express contract between the parties, the residuary power  in HV-2  stands attracted.  Accordingly the respondent is  liable to pay the charges for the electricity consumed between  August 1,  1986 and  October 9, 1989 under HV-2 Rates.  We are  informed that  from February, 1986 till July 31,  1986, the bill also has been given for the payment of  the   charges  under   HV-2  rates.  This  is  obviously incorrect. They  are liable  to charge  only at the previous rates from the period from February 1986 till July 31, 1986, the date  on which  the revision was effected. The appellant is, therefore,  directed to  revise the bill accordingly and make a  fresh demand  for payment.  On demand  so made,  the respondent is  at liberty to pay the same within a period of six months from the date of the receipt of the demand.      The appeal is accordingly allowed. No costs.