THAKKAR, J. - (1.) A 10 -year old battle is raging around the question as regards the legality and validity of an order April 30, 1964 (Annexure 'H') made by the State Electricity Board constituting a rating committee to examine the charges for the supply of electricity fixed by a licensee (petitioner) under the Indian Electricity Act, 1910. The rating committee was constituted by respondent No.1 Gujarat Electricity Board (Board) in exercise of powers under Section 57 -A of the Electricity (Supply) Act, 1948 (Act) on the ground that the Board was satisfied that the licensee (petitioner) had failed to comply with the provisions of Sixth Schedule of the Act. Upon the constitution of the rating committee, the Ahmedabad Electricity Co. Ltd., the licensee under the Act, instituted the present petition under Article 226 of the Constitution of India with the end in view to challenge the legality and validity of the impugned order (Annexure 'H') dated April 30, 1964 constituting the rating committee and to obtain incidental and consequential reliefs. The principal question which clamours for solution is, therefore, whether or not the impugned order constituting the rating committee is valid.
(2.) IT will be appropriate to trace a short history of the litigation before coming to grip with the main issue. The impugned order constituting the rating committee was challenged on numerous grounds. One of the principal contentions was that before the constitution of the rating committee on April 30, 1964 the petitioner Company had already made a reference in regard to the identical dispute or difference between the parties to the arbitration of the competent authority specified in paragraph XVI of the Sixth Schedule and that the pendency of the reference so made as per Annexure 'D' dated April 6, 1964 would operate as a bar to the constitution of the rating committee. This contention found favour with a Division Bench of this High Court before whom the petition came up. The Division Bench accordingly by its judgment and order dated December 15, 1964 allowed the petition solely on this point without entering upon an examination of the various other contentions raised by the petitioner Company and quashed the impugned order dated April 30, 1964 constituting the rating committee. The first respondent Board approached the Supreme Court of India by way of Civil Appeal No. 1797 of 1964 and called into question the aforesaid decision of the Division Bench rendered on December 15, 1964. The Board canvassed before the Supreme Court the proposition that the pendency of a reference before the competent authority for arbitration in terms of paragraph XVI of Sixth Schedule would not operate as a bar on a true interpretation of the relevant provisions including second proviso of Section 57 -A of the Act and paragraph XVI of the Sixth Schedule of the Act. And taking into account the principle laid down in the Amalgamated Electricity Co. Ltd. v. N.S. Bathena, AIR 1964 SC 1593, the Supreme Court upheld the contention of the Board and allowed the appeal on forming the opinion that the existence of a dispute between the Board and the licensee and the existence of a reference to arbitration made by the licensee would not attract the embargo embodied in the aforesaid provision having regard to the fact that what was contemplated by the Act was the existence of a dispute or difference between the State Government on one hand and the licensee on the other and a reference to arbitration stemming therefrom and not the existence of a dispute or a difference between the Board and a licensee. The Supreme Court under the circumstances allowed the appeal and set aside the order of the Division Bench rendered on December 15, 1964 quashing the constitution of the rating committee. Since the Division Bench which disposed of the petition giving rise to the appeal before the Supreme Court had not decided the other points raised by the petitioner, the Supreme Court remanded the matter to the High Court for disposal in accordance with law. For the sake of preciseness, the operative portion of the order of the judgment and order of the Supreme Court deserves to be quoted. It runs as follows: - "We have, therefore, to conclude that the finding of the High Court on which relief was given to respondent No. 1 cannot be sustained in law, It appears that some other issues had been also raised before the High Court but they were not dealt with in view of the finding recorded. The parties, therefore, are agreed that the case will have to go back to the High Court for disposal in accordance with law after considering the other issues raised in the Special Civil Application. Accordingly the case is remanded to the High Court for disposal. The costs shall be costs in the cause." That is how this petition has made its way back to this High Court for being disposed of in the light of the directions of the Supreme Court. It is now time to briefly recount the events leading to the institution of the present petition. The seeds of trouble were sown on September 11, 1963 on which day the petitioner gave intimation to the State Government and the Chief Engineer of the Board of its intention to enhance the charges for the supply of electricity in respect of certain class of consumers with effect from November 16, 1963 on the ground that on the basis of the current rate structure the "clear profit" as defined in paragraph XVII, clause (2) of Sixth Schedule of the Act was expected to fall short of "reasonable return" as defined in clause (9) of paragraph XVII of Sixth Schedule. This intimation was given in compliance with the requirements of the relevant provision of the Act on September 11, 1963. It evoked a hostile response on the part of the Board as reflected in Annexure 'B' dated March 7, 1964, a notice under the first proviso to sub -section (1) of Section 57 -A of the Act to show cause after the expiry of thirty clear days from the receipt of the notice as to why the proposed action of constituting a rating committee should not be taken by the Board. This show cause notice was issued subsequent to the enhancement of the electricity charges in regard to certain categories with effect from November 16, 1963 in pursuance of intimation given to the Board under Annexure 'A' dated September 11, 1963. The show cause notice was mainly grounded on two circumstances. First, that the "clear profit" of the Company for the year commencing from 1st April 1963 "has exceeded" the amount of reasonable return permissible under the relevant provisions of the Act read with Sixth Schedule thereto. The second ground incorporated in the show cause notice was to the effect that the petitioner Company had made special appropriations in its accounts for past three years (for 1959 -60, 1960 -61 and 1961 -62) without obtaining the permission of the State Government and that thereby the Company had failed to comply with the provisions of paragraph XVII (2) (c) (vi) of the Sixth Schedule to the said Act. In the course of the said show cause notice the Board expressed its satisfaction that the "clear profit" of the petitioner Company in the year 1963 -64 "must exceed" the amount of reasonable return by reason of the enhancement of the charges which came into force with effect from November 16, 1963 and that the Board was satisfied that the Company had failed to comply with the provisions of Part I of the Sixth Schedule to the said Act as also had failed to comply with the provisions of paragraph XVII (2) (c) (vi) of the Sixth Schedule.
(3.) THE petitioner Company replied to the show cause notice and explained its point of view by Annexure 'C' dated March 26, 1964. The explanation was considered unsatisfactory by the Board as disclosed by its communication dated April 30, 1964 (Annexure 'C') addressed to the petitioner Company and on the same day i.e. April 30, 1964 the Board constituted a rating committee under the impugned order (Annexure 'H') and that has given rise to the present petition.;