Decided on June 21,1954



- (1.)This second appeal arises out of a suit field by certain residents of the town of Chopda in the District of East Khandesh against the Chopda Electric Supply Company, Ltd., for a declaration that a 'standing charge' of Rs. 2 for every 25 K.W. sought to be levied by the Chopda Electric Supply Company, Ltd., which I will hereafter refer to as the defendant-company, from every consumer of electricity for domestic or general use was illegal and for an injunction restraining the defendant-company from discontinuing the supply of electricity for non-payment of the charge and for costs of the suit. The suit was filed under Order 1, Rule 8, Civil P. C., as a representative suit on behalf of all consumers for domestic use in the town of Chopda.
(2.)The learned trial Judge decreed the plaintiffs' suit. In appeal to the District Court at Jalgaon the appeal filed by the defendant-company was allowed and the plaintiffs suit was dismissed. Plaintiffs Nos. 1 and 3 have, come to this Court in second appeal.
(3.)A few facts which give rise to the appeal may be stated. In 1936 a license for supplying electrical energy in the town of Chopda was issued to one. Fakir-chand Jankiram by order of the Government of Bombay. The license was transferred from time to time and finally on 21-8-1938, it was assigned to the defendant-company. Clause 9 of the license set out the limits of rates to be charged by the defendant-company for supply of electrical energy. The material clause relating to levy of charges is Clause 9(A). In so far as it is relevant, it provides: 'The rates to be charged by the licensee for energy supplied by him shall not exceed the maxima set out below: (A) Where energy is supplied by meter--(1) for general supply purpose, namely (a) for lights and fans not provided for in Hem ,(b) below,--a rate of Annas 6 per unit; ....(c) for heating and refrigerating purposes--a rate of Annas 2 per unit." Under Sub-clause (4) of Clause 9 the defendant-company was authorised to charge meter rent not exceeding annas 8 per month for a Single Phase A.C. meter. This license was issued by the Government of Bombay in exercise of the power conferred by the Electricity Act of 1910. The Central Government passed the Electricity (Supply) Act (54 of 1948) with a view to provide 'for the rationalisation of the production and supply of electricity and generally for taking measures conducive to the electrical development to the State of India and for incidental matters. By Section 70(2) of the Act 54 of 1948 it was provided that save as otherwise provided in the Act the provisions of the Act shall be in addition to, and not in derogation of, the Electricity Act of 1910. The defendant-company assuming that by Act 54 of 1948, restrictions which were placed under the license and by the Electricity Act of 1910 upon the right of the licensee to levy rates and charges from consumers of electrical energy were abrogated, issued a notice dated 23-41950, generally to the consumers informing them of revised charges for the supply of electrical energy with effect from 1-5-1950. By the notice the consumers were informed that for lights and fans there would be levied a charge of annas 8 per unit & for heating circuits and refrigeration a charge would be made at the rate of annas 5 per unit. An additional monthly standing charge of Rs. 2 for every 25 K.W. of 'connected load' was also intimated to be levied from every consumer of energy used for light and fans and for heating circuits and refrigeration. Some of the consumers paid the additional standing charge of Rs. 2 for the months of May and June 1950. An objection was, however, raised against the levy of the standing charge for subsequent months. In the meanwhile correspondence, ensued between the defendant-company and the Government of Bombay in connection with the right of the defendant-company to levy the additional standing charge. By their letter dated 26-9-1950, the Government of Bombay informed the defendant-company that their action in levying a monthly standing charge of Rs. 2 upon the 'lighting consumers' with effect from 1-5-1950, was not in accordance with the Press Note issued by the Government on 10-12-1949, and the defendant-company was requested to withdraw that charge forthwith and to apply to Government for appointment of a Rating Committee under Section 57 of Act 54 of 1948 if the defendant-companyconsidered it necessary to increase the existing rates. The defendant-company accepted the suggestion of the Government, and discontinued the standing charge with effect from 1-9-1950, and agreed to refer the question to the Rating Committee appointed under Section 57. On 27-10-1950, the defendant-company issued a circular letter informing the consumers that while it regarded the Government's intervention in connection with the standing charge as illegal and 'ultra vires' and while the company was competent to revise the rates under Section 57 and Clause 1 of Schedule 6 of Act 54 of 1948, the company had accepted the suggestion of Government and had cancelled the revised rate with effect from 1-9-1950. It is evident that by the circular the defendant-company asserted that it had a right to recover the standing charge for the period between May l and August 31, 1950, and contended that the levy was legal. The plaintiffs thereupon filed the suit out of which this second appeal arises, in a representative capacity for themselves and on behalf of the consumers who opposed levy of the standing charge.

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