- (1.) The petition for review under Rule I Order XL of the Supreme court Rules, made by the appellants in respect of the judgment dated 13/05/1992 in Civil Appeal No. 1841 of 1988 is taken up for hearing after notice to the respondents and the learned counsel for respondents 1 to 5 has appeared and filed counter-affidavit to the said petition for review. The review of the judgment has been sought by the appellants on the ground that the appellants who were the writ petitioners before the Karnataka High court contended in the writ proceedings that as per the Tripartite agreement entered into between the writ petitioner-company, the State government and the Electricity Board on 7/08/1976, any revision in the rates of electricity in terms of Clause 6 (b) (ii) would become effective on and from the date the government of India would allow the consumer, namely, the writ petitioner-company to make the necessary adjustment in the selling price of aluminium or communicate to the consumer that no price increase would be made or after the expiry of six months from the date of the said notice whichever was earlier. Admittedly, such notice dated 9/07/1980 of the levy of surcharge, that is, enhanced rate of electricity was received by the petitioner-company namely Indian Aluminium Company Ltd. whereby a surcharge of two paise per unit was sought to be levied. The Ordinance of 1980 followed by the Act amending Section 49 of the Electricity (Supply) Act, 1948 came into force with effect from 21/11/1980. According to the appellants, the enhanced rate of electricity could not be legally given effect to for the period between 1/07/1980 and 21/11/1980 even if the amended provisions of Section 49 become operative. It is the case of the appellants that such contention of the writ petitioners/appellants though specifically raised before the High court was not decided by the High court and although this court had noticed such contention of the appellants, has not decided the said contention presumably because in the judgment of the High court appealed from, no decision was rendered on this contention.
(2.) Mr Parasaran, learned counsel for the appellants, has contended at the hearing of the review petition that the appellants challenged the vires of the amended provisions of Section 49 on various grounds but such contentions have not been accepted either by the High court of Karnataka or by this court in disposing of the appeal. But even if such amendment is operative as held by this court, the petitioners/appellants are entitled to claim that the surcharge of two paise per unit will not be operative for the period from 1/07/1980 to 21/11/1980 when the amended provisions came into force in view of the existing provisions of Tripartite agreement. Since such contention has not been considered by this court in disposing of the appeal, the relief should be given by directing that in terms of the Tripartite agreement, the State Electricity Board of Karnataka cannot enforce the said levy of surcharge of two paise per unit from 1/07/1980 to 21/11/1980.
(3.) Mr Narasimha Moorthy, learned counsel appearing for the Karnataka State Electricity Board and its Officers has however submitted that a writpetition is already pending decision before the Karnataka High court on the true import of Clause 6 of the said Tripartite agreement. In the aforesaid circumstances, the appellants should raise such contention, if they so desire, before the High court so that upon hearing the parties the proper adjudication may be made in the pending writ petition. He has, however; submitted in fairness, that although the implication of Clause 6 (b) (ii) is not the subject matter in dispute in the pending writ petition but since the import of Clause 6 as a whole is required to be considered for the disposal of the said pending writ petition, it will be only appropriate if the appellants raise the contention about the true scope and import of Clause 6 (b) (ii) in support of the claim of the appellants that the said surcharge of two paise per unit could not be levied for the aforesaid period. In our view such submission of Mr Narasimha Moorthy appears to be reasonable. We, therefore, make it clear that the claim of the appellants about the inapplicability of the surcharge of two paise per unit during the period between 1/07/1980 and 21/11/1980 since imposed by the Karnataka State Electricity Board on the appellant-company is kept open with liberty to the appellant-company to raise the question of liability to pay the said surcharge in view of the aforesaid Tripartite settlement in the pending writ petition before the Karnataka High court, if necessary, by amending the writ petition suitably. We make it clear that the judgment delivered by this court on 13/05/1992 in Civil Appeal No. 1841 of 1988 will not be construed as implied rejection of the said contention of the appellant-company by this court.;