Singh, J. - (1.) THIS is a petition under Article 226 of the Constitution directed against the State of UP and the Electric Inspector to Government of UP for the issue of a writ of mandamus restraining them for demanding and collecting from the Petitioner any duty on energy consumed by the Petitioner for certain purposes.
(2.) IT appears that the Municipal Board, Unnao, the Petitioner obtained a licence under the Indian Electricity Act, 1910, to supply energy within an area of supply in the town of Unnao. The Municipal Board thus became a licensee and supplied electricity to the consumers it also consumed electricity for its own purpose such as running of water works, street lighting and for light and fans in their own offices. Under the U.P. Electricity (Duty) Act, 1952 (hereinafter referred to as the Act) a duty of 25 per cent is paid on the amount payable to the licensee by the consumers on account of the energy consumed by the consumers. The Act has defined a licensee and a consumer. In Section 2 of the Act, the definition of consumer is as follows: (d) 'Consumer' means a person, other than a licensee, who is supplied with energy (i) by a licensee: (ii) by a Board; or (iii) by the State Government or Central Government." Section 3 provides for the levy of the duty under the Act and it is as follows: There shall be levied for, and paid to the State Government, on the energy consumed by a consumer, a duty (hereinafter referred to as the "electricity duty") computed at 25 per cent, of the rate charged 'therefor by a licensee, by the Board of Government referred to in Sub -clause (ii) or (iii) of Clause (d) of Section 2:... Explanation: (1) For the purposes of levy and payment of electricity duty, the energy consumed by a licensee or Board in or upon premises used by it for its own commercial or residential purposes shall be deemed to be energy paid for and consumed by a consumer;... The provisions of Section 3 clearly indicate that the duty will be payable only by a consumer and not by a licensee. There is, how ever, an explanation which engrafts an, exception to the general provisions of nonpayment of duty under the Act by the licensee. This exception refers to the energy consumed by a licensee or Board in or upon premises used by it for its own commercial or residential purposes. Any energy consumed by the licensee for any of these two purposes, namely, for its own commercial purposes or residential purposes, shall be subject to payment of duty under the Act The Petitioner has been treated, for the purposes of running water works installation as a 'consumer' within the meaning of this explanation. The contention of the Petitioner, on the other hand, is that the water works and other purposes, for which electricity is being consumed by the petitions, are not covered by the explanation and as such no duty is payable The payment of duty with regard to street lighting and energy consumed in the offices is no longer in dispute in this petition and the only point at issue now is whether the energy consumed by the Petitioner for the purposes of running the water works installed by the Municipal Board was liable to payment of duty under the Act.
(3.) THE question rests entirely on the interpretation which has to be out on the words 'commercial purposes' used in the explanation. Under the definitions given in the Act, a licensee cannot be a consumer. A licensee is something very different from a consumer, so that if we apply this definition to Unnao Municipal Board, it can, in no circumstances, be a consumer except, under the explanation, in certain matters. If there fore, the running of the water works by the Petitioner is for commercial purposes, any electricity consumed by the Petitioner -licensee for this purposes shall also be liable to payment of duty under the Act.;