K. N. Seth, J. - (1.) THE petitioners entered into separate but identical agreements with the U.P. State Electricity Board for supply of electrical energy for industrial purposes. At that time the rate schedule of 1972 framed by the Board under S.49 of the Electricity (Supply) Act, 1948 (hereinafter referred to as the Act) was in force. THE relevant rate schedule applicable to the petitioners was Rate Schedule HV-28. By a notification dated Oct. 12, 1974 the Board, in exercise of powers under S.49 of the Act, issued revised rate schedules for supply of electricity. Besides revising the rates for demand charge, energy charge etc., a charge called minimum consumption guarantee charge was introduced for large and heavy consumers, the category to which the petitioners belong. In these petitions validity of the revised rates in the tariff as also imposition of the minimum consumption guarantee charge has been challenged. During the course of hearing it was conceded that the dispute regarding charges other than minimum consumption guarantee charge was covered by the arbitration clause of the agreement and only the validity of the minimum consumption guarantee charge was pressed for consideration.
(2.) IN the revised tariff of 1974 the minimum consumption guarantee charge was fixed at Rs. 360/- per KVA per annum of the contracted demand (including fuel cost variation adjustment) chargeable at the rate of Rs. 30/- per KVA per month of the contracted demand. It also provided that the demand charge and the additional charge on excess demand drawn over and above the contracted demand shall not be taken into account towards the aforesaid amount guaranteed. It was urged that this imposition was invalid as it was not warranted by the agreement between the parties which alone governed the terms and conditions of supply of electrical energy to the petitioners. It was further urged that since the Board was not in a position to supply electricity in accordance with the terms of the agreement the imposition of a minimum guarantee charge was unjustified. It was last contended that the exercise of power under S.49 of the Act in fixing a minimum charge was an arbitrary exercise of power and wholly untenable. The agreement between the parties, by cl.(2), provided that the agreement shall be read and construed in all respects in conformity with all provisions of the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 or any subsequent amendments thereof and the rules and regulations made thereunder from time to time. By cl.(8) it was provided that the consumer shall pay for the supply of electrical energy in accordance with rate schedule attached to the agreement. In cl.(13) it was provided that the rates stipulated in the agreement were subject to revision by the State Electricity Board from time to time under the provisions of the Act. As noted earlier, the agreement was entered into when the rate schedule of 1972 was in force. By notification dated October 12, 1974 the rate schedule of 1974 framed in exercise of powers under S.49 of the Act was brought into force. It was issued in supersession of all previous notifications, orders and instructions on the subject. Paragraph 2 of the notification provided that the rates of charges, conditions of supply and other, matters specified in the schedules shall replace the existing rates of charges and the corresponding provisions in the existing schedules and in the existing agreements, if any, with effect from Oct. 12, 1974. Section 49 of the Act empowers the Board to lay down terms and conditions, popularly known as tariffs, for supply of electricity to persons other than licensees. Under S.49(1)(2) uniform tariffs are framed covering various categories of consumers. Sub-Sec. (3) provides for framing different and special tariffs for a consumer or a class of consumers. Under the aforesaid provision the Board, is empowered to lay down rate schedules from time to time. The notification of 12th Oct., 1974 issued in exercise of this power superseded the 1972 tariff and replaced the existing rates of charges and the corresponding provisions in the existing schedules and in the existing agreements between the parties. The rate schedule of 1972, which was a part and parcel of the agreement between the parties, stood replaced by the new tariff enforced under the aforesaid notification. In place of 1972 tariff the new tariff became a part and parcel of the agreement between the parties. As laid down by this Court in Hari Shankar v. U.P. State Electricity Board (AIR 1974 All 70) ".......the term 'tariff' includes within its ambit not only the fixation of rates but also the rules and regulations relating to it. When the electrical supply is being made on the footing that the consumer will pay the minimum guaranteed charges, this charge is one of the terms or conditions for the supply." It is, therefore, idle to contend that the imposition of the minimum guarantee charges was not warranted by the agreement between the parties.
(3.) THE question may be considered from another angle. As noted above, cl.(13) of the agreement provided that the rates stipulated in the agreement were subject to the revision by the State Electricity Board from time to time under the provisions of the Act. In view of S.14 of the General Clauses Act all statutory power is exercisable from time to time. THE power exercised by the Board under S.49 of the Act was with the positive intention of replacing the 1972 tariff with the tariff dated 12th Oct. 1974. Apart from the condition incorporated in cl.(13) of the agreement that the rate shall be subject to the revision by the Board from time to time under the provisions of the Act, the new tariff enforced in exercise of the statutory power under S.49 of the Act would be legally valid and enforceable. In support of the contention that the Board could not impose the minimum consumption guarantee charge which was a new imposition as it was not covered by the agreement entered into between the parties, reliance was placed on Indian Aluminium Co. v. Kerala State Electricity Board (AIR 1975 SC 1967). That was a case of special tariff for supply of electricity in exercise of power conferred under Sub- S. (3) of S.49. As observed by the Supreme Court the fixation of special tariffs can be a unilateral act on the part of the Board, but more often than not, it would be result of negotiations between the Board and the consumer and hence a matter of agreement between them. Unilaterally revising the charge would mean that the stipulations had no binding effect, or in other words, the Board had no power to enter into such stipulations The Supreme Court further observed that the Board was also not competent to enhance the charges under the guise of fixing uniform tariffs under Sub-S. (1) of S.49, because Sub-S. (1) is, on its plain language, subject to Sub-S. (3) of S.49 and once special tariffs were fixed under Sub-S. (3) of S.49, there could be no question of fixing uniform tariffs under Sub-S. (1) of S.49. The power to fix uniform tariffs under Sub-S. (1) of S.49 could not be exercised in derogation of the stipulations fixing special tariffs made under Sub-S. (3) of S.49. The principle laid down in the above noted case could not be pressed into service in the present cases which related to fixation of tariff in exercise of power under S.49(1) of the Act. Moreover, as noted above, the terms of agreement between the parties provided for revision of the rate schedules applicable to the petitioners, a feature which was absent in the agreement in the Indian Aluminium Company's case. The Supreme Court itself explained the ratio of the decision in the case of Indian Aluminium Co. in Bisra Stone Lime Co. Limited v. Orissa State Electricity Board AIR 1976 SC 127). The same distinction as been brought out by the Kerala High Court in Travancore-Cochin Chemicals Ltd. v. Kerala State Electricity Board (AIR 1978 Ker 144).;