AGRAWAL, C. J. - (1.) THE appellant M/s Delhi Cloth Mills owns a number of industrial units in Kota, one of them being M/s Shriram Fertilisers and Chemicals. In order to provide for the rationalisation of the production and supply of the electricity, the Parliament enacted the Electricity Supply Act, 1948 (Act No. 54 of 1948) (hereinafter referred to as the 'act' ).
(2.) GOVERNMENT of Rajasthan constituted State Electricity Board (hereinafter referred to as the 'rseb') under section 5 of the Act. Section 49 of the Act provides for the sale of electricity by the Board to persons other than licensees. In exercise of power conferred by section 49 of the Act, the Board has been framing tariffs laying down the conditions from time to time for the supply to electricity to its consumers. In the year 1964, general tariff was laid down, which contained a fuel adjustment clause. This was modified on 6. 07. 1966 and 6. 04. 1969. The changes made are not relevant for the purpose of the present case before us. An agreement took place between the appellant and the RSEB on 8. 02. 1973 for the supply of 6 MW power to Industrial Unit M/s. Shriram Fertilisers and Chemicals, Kota. This agreement was supplemented by another agreement dated 15. 12. 1981 whereby the RSEB agreed to enhance the supply of power to 25 MW to the aforesaid industrial unit. The tariff was again modified on 28. 05. 1974 and fuel adjustment clause was modified. The relevant clause is being quoted below: - "fuel Adjustment Clause :- The rate per unit sold under the High Tension Tariff Schedules LP/ht.-l and DL/ht.-2 shall be varied according to the annual rate of fuel surcharge, which shall be worked out as per the following formula: - A1 x A2 + B1 x B2 + C1 x C2 / (A2 + B2 + C2 + D) x 0. 85 Where - A1 - Rate of Fuel Surcharge per unit worked out at Thermal Power Houses in Rajasthan. A2 - Units generated by Thermal Power Houses in Rajasthan. B1 - Rate of fuel surcharge per unit worked out for Satpura Thermal Station. B2 - Units generated against Board's share from Satpura Thermal Stations. C1 - Fuel surcharge in paise per unit levied by the Rajasthan Atomic Power Project on the bulk purchase by the Board. C2 - Units purchased by the Board from Rajasthan Atomic Power Project. D - Units received in Rajasthan from the hydel sources. " A new tariff was thereafter framed for supply of electricity which had been notified on 4. 11. 1976. This tariff also contained similar fuel adjustment clause, but heavy water surcharge was additionally included. This notification of 1976 was superseded by another notification dated 30. 12. 1987 but no changes were made in the fuel adjustment clause. Thereupon, tariff for supply of electricity, 1976 was superseded by a notification dated 7. 07. 1981 whereby a new tariff for supply of electricity, 1981 was framed. This contained fuel adjustment clause for the large industrial load consumers.
(3.) AFTER 1981, the RSEB further revised tariff for supply of electricity by a notification dated 6. 03. 1982, but the same is not relevant for the purpose of this case. The appellant admitted in the writ petition that the Board is empowered to levy charges for supply of electricity in accordance with the provisions of the Act, with concurrence of the State Government but averred that it had no power to revise the said charges in the garb of fuel adjustment clause without the concurrence of the State Government. On the basis of enhanced fuel charges, the appellant was issued bills by the RSEB for the months May, 1974 to April, 1977, which levied fuel surcharge at the prevailing market rates. The appellant denied the payment of fuel surcharge on the assertion that there being no difference between the annual rate of surcharge provisionally determined by RSEB and the final annual rate of surcharge, as calculated after the completion of the year, the RSEB could not issue any revised bill under the fuel adjustment clause of the years 1974 to 1977. According to the appellant, fuel surcharge was regularly paid in toto and the details furnished in paragraph 17 of the writ petition are quoted below: - Feb. 71 to March 72 0. 44 p/kwh April 72 to March 73 0. 56 p/kwh April 73 to March 74 0. 5 p/kwh April 74 to March 75 0. 4 p/kwh Till June 1981 0. 40 p/kwh From June 1981 0. 63 p/kwh From August 1981 1. 00 p/kwh From January 1982 2. 5 p/kwh ;