- (1.) THIS petition filed by M/s Banswara Syntex Ltd. , seeks quashing of the notification dated 11th Sept. 1991 (annexure 1 to the petition) and the demand created vide bills, annexure 2 to the writ petition. It has further sought the relief of mandamus restraining the Rajasthan State Electricity Board (hereinafter referred to as the 'board' from recovering final rate of fuel sur-charge on the basis of annexure A-l to the writ petition. By annexure A-1, the fuel sur-charge had been approved by the Board at the rate of 23. 68 per unit under the provisions of 'cost Variation and Fuel Adjustment Clause' appearing in the 'tarrif for Supply of Electricity 1985. '
(2.) THE aforesaid notification dated 11. 9. 1991 also directed that the bills of all medium and large industrial consumers for the year 1989-90, i. e. for billing month of May 1989 to April 1990, be revised accordingly. THE final rate of fuel sur-charge for 1989-90 is worked out in accordance with tariffs for supply of electricity, 1985, which had been approved by the Board as given at the bottom of the said notification. The Schedule appended to 'cost Variation and Fuel Adjustment Clause' has been quoted in the writ petition. It lays down that except State Govt. run hospitals and hostels, the bulk supply for mixed load consumers shall be varied according to the annual rate of fuel sur-charge, which shall be worked out as per the following formula : - A1 x A2 + C1 x C2 + D1 x D2 / (A2 + B2 + C2 + D2 + E) x 0. 80 Where:- A1 = Rate of fuel sur-charge per unit to be worked out for Kota a Thermal Power Station (KTPS) in the manner as mentioned hereunder. A2 = Units sent out by KTPS B1 = Rate of fuel sur-charge per unit worked out for Satpura Thermal Power Station (STPS) as mentioned hereunder. B2 = Units sent out against Board's share from STPS C1 = Heavy Water & Fuel sur-charge in paise per unit may be levied by the RAPS authorities due to variation in the rate of Heavy Water and Fuel Consumed at the Raj. Atomic Power Station. C2 = Units purchased by the Board from RAPS D1 = The difference in the average rate in paise/ unit at which the power is purchased from agencies like Singrauli, BTPS and other systems excluding RAPS and the basic rate of 33. 72 Paise per unit. For this purpose the average rate shall be computed on the basis of different rates at which the different quantum of energy is purchased from these sources. D2 = The energy purchased by the Board from Singrauli BTPS and other neighbouring systems excluding RAPS E = Units received in Rajasthan from Hydel sources. The cost of generating power stations, from where electricity was being obtained or purchased, were different. In respect of Kota Thermal Power Station, the relevant clause, as mentioned at page 15 of the petition, is quoted below : - "the variation shall be determined yearly by multiplying the variation in the cost of fuel above or below the basic cost of fuel having basic calorific value : with the total fuel burnt at the KTPS during the year and dividing by the units sent out by the KTPS. The cost of fuel burnt shall be determined by taking the average cost of fuel at bankers of the power house during each year ending 31st March and shall be as furnished by the Chief Engineer (KTPS ). " For the purpose of this case, it is not necessary to give the details of cost of fuel burnt in respect of those from where the Board used to receive supply. What is relevant is the last clause of the Schedule, which has a bearing, and the same is quoted below : - 'the variation shall be determined yearly by multiplying the variation in the cost of fuel above or below the basic cost of fuel having basic calorific value: with the total fuel burnt at the KTPS during the year and dividing by the units sent out by the KTPS. The cost of fuel burnt shall be determined by taking the average cost of fuel at bankers of the power house during each year ending 31st March and shall be as furnished by the Chief Engineer (KTPS ). ' In accordance with the aforesaid Schedule and the various clauses, that annexure A-l was issued to the petitioner followed by demand notice contained in annexure A-2. The contention of the petitioner was that it was under obligation to pay the enhanced fuel sur-charge but it could not be asked in the garb of liability of the amount falling in the aforesaid categories, something not due from the petitioner. The argument of the petitioner has been that 'for arriving at the rise in the prices of the fuel during the relevant year, it is the price at the commencement of the year which is relevant and not the price of the fuel in the year 1985 when the tariff was amended. The fairplay required that the Board should have taken into consideration the rise in the price of the fuel from 1st of April in each year till the end of the relevant year. Fixing of the basic price by the Board was absolutely arbitrary.
(3.) THE writ petition has been contested by the Raj. State Electricity Board on the ground that the fuel sur-charged had been claimed in accordance with the terms and conditions settled under the agreement in between the parties. Clause 16 of the agreement has been referred to in the counter affidavit as the basis for the claim. Clause 16 (a) and (b) of the agreement reads as under: - '16 (a ). THE consumer shall pay to the Board every month charges for electrical energy supplied to the consumer during the preceding month under this agreement in accordance with the provisions and scale of rates set forth in the tariff schedule attached hereto and which shall be deemed to be part of this agreement. 16 (b ). If the Board by notification makes any alteration in the aforesaid scale of charges, such altered rates shall be treated as if the same were part of this agreement in supersession of the charges set out in the schedule attached hereto with effect from the date fixed in the notification and if no date is fixed in the notification then from the date of publication of such notification. ' According to the Board, the tariff Schedule was a part of the agreement which provided that the consumer would pay in accordance with the provisions and scales of rates set forth in the tariff Schedule, such altered rates, as may be made by the Board from time to time, was final and binding on the petitioner. Sec. 49 of the Electricity Supply Act empowers the Board to frame uniform tariffs from time to time. The tariff had been changed by the Board in exercise of that power. In the beginning, electricity was mostly generated by Thermal Power Stations situated in several different places. In Rajasthan, under the princely States, such as Jaipur, Jodhpur, Bikaner, Kota. , etc. , the fuel sur-charge was related only to the cost of coal of which the basic price was fixed at Rs. 50 per M. T. at Power House Bunkers. But, subsequently, the Board, in order to meet the growing need of electricity, started taking electricity from Satpura Thermal Power Station, Madhya Pradesh, Atomic Power Project Rawat Bhata, Kota etc. , the Atomic Power Project was owned by Govt. of India and it used Uranium and Heavy Water as fuel. In order to meet the shortage of supply of electricity, the Board started producing electricity from Atomic: Power Station by paying fuel sur-charge levied by the Atomic Power Project in Addition to the rates fixed by that Project for supply of electricity to the Board from time to time. On that account, all the additional sources of supply of electricity became available to the Board. It was pleaded by the Board that electricity was being received at a lower cost in the year 1974 and as a portion of the supply was from Hydel sources, the cost of fuel was zero. Although, the Board asserted that in 10 years from 1964 to 1974, the prices of coal had gone up quite appreciably, but still in the formula, the basic rate of coal was kept the same as Rs. 50 per M. T. at the Power House Bunkers. Thereafter, the Board introduced another tariff in 1976 which continued to be in force till another tariff came into force in 1981. In 1981, the Cost Variation and Fuel Adjustment Clause was also provided. In this clause, apart from other components, which were included, a fresh competent covering the fuel surcharge for the power purchase from Badarpur Thermal Power Station was also brought in. Since the Board started producing electricity from Badarpur, the same was also included in the formula. 1981 tariff remained in force upto Aug. 1985 but that was changed in 1985. In this year, the tariff provided that apart from the other elements, as contained in previous tariffs, the fuel sur-charge for the purchase of electricity from Singrauli and other neighbouring systems were also included. ;