- (1.) THIS writ petition, under Article 226 of the Constitution, has been filed by the petitioner challenging the notification of the Rajasthan State Electricity Board (in short 'the Board') dated 11-4-1988 issued in exercise of the powers conferred on it by Section-49 of the Electricity (Supply) Act, 1948 (hereinafter to be referred as 'the Supply Act') whereby the provisional rate of fuel surcharge was fixed on eight paisa per unit from the billing month of May, 1988 chargeable from medium and large scale industrial consumers. It had been prayed by the petitioner that by an appropriate writ, order or direction it may be declared that no fuel surcharge is leviable from May, 1988 or in the alternative, the rate of fuel surcharge not liable to exceed four paisa per unit. Consequently, the prayer for quashing the aforesaid notification dated 11-4-1988 fixing the provisional rate of fuel surcharge was made.
(2.) THE Rajasthan State Electricity Board created under the Supply Act enjoined with the duty of supply of electricity to all the consumers through out the State of Rajasthan and for that pupose it obtained power from the THErmal Power Houses in Rajasthan where actually the coal and oil were used as the main raw material. It also generated power from Hydel sources at Chambal in Rajasthan and got power from Bhakra and Byas Power Stations and Satpura THErmal Station in Madhya Pradesh. THE Board also purchased the power from the Rajasthan Atomic Power Project and from several other power stations in the neighbourhood. THE Atomic Power Project was owned and controlled by the Central Government and uranium and heavy water were the principal fuel which were used for producing energy at the Atomic Power Station. THE power from Atomic Power Project was most uncertain and it goes out of order at any time and takes a long time to re-start. Since there was large gap between the demand and availability of electric power in the State of Rajasthan, the Board had to purchase electricity from other out-side sources. In order to tide over the difficulty of shortage of power in Rajasthan, the Board undertaken construction of two THErmal Power Stations at Kota in first stage, each of 110 MW KWH. One of which 110 MW was commissioned in January, 1983 whereas the second unit of 110 MW was commissioned in July, 1983. According to the Board, the Thermal Power Stations which used coal and oil as the main fuel for generating power, are more dependable than other sources of power. The price of fuel specifically coal had gone up very high and rose constantly. The newly constructed Thermal Power Stations consumed coal and oil as main fuel. On account of the costly fuel (coal and oil) and on account of less electricity being available from the Hydel sources, the fuel surcharge was bound to be much more than the fuel surcharge calculated in the previous year. The fuel adjustment clause had always been the part of the tariff for supply of electricity and made applicable by the Board from time to time since 1964. Upto the period "tariffs for supply of Electricity, 1976" was in force, the provisional rate of fuel surcharge for the current period was to be charged from the High- Tension (HT) consumers in accordance with the final rates worked out for the last previous period and the final adjustments were to be made when the final rates of fuel surcharge for that period was worked out. The relevant part of the 'fuel adjustment clause' of the aforesaid tariff of 1976 reads as under : - "the provisional rate shall be charged for the current period according to the rate for the previous period and final adjustment shall be made when the final rates of fuel surcharge is worked out. " The Board pleaded that on account of non-finalisation of the tariffs by the Rajasthan Atomic Power Project, Government of India including the fuel surcharge (element C1 of the formula relating to fuel adjustment clause to be levied by R. A. P. P. on the Board) it was beyond the control of the Board to work out the final rate of fuel surcharge according to the formula of fuel adjustment clause for consecutive six years from 1974 to 1980. The R. A. P. P. tariffs were finalised for the said period in 1981- 82 and the Board, thereafter, worked-out final rates of fuel surcharge to be charged from its consumers and according to the final rates, arrear bills were sent to its HT consumers. The said final rates of fuel surcharge so worked out after a lapse of about more than six years were challenged by various writ petitions before this Court. A learned single Judge of this Court by his judgment dated 16-4- 1983 upheld the levy for the aforesaid six years, but declined to grant interest claimed by the Board on such final rates. Special appeals were filed by some of the consumers as well as by the Board. The grievance of the Board was for holding by the learned Single Judge that the interest was not liable to be paid to it by the HT consumers. These matters are pending in the Supreme Court.
(3.) THE Board experienced that the informations required from different agencies took sufficient time in collecting all the relevant informations in respect of the elements as required in the formula for fuel adjustment clause for working out the final rate of fuel surcharge, and till such time, the previous final rates worked out was to be charged for the subsequent current years as provisional rate. As a result of non-availability of complete formula, the Board remained deprived of its legitimate revenues for a long time although the amount on fuel escalations have been incurred by the Board, but could not be charged from its consumers due to the reasons mentioned above. To over-come this difficulty, the Board decided in 1981 to revise the procedure of charging provisional rate of fuel surcharge for the current period by making suitable amendments in the tariffs. As such, after processing the matter and carrying out all the formalities, the Board revised the tariff vide notification dated 7-7-1981 which is known as 'tariff for supply of Electricity, 1981'. So far as the charging of the provisional rate for the current period was concerned, it was revised as under : - "the consumer shall be charged for the current period at the provisional rate, as may be decided by the Board from time to time, for which the decision of the Board shall be final, and binding on the consumer. Final adjustment shall be made when the final rate of fuel surcharge is worked out, for that period on the basis of formula mentioned above. " On account of this revision of the tariff, the HT consumers became liable to pay provisional rate as revised from time to time for the current period and it was not obligatory upon the Board to fix such provisional rate on the basis of the final rates of previous period. The Board's case was that for the reasons beyond the control of the Board, the provisional rates could not be worked out upon the final rates determined in earlier years. According to the formula, an estimate was made of the likely to increase in the rates of fuel from the basic rates provided in the formula and also of the probable units of electricity that could be made available to the respondent Board by generation or by purchase. After taking into consideration all the components given in the formula of fuel adjustment clause, the provisional rate of fuel surcharge was estimated. This provisional payment was for a temporary need suitable or acceptable in the existing situation, but subject to change or nullification. In other words, the provisional rate was tentative and conditional subject to final adjustment. If after the final rates of fuel surcharge are calculated for the period for which fuel surcharge was charged at provisional rates, any amount was charged less or in excess than the final rates of fuel surcharge, the same was liable to be recovered or adjusted in the subsequent bills sent to the consumers. The Board's case was that due to increasing demand of energy from the consumers and on account of the less availability of power from Board's own sources, the Board also started purchasing power from the neighbouring sources, Badarpur Thermal Power Station, Guru Nanak Thermal Power, Singraufi Thermal Station etc. The Board used to revise quarterly the rates of fuel surcharge due to escalations. It had havey financial strain. Hence, in 1981, the Board. decided to bring about a change in the system by way of 'cost variation and fuel adjustment clause (Tariff of 1981)' in which if the rates of HT PS power purchased as on 1-4-1981 were revised thereafter during the year, such element has also been taken into consideration in the revised formula of cost variation and fuel adjustment clause as prescribed in the Tariffs of 1981, made applicable from August, 1981. ;