S.J.MUKHOPADHYA,J. - (1.) IN these cases, the dispute raised relating to calculation of fuel surcharge, as circulated by the Bihar State Electricity Board (the Board), vide Circulars, as contained in letter No. 345 dated 11th July. 2000 and letter No. 428 dated 16th August, 2000.
(2.) THE fuel surcharge fixed, vide aforesaid letters are provisional and interim, in nature, the question of method of calculation and fixation of rate of fuel surcharge of the period is pending before the Supreme Court. The validity of levy of fuel surcharge was initially challenged and was upheld by the Patna High Court as well as by the Supreme Court in Bihar 440 Volts Vidyut Upbhokta Sangh v. The Chairman, B.S.E.B. reported in (1997) 11 SCC 380. Subsequently, a dispute was raised relating to method of calculation and the fixation of rate of fuel surcharge, which was heard and finally decided by the Patna High Court in Pulak Enterprises v. Bihar State Electricity Board and others. reported in 2000 (3) PLJR 552. The petitioners also raised dispute relating to method of calculation and fixation of rate of fuel surcharge by filing separate writ petitions i.e. CWJC No. 1655/99 (R) (Tata Yodogawa Ltd.) and C.W.C.J. No. 5592/99 (R) (Usha Beltron Ltd.), which were also decided along with other cases with the case of M/s. Pulak Enterprises (supra). The decision aforesaid has been challenged by both the parties, including petitioners and pending consideration before the Supreme Court in S.L.P. (Civil) No. 19436/2000; SLP (Civil) No. 20035 -20054 20035 -20054 etc., wherein leave granted, but prayer for interim relief stated to have been rejected. The Board, though challenged the judgment in M/s. Pulak Enterprises (supra), before the Supreme Court, but in absence of stay, decided to implement the judgment for collection of fuel surcharge, subject, to the decision of the Supreme Court, in pursuanceof which the impugned letters aforesaid i.e. 11th July, 2000 and 16th August, 2000 were issued and the following rate fixed for different financial years : yearRate of Fuel surcharge 1996 -9786.25 ps./Kwh.1997 -98137.20 ps./Kwh.1998 -99164.83 ps./Kwh.(by letter No. 345 dated 11th July. 2000)1999 -2000204.40 ps./Kwh.(by letter No. 428 dated 16th August, 2000) This time the parties (petitioners herein) again raised dispute relating to calculation and fixation of fuel surcharge, as made and shown above, on the ground that the fixation has not been made in terms with decision of Patna High Court in M/s. Pulak Enterprises (supra).
(3.) TO appreciate the stand of petitioners, it would be appropriate to refer the formula for computation of fuel surcharge, laid down in clause 16.10.3 of 1993 Tariff, as set out hereunder : S1= A1xA3+B1xB3+C1xC3+D1xD3+E1xE3+F1xF3+G1xG3+H1xH3 (A2+E2+C2+D2+E2+F2+G2+H2). Aplhabets A, B and C in the formula denote Board's own generating stations, namely, FTPS, DTPS and MTPS. Alphabets D, E and F in the formula denote sources of outside purchase, namely, DVC, UPSEB OSEB, NTPS, PGCL etc. Alphabet 'H' in the formula denotes 'any other source' of outside purchase other than above, and includes TVNL. Whereas, S1 = Average Fuel Surcharge per unit in paise applicable during the financial year. A1, B1, C1 = Unit generated from PTPS, BTPS and MTPS respectively. D1, E1, F1, G1, H1 = Unit purchased from DVC. UPSEB, OSEB, NTPS, PGCL and any other source respectively. A2, B2, C2 = Unit sold, out of sent out from PTPS, BTPS and MTPS on which fuel surcharge is leviable. D2, E2, F2, G2, H2 = Unit sold, out of purchased from DVC, UPSEB, OSEB, NTPC, PGCL and any other source respectively during the year on which Fuel Surcharge is leviable. A3, B3, C3 = Increase in average cost of Fuel Surcharge in paise per unit computed for Board's Generation at PTPS, BTPS and MTPS. D3 ,E3 ,F3,G3,H3 = Increase in average unit rate of purchase of energy from DVC, UPSEB, OSEB, NTPC and PGCL and any other source respectively during the year for which the surcharge is to be calculated. The said increase to be calculated with respect to the year 1992 - 93 (after amendment, read 1991 -92). ;