Judgment

SHAH, J.- The Western U. P. Electric Power and Supply Company, Ltd., - hereinafter called the Company - holds a licence under Section 3(1) of the Indian Electricity Act 9 of 1910 to supply electricity in certain areas in the State of U. P. Messrs. Hind Lamps Private Ltd., set up a factory for manufacturing electrical equipment within the area of supply of the Company. Hind Lamps was receiving energy from the Company. Hind Lamps made several representation to the State Government that the supply of energy by the Company was inadequate to meet its requirements and was interrupted and fluctuating". Meetings were held between the Company, the State officials and Hind Lamps for devising means to ensure uninterrupted and adequate supply of energy required by Hind Lamps, but there was no improvement in the supply position.

2. Hind Lamps then applied to the Government of U. P. to grant direct supply of electrical energy from the State Electricity Board. The State Government by order dated December 26, 1961, issued in exercise of the powers conferred by Section 3(2) (e) (ii) of the Indian Electricity Act, 1910 as amended by the Indian Electricity (Uttar Pradesh Sanshodhan) Adhiniyam 1961. directed the State Electricity Board "to supply electrical energy directly to Hind Lamps upon terms and conditions similar to those on which it supplied electrical energy to other customers". In reply to a representation to reconsider the decision, the Government informed the Company that the "decision was necessitated in the public interest and there was no justification for revising it". Another representation made by the Company was also turned down and direct supply of electrical energy was commenced by the State Electricity Board to Hind Lamps.

3. A petition moved by the Company in the High Court to Allahabad for a writ of certiorari quashing the order dated December 26, 1961 was rejected by R. S. Pathak, J. In appeal under the Letters Patent against the order passed by the learned Judge, counsel for the Company applied for leave to plead that the order dated December 26, 1961, resulted in discrimination between Hind Lamps and other consumers within the area of supply of the Company, and also between Hind Lamps and the Company and the order was on that account invalid. The High Court permitted the Company to raise the contention, but declined to give opportunity to "enlarge the evidence on record at that stage". Sole reliance was therefore placed by counsel for the Company on paragraph 2 of the Government Gazettee Notification issued by the U. P. Government on April 24/28, 1962, containing the revised tariff for the supply of electrical energy to licensees obtaining bulk supply from the U. P. State Electricity Board and to other consumers. It stated :

"The revised tariff shall, except in the case of the licensees, be applicable to consumers in respect of consumption in the month of May 1962. In the case of licensees, obtaining bulk supply of energy from the board, the revised tariff shall apply to supplies made from 1st July, 1962 and onwards."

The Schedules in the Gazette Notification set out the rates at which electrical energy was to be supplied by the Board to licensees as well as to diverse classes of consumers who received supply of energy from the Board. The High Court held that there was no evidence on the record to prove the rates at which energy was being supplied to the Company on December 25, 1961, and the rates at which the energy was being supplied to Hind Lamps. The High Court observed that before the order dated December 26, 1961 could be challenged on the ground of discrimination between Hind Lamps and other consumers as also between Hind Lamps and the Company, it was necessary for the Company to establish by evidence the rates of supply of energy to the Company, to Hind Lamps and to the other consumers obtaining at the time of the impugned order, i.e. December 26, 1961 and in the absence of that evidence the plea of disc