2009 Supreme(SC) 716

2009(3) Supreme 778
SUPREME COURT OF INDIA
(From Patna High Court)
Dr. Arijit Pasayat and Tarun Chatterjee, JJ.
Bihar State Electricity Board — Appellant
versus
M/s Pulak Enterprises and Ors. — Respondents
Civil Appeal Nos. 7220-7239 of 2000
WITH
Civil Appeal No. 7219 of 2000
Civil Appeal Nos. 2555-2559 of 2009
(Arising out of SLP (C) Nos.456-460/2001)
Civil Appeal 2560 of 2009
(Arising out of SLP (C) No.12624/2001)
Civil Appeal 2561 of 2009
(Arising out of SLP (C) No.12625/2001)
Decided on : 15-04-2009

IMPORTANT POINT
Electricity Board is entitled to levy fuel surcharge on the consumers receiving high tension supply leaving out the consumers coming in other categories.

Headnote:(a) Constitution of India,1950 – Article 226 – Reasoned Order – High Court directing BSEB for passing a reasoned order – Board thereafter proposed amendments in tariff – Facts and figures contained in the agenda notes which were the basis of the proposed amendments and revision in the rates, can be treated as reasons for the same – Direction of the High Court to pass a reasoned order cannot be interpreted as a direction to set out reasons for fixing the particular rates of fuel surcharge. (Para 16)

        (b) Constitution of India,1950 – Article 226 – Constitution of Expert Committee – There may be justification to constitute a committee and refer the dispute to it when the relevant data have to be gathered or facts have to be ascertained without which the dispute cannot be resolved – This normally is done in public interest litigation – In adversary litigation it is for the parties to produce materials in support of their respective claim – Court is not supposed to make a roving enquiry for allowing or disallowing the claim of one or the other party. (Para 17)

        (c) Electricity (Supply) Act, 1948 – Section 49 – If the function of fixing the rate of fuel surcharge is held to be legislative, the principles of natural justice would not be applicable – Scope of judicial review would also be limited to plea of discrimination i.e. violation of Article 14 of the Constitution – Price fixation is neither the forte nor the function of the Court. (Para 21)

        AIR 1978 SC 1296; AIR 1984 SC 657; AIR 1986 SC 1999 – Relied upon.

        (d) Electricity (Supply) Act, 1948 – Section 49 – Price fixation – Price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria – It should not, therefore, give rise to a complaint that rule of natural justice has not been followed in fixing the price. (Para 23)

        AIR 1978 SC 1296; AIR 1975 SC 460; AIR 1987 SC 1802; (1990)3 SCC 223 – Relied upon.

        (e) Electricity (Supply) Act, 1948 – Section 49 r/w clause 16.10, Tariff notification – Fixing rate of fuel surcharge under the two provisions are different – Fuel surcharge is undoubtedly a part of tariff – But fixing rates of consumption charges or the guaranteed charges or the fixed charges or the delayed payment surcharge etc., and fixing rates of fuel surcharge do not stand on par. (Para 26)

        (f) Electricity (Supply) Act, 1948 – Section 49 – Where the fixation of rate or determination of the amount is made individually, there may be justification or necessity to give opportunity of hearing to the person or persons concerned – In case of rate fixation for persons at large, the only way by which such opportunity can be given is to notify the rates and then invite objections – However, there is no such provision. (Para 27)

        (g) Interpretation of statutes – Though sometimes presence or absence of comma has been taken aid of in interpreting the particular provision, the ordinary rule is that punctuation mark is a minor element in the interpretation of Statute. (Para 29)

        AIR 1952 SC 369 – Relied upon.

        (h) Electricity (Supply) Act, 1948 – Section 49(3) – Section 49(3) expressly authorises the Board to fix different tariffs for the supply of electricity classifying the consumers into different categories and fixing different tariffs – Thus, the Electricity Board is entitled to levy fuel surcharge on the consumers receiving high tension supply leaving out the consumers coming in other categories – Validity of similar provisions of the 1979 Tariff of the Bihar State Electricity Board and section 49(3) already upheld. (Para 30)

        AIR 1968 SC 991; AIR 1984.SC 657; AIR 1986 SC 1999 – Relied upon.

       Facts of the case :

        1. The dispute relates to fuel surcharge.

        2. The validity of levy has been upheld by Supreme Court in Bihar State Electricity Board and Anr. v. Bihar 440 Volt Vidyut Upbhokta Sangh and Ors. (1997) 11 SCC 380.

        3. Therefore, the dispute before the High Court related to method of calculation and in substance the rate of fuel surcharge.

       Finding of the Court :

        The computation of the rates of fuel surcharge by the impugned circular for the years 1996-97 and onwards so far as it relates to the purchase of electricity from TVNL and “deemed supply” by the Board to TISCO thus does not appear to be in accordance with law.

       Result : Appeal by the Bihar State Electricity Board dismissed. Other appeals disposed of.