2000 Supreme(Pat) 792

PATNA HIGH COURT
S.N.Jha and Asok Kumar Ganguly JJ.
Pulak Enterprises
Versus
Bihar State Electricity Board
Civil Writ Jurisdiction Case No. 5542 of 1999 ;
Civil Writ Jurisdiction Case No. 2009 of 1999 ; 2087 of 1999 ; 1655 of 1999 ; 1807 of 1999 ; 1971 of 1999 ; 1861 of 1999 ;
Decided On : JUNE 26, 2000

Headnote:Electricity (Supply) Act, 1948-Section 49-Clause 16.10.5-Rate of fuel surcharge-Determination of rates with 1991-92 as the base year-Opportunity of hearing necessary- Customers should not be made to pay for the inefficiency and short comings of the Board-Tariff contemplates fixing of fuel surcharge at the end of each year-Fuel surcharge partakes the nature of tax and it cannot be levied without fixing rate-The direction of the court to pass a reasoned order cannot be interpreted as a direction to set out reasons for fixing the particular rates of fuel surcharge which is merely an arithmetical exercise to be worked out in the prescribed formula-The Board is a Body Corporate and it takes its decision on the basis of the facts and figures furnished to it in the agenda notes supported by materials. (Paras 10 and 11)

       1994 (2) PLJR 103-Referred to.

       Practice and Procedure-There may be justification to constitute 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 as in a PIL-In adversary litigation it is for the parties to adduce materials to substantiate their respective claims-Presently, rates of fuel charge having been correctly computed in accordance with formula, no need for reference. (Paras 12 to 15)

       AIR 1983 SC 1268-Relied upon.

       AIR 1985 SC 652/1259; (1986) 2 SCC 176; (1999) 2 SCC 718; (1990) 3 SCC 318; (1999) 2 SCC 131; (1998) 2 SCC 66-Distinguished.

       Electricity (Supply) Act, 1948-Sections 18 (a) and 59 (2) (b)-Fuel surcharge-increase in rate-Even though the Board has failed to perform its duties efficiently, that cannot be a ground to find fault in the increase which is a natural phenomenon-If the average unit rate of purchase of energy from external sources increases, this is bound to raise the fuel surcharge because surcharge of energy from external sources is an essential component of fuel surcharge. (Para 16)

       1994 (2) PLJR 103-Referred to.

       Electricity (Supply) Act, 1948-Section 49-Tariff clause 16.10-Framing of tariff is a legislative function which does not warrant giving an opportunity of hearing-Legislative action, plenary or subordinate, is not subject to rules of natural justice-The only challenge to the fixation of levy can be on the ground of unreasonableness and not on any demonstrative ground. (Paras 22 to 24 and 41)

       AIR 1978 SC 1296; AIR 1984 SC 657; AIR 1986 SC 1999; AIR 1975 SC 460; AIR 1987 SC 1802; (1990) 3 SCC 223; (1993) 2 SCC 37-Relied upon.

       Electricity (Supply) Act, 1948-Section 49-Clause 16.10 of Tariff Notification-Fixing rate of fuel surcharge u/cl. 16.10 is different from fixing the tariff u/s 49-Even though fuel surcharge is a part of tariff but fixing rates of consumption charges and fixing rates of fuel surcharge do not stand on par-Though rates of consumption charges are based on objective materials, there is enough scope for flexibility in fixing the rates Fixation of fuel surcharge involves arithmetical accounting and there no scope for exercise of any discretion or flexibility. (Para 25)

       Electricity (Supply) Act, 1948-Section 49-Neither the Tariff Notification provides for giving opportunity of hearing nor it is feasible to do so nor it would serve any useful purpose-Fixation of rate is nothing else than arithmetical exercise as per a strait jacket formula-Only right available to the consumers in this regard is to object to inclusion of any extraneous matter in the devising of formula. (Paras 26 to 29)

       AIR 1984 Raj 131-No longer good law.

       AIR 1986 SC 1999-Relied upon.

       (1996) 6 SCC 560; (1997) 1 SCC 53-Distinguished.

       Electricity (Supply) Act, 1948-Section 49-Clause 16.10 of Tariff Notification-The words "out of" occurring in Cl. 16.10 denote "to the extent of "-In terms of clause 16.10. 1, fuel surcharge is leviable only on consumers in CS II and III, L. T Industrial Service, H. T. Service. EHT and Railways Traction Service categories-Units sold to other categories of consumers cannot be taken into account nor determining the value of either A2 to C2 or D2 to H2-Section 49(3) expressly authorises the Board to fix different tariffs classifying the consumers into different categories and fixing different tariffs-Board is entitled to levy fuel surcharge on H. T Consumers leaving out other categories. (Paras 30 to 33)

       AIR 1952 SC 369; AIR 1968 SC 991; AIR 1984 SC 657; AIR 1986 SC 1999; AIR 1991 SC 1473-Relied upon.

       1994 (2) PLJR 103-Assented to.

       Electricity (Supply) Act 1948-Section 49-Clause 16.10.3 of Tariff Notification-The fact that TVNL came into existence in the year 1996-97, it cannot be treated as a component of H3 (any other source) without suitably amending the formula having regard to the fact that in computing fuel surcharge, increase in the average unit rate of electricity has to be calculated treating 1991-92 as the base year. (Paras 34 and 35)

       Electricity (Supply) Act, 1948-Section 49-Board vis-a-vis DVC and TISCO-Deemed Supply-Clause 16.10.3.1 of Tariff Notification provides for computation of the cost of generation at the Boards own generating station-in H3 actual increase in average unit rate of purchase will apply-If the Board is purchasing electricity from different sources for the purpose of D3. E3, F3 etc., the actual increase in the average unit rate of purchase for that particular source, is to be taken into consideration-The source being one there cannot be two rates of purchase or increase in the average unit rate of purchase-Fuel surcharge has to be calculated strictly in accordance with the frame work of the formula-Board-cannot treat the sale of electricity by DVC to T1SCO as a separate category for computing D3. (Paras 36 and 37)

       Judicial Review-Judicial review is permissible only of the decision making process and not the correctness or otherwise of the decision. (Para 41)