Mr. Justice R.C. Mankad, President— Complainants who represent cross sections of consumers of electricity supplied by the Gujarat Electricity Board (Board for short) at Baroda have filed this complaint challenginglevy of electricity duty and collection of tax on sale of electricity on fixed charges. It may, however, be mentioned that at the time of hearing of this complaint, the arguments and reliefs were confined to levy of electricity duty on fixed charges. In other words, question of levy and collection of tax on sale of electricity on fixed charges was not agitated or pressed. We are, therefore, called upon to deal with and decide only the question of levy of electricity duty on fixed charges.

2. Bombay Electricity Duty Act, 1958 as adapted modified by Gujarat Adaptation of Laws (State and Concurrent Subjects) Order, 1960 (Act for short) provides for levy of duty on consumption of electrical energy in the State of Gujarat. Section 3 of the Act is a charging section and it inter-alia provides that subject to the provisions of Sub-sections (2A), (2AA) and 3 there shall be levied and paid to the State Government duty on the consumption of electricity at the rates specified in Schedules I and II to the Act. In the instant case, we are concerned with consumers to whom rates specified in Schedule I apply. The consumers who are complainants are covered by entries 1 and 4 of Part I of Schedule I. Entry I provides for rates of duty for energy consumption by consumer in respect of premises used for residential purpose or educational purpose. Entry 4 provides for rates of duty for energy consumed by (a) an undertaking engaged in manufacture or production of eatables or drinks; and (b) hotels including residential hotels, restaurants etc. In order to understand the controversy involved in this complaint, it is not necessary to set out these entries in details. The complainants, however, strongly, rely on explanations to Part I in support of their contention. This explanation I reads as follows :

“Explanation I—For the purpose of this Part, the expression “consumption charges” means the charges payable by a consumer to a licensee or any person who generates energy for the energy supplied by such licensee or person, but shall not be deemed to include any of the following charges, namely :

(i) Meter charges

(ii) Interest on delayed payment

(iii) Fuse-off call charges and reconnection charges :

Provided that —

(a) Where no energy has been consumed by a consumer, minimum charges payable by him shall not be deemed to be consumption charges :

(b) Where the units of energy actually consumed by a consumer are less than the units of energy for which prescribed minimum charges are payable, “consumption charges” shall, in the case of such consumer, mean the charges for the units of energy actually consumed by him and not the prescribed minimum charges.”

3. It is submitted on behalf of the complainants that the Act is enacted under Entry 53 of the List II of Schedule VII of the Constitution of India. This Entry reads as follows :

“53. Taxes on consumption or sale of electricity—Emphasis was laid on the word consumption and it was argued that Legislature is empowered to levy tax only on the consumption of electricity. In other words, tax should directly relate to the consumption of electricity. It was submitted that Section 3 of the Act also makes it clear that duty is levied on the consumption of electricity. Therefore, the duty is directly linked with the consumption of electricity.”

4. The Board has prescribed electricity tariffs for LFD (residential/non-residential) low tension industries etc. Clause 1 of the electricity tariffs deals with tariff schedules for supply of electricity at low and medium voltage. Subclause (1) thereof provides for rate LFD-1 (for residential purpose) and Sub-clause (2) for rate LFD-II (non-residential). Section (A) of each of these sub-clauses deals with fixed charges. It is in the context of these fixed cha