A clarificatory circular always has retrospective effect and does not amend the original clauses of the Act, Rules, or tariff.

ORDER :

(S.K. Mishra, J.)

1. This order arises out of an application filed for initiation of a contempt proceeding against the opposite party nos. 1 and 2 (Respondent nos. 1 and 3 of the Letters Patent Appeal, bearing L.P.A. No. 181 of 2005, disposed of on 24.08.2016 by a Division Bench of this Court.

2. The facts leading to filing of this contempt application are that the petitioners filed C.W.J.C. No. 644 of 2000 (R) seeking issuance of a writ of certiorari to the respondents i.e. the Jharkhand State Electricity Board (the then Bihar State Electricity Board) and to quash Annexure-6, being a circular dated 14th September, 1999, alleging, inter alia, that it tantamount to amendment in the tariff of 1993. It was also contended by the petitioners that the aforesaid circular also discriminate between the varieties of customers. The third ground of challenge to the said notification is that it was operative retrospectively from 01st July, 1993, which is not permissible under the law.

3. As per the judgment passed on 27th March, 2000, the writ petition was dismissed and against which, an intra court appeal bearing L.P.A. No.155 of 2000 (R) was preferred by the appellants, which was also dismissed on 09.05.2000. A civil review petition being Civil Review No. 47 of 2000 (R) was preferred by the applicant, which was also dismissed by the Division Bench vide order dated 28th June, 2000. The parties moved the Hon’ble Supreme Court in SLP (Civil), which was registered as Civil Appeal No. 3370 of 2001. The Hon’ble Supreme Court vide order dated 27th April, 2001 remanded it and directed the learned Single Judge to reconsider the matter and decide the same on merit. The said C.W.J.C. No. 644 of 2000 (R) was again heard and decided on 29th October, 2004.

4. Being aggrieved by the said judgment, a Letters Patent Appeal, contempt of which is alleged in this civil contempt application, was preferred. It was registered as L.P.A. No. 181 of 2005. The said L.P.A. was also dismissed by the Division Bench of this Court. The Division Bench after considering the matters and the contentions raised by the learned counsel appearing for the parties did not find any reason to entertain the Letters Patent Appeal, inter alia, holding that the tariff applicable in the present case is of the year 1993 and the period involved in the case is 01st July, 1993 to 31st July, 2002. The contention that was raised before the Division Bench in the aforesaid intra court appeal is that if a consumer consumes less than the minimum guarantee unit, then for the rest of the units, the consumer, who is appellant no. 2 in the appeal and likewise the appellant no. 1 has to pay for the minimum guarantee units, for which there is no dispute at all in the matter and the question that has been raised is that for the units, which are not consumed by the members of appellant no. 1, whether they are liable to make payment of fuel surcharge on the said unconsumed units. The Division Bench answering the question in affirmative on the question of the minimum guaranteed units are to be kept ready by the Respondent-Board and the Respondent-Board has to incur expenses for the same. The concept of fuel surcharge is that every now and then, the tariff is not being amended, whereas, the manufacturer of the electricity has to pay for the enhanced cost towards the fuel etc. and, therefore, to compensate these additional expenses, the fuel surcharge is to be levied.

For the minimum guarantee units, the Division Bench further held that the Respondent-Board has to keep that much of units ready, for which the Respondent-Board has to incur expenses towards fuel etc. and, therefore, even if the minimum guarantee units are not consumed, they are bound to make payment for the fuel surcharge. The Division Bench further held that the Circular dated 14th September, 1999, which was under challenge in the writ petition is not an amendment of the tariff, rather it is a mere clarification of the Circular and the sai