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1991 DIGILAW 753 (RAJ)

Delhi Cloth & General Mills Co. Ltd. v. Rajasthan State Electricity Board (68)

1991-09-25

K.C.AGRAWAL, N.L.TIBREWAL

body1991
AGRAWAL, C.J.- The appellant M/s Delhi Cloth Mills owns a number of industrial units in Kota, one of them being M/s Shriram Fertilisers and Chemicals. In order to provide for the rationalisation of the production and supply of the electricity, the Parliament enacted the Electricity Supply Act, 1948 (Act No. 54 of 1948) (hereinafter referred to as the Act). 2. Government of Rajasthan constituted State Electricity Board (hereinafter referred to as the RSEB) under section 5 of the Act. Section 49 of the Act provides for the sale of electricity by the Board to persons other than licensees. In exercise of power conferred by section 49 of the Act, the Board has been framing tariffs laying down the conditions from time to time for the supply to electricity to its consumers. In the year 1964, general tariff was laid down, which contained a fuel adjustment clause. This was modified on 6.07.1966 and 6.04.1969. The changes made are not relevant for the purpose of the present case before us. 3. An agreement took place between the appellant and the RSEB on 8.02.1973 for the supply of 6 MW power to Industrial Unit M/s. Shriram Fertilisers and Chemicals, Kota. This agreement was supplemented by another agreement dated 15.12.1981 whereby the RSEB agreed to enhance the supply of power to 25 MW to the aforesaid industrial unit. 4. The tariff was again modified on 28.05.1974 and fuel adjustment clause was modified. The relevant clause is being quoted below: — "Fuel Adjustment Clause :- The rate per unit sold under the High Tension Tariff Schedules LP/HT.-l and DL/HT.-2 shall be varied according to the annual rate of fuel surcharge, which shall be worked out as per the following formula: — A1 x A2 + B1 x B2 + C1 x C2 / (A2 + B2 + C2 + D) x 0.85 Where - A1 — Rate of Fuel Surcharge per unit worked out at Thermal Power Houses in Rajasthan. A2 — Units generated by Thermal Power Houses in Rajasthan. B1 — Rate of fuel surcharge per unit worked out for Satpura Thermal Station. B2 — Units generated against Boards share from Satpura Thermal Stations. C1 — Fuel surcharge in paise per unit levied by the Rajasthan Atomic Power Project on the bulk purchase by the Board. C2 — Units purchased by the Board from Rajasthan Atomic Power Project. B1 — Rate of fuel surcharge per unit worked out for Satpura Thermal Station. B2 — Units generated against Boards share from Satpura Thermal Stations. C1 — Fuel surcharge in paise per unit levied by the Rajasthan Atomic Power Project on the bulk purchase by the Board. C2 — Units purchased by the Board from Rajasthan Atomic Power Project. D — Units received in Rajasthan from the hydel sources." 5. A new tariff was thereafter framed for supply of electricity which had been notified on 4.11.1976. This tariff also contained similar fuel adjustment clause, but heavy water surcharge was additionally included. This notification of 1976 was superseded by another notification dated 30.12.1987 but no changes were made in the fuel adjustment clause. 6. Thereupon, tariff for supply of electricity, 1976 was superseded by a notification dated 7.07.1981 whereby a new tariff for supply of electricity, 1981 was framed. This contained fuel adjustment clause for the large industrial load consumers. 7. After 1981, the RSEB further revised tariff for supply of electricity by a notification dated 6.03.1982, but the same is not relevant for the purpose of this case. The appellant admitted in the writ petition that the Board is empowered to levy charges for supply of electricity in accordance with the provisions of the Act, with concurrence of the State Government but averred that it had no power to revise the said charges in the garb of fuel adjustment clause without the concurrence of the State Government. 8. On the basis of enhanced fuel charges, the appellant was issued bills by the RSEB for the months May, 1974 to April, 1977, which levied fuel surcharge at the prevailing market rates. The appellant denied the payment of fuel surcharge on the assertion that there being no difference between the annual rate of surcharge provisionally determined by RSEB and the final annual rate of surcharge, as calculated after the completion of the year, the RSEB could not issue any revised bill under the fuel adjustment clause of the years 1974 to 1977. 9. According to the appellant, fuel surcharge was regularly paid in toto and the details furnished in paragraph 17 of the writ petition are quoted below: — Feb. 9. According to the appellant, fuel surcharge was regularly paid in toto and the details furnished in paragraph 17 of the writ petition are quoted below: — Feb. 71 to March 72 0.44 p/KWH April 72 to March 73 0.56 p/KWH April 73 to March 74 0.5 p/KWH April 74 to March 75 0.4 p/KWH Till June 1981 0.40 p/KWH From June 1981 0.63 p/KWH From August 1981 1.00 p/KWH From January 1982 2.5 p/KWH 10. The appellant disputed enhancement of fuel surcharge as the payment had been made @ 40 paise per KWH provisionally on the ground that as the final adjustment had already been made, no further revision was permissible under the Act. By a bill no. RSEB/DEO/Comml/HTB/BF/HT/KC-2/1193 dated 12.11.1982, a sum of Rs. 26,65,043.48 was claimed by the RSEB on account of revision of fuel surcharge for the months May 1974 to April 1977 consequent upon final determination of rates in the manner specified in the bill. Details of the amount have been given in para 20 of the writ petition. 11. In the writ petition, it was alleged that vide its letter dated 25th Nov. 1982 the appellant-company called upon the Board to give the data and calculation sheet of the alleged adjustment of the fuel surcharge but RSEB did not supply the same. It was thereafter that the writ petition was filed for a number of reliefs. The main ground was that the formula prescribed under the fuel adjustment clauses for determining the annual final rate of surcharge was arbitrary, illegal and violative of the Act and Article 14 of the Constitution. 12. The RSEB in its counter affidavit justified the bills and asserted that since the appellant company had agreed to the payment of fuel charges clause contained in the agreement, it thereby agreed to pay fuel surcharge as and when final rates were worked out. According to the RSEB, rate is a matter of legislative policy and, therefore, is immune from challenge. 13. The learned Single Judge dismissed the writ petition recording a finding that the calculation of final fuel charge was made according to the formula prescribed in the fuel adjustment clause. 14. Sri Paras Kuhad, learned counsel for the appellant urged that the formula for calculation of final fuel charge had not been correctly worked out and as the same was arbitrarily arrived at, was liable to be quashed. 14. Sri Paras Kuhad, learned counsel for the appellant urged that the formula for calculation of final fuel charge had not been correctly worked out and as the same was arbitrarily arrived at, was liable to be quashed. His argument was followed by a number of other learned counsel who appeared for the appellants in the connected appeals. 15. The question that crops up for determination in this appeal is whether the final fuel charges had been made in accordance with the formula quoted above in this judgment. The challenge of the learned counsel for the appellant was that the bill had to be prepared within the year regarding which demand had been made and if that year was permitted to pass, the RSEB did not have any power after the expiry of that year to issue bills and to claim fuel surcharge. Learned counsel for the appellant placed reliance on the following clause : — "At the end of each year, the Board shall work out the rate of fuel surcharge as per the above formula and the rate per unit of fuel surcharge so worked out shall be made applicable for the units sold at HT tariff during the respective year. In this the decision of the Board will be final and binding on the consumer," 16. The interpretation of this clause is most crucial for the determination of the controversy involved in this case. The contention of the learned counsel for the appellant is that the last point upto which RSEB could calculate the fuel surcharge in accordance with the formula, quoted above, is the last date of each year and if it is not so done, there can be no calculation afterwards and final fuel charge has to be claimed on its basis. The submission of the other side, however, was that the aforesaid clause does not mean beginning or middle of the year but it means that fuel surcharge has to be calculated for the units sold at HT tariff during the whole year. According to the learned counsel for the respondents, even after completion of a particular year, fuel surcharge per unit can be calculated in accordance with the formula and the sum, arrived at by such formula, can be demanded from the consumer. According to the learned counsel for the respondents, even after completion of a particular year, fuel surcharge per unit can be calculated in accordance with the formula and the sum, arrived at by such formula, can be demanded from the consumer. It is wrong to interpret that the same can be calculated during the year or before the end of the year in question. 17. After hearing learned counsel for the parties at length we are of the view, that the stand taken by the learned counsel for the respondents is correct. All of the points of the formula can not be worked out till the year is over and as such, it is not possible to accept that the fuel surcharge, if not calculated before the expiry of the year, cannot be claimed later on and the right of RSEB to realise the same is extinguished. The liability of the appellant to pay fuel surcharge has been incurred in accordance with the agreement. The consumer can be discharged fully only after the amount is calculated in accordance with the aforesaid formula. At the end of the year does not and cannot mean that it should be done before the expiry of a particular year. 18. Normal rule of interpretation of the clause, aforesaid, for finding out its true meaning, is to bear in mind the context. If the context is forgotten the clause will become redundant. It gives the facility to the consumer to pay final fuel surcharge after it is worked out in accordance with the formula mentioned above. For collecting the various figures of the formula to determine the liability, time is bound to be spent. Most of the figures required for calculation, have to come from out side or from third source. The emphasis of the learned counsel for the appellant that they are readily available to the RSEB, is not correct and is not acceptable to us. It is not necessary for us to mention the various figures and to demonstrate that the submission of the learned counsel for the appellant has no legs to stand upon. 19. The emphasis of the learned counsel for the appellant that they are readily available to the RSEB, is not correct and is not acceptable to us. It is not necessary for us to mention the various figures and to demonstrate that the submission of the learned counsel for the appellant has no legs to stand upon. 19. Learned counsel for the appellant intended to broaden the scope of his argument by taking illustrations, and urging that if RSEB takes ten years to calculate the final fuel surcharge, the consumer would be put not only to great inconvenience but also to actual financial loss inasmuch as the fuel charge, which will have a bearing on the goods produced, could not be realisable after the figures being actually worked out and in some cases the right of the consumer would be lost by lapse of time. 20. Illustrations and examples taken orally by the learned counsel for the appellant did not satisfy us. Even if that is so, it is not the reason that the agreement should be given meaning other than one which it actually bears out. Words are partly known by their backgrounds, their pasts, like men; and like men they do not have their full significance when standing alone but are known by the company they keep. A word is essentially contained in a context and the full effect of the word is felt only when it appears in context. Context prepares the correct interpretation of the words by indicating at least the direction or sphere in which the topic is to be sought, and in many cases it indicates the topic much more precisely: we know what the other man is talking about. (See G.Stern Meaning and Change of Meaning 144 (1931). 21. Thus, the rule of interpretation is fully applicable to the cases of contract as well. If the contract has to be read as a whole and meaning has to be given to this clause, we must hold that calculation of fuel surcharge could be worked out for the units sold at HT tariff at any time after the year in question was over. It is the decision of the RSEB, which is final in this regard and binding on the consumer. The appellant willingly agreed to abide by the calculation to be arrived at by RSEB in the agreement. It is the decision of the RSEB, which is final in this regard and binding on the consumer. The appellant willingly agreed to abide by the calculation to be arrived at by RSEB in the agreement. Now it is not open to the appellant to challenge its correctness. 22. It has been held in Bihar State Electricity Board vs. M/s. Rubber Industries and others (1) that a supply agreement to a consumer makes his relation with the Board mainly contractual, where the basis of supply is held to be statutory rather than contractual. In cases where such agreements are made the terms are supposed to have been negotiated between the consumer and the Board. In the instant case also, there have been several agreements executed in between the parties and the appellant must be presumed to have known about the final fuel charges being payable by him on calculation. In the clause of the agreement, quoted above, it is specifically mentioned that the decision of the Board will be binding on the consumer. He cannot get away or get rid of it by advancing an argument that the calculation could be done during the year in which supply had been made and not afterwards. If we were to examine the various constituents needed to be considered at the time of determination of price, it would be apparent that the same can only be done after the end of that year. 23. In paragraph 3 of the counter affidavit, it has been averred that the cost of fuel including coal, uranium oil and heavy water is rising day by day. The prices at which uranium and heavy water is imported is uncertain and depends on many factors. At the time the tariffs are framed, the Board is not in a position to know exactly what would be required to spend on the fuel and other components. There appears to be nothing wrong in this averment and we agree with the same. Having considered all the components and other relevant facts, we find that it was impossible for RSEB to collect all the components in arriving at the final annual rate of fuel surcharge before the end of the year. It could be or had to be done subsequently. Having considered all the components and other relevant facts, we find that it was impossible for RSEB to collect all the components in arriving at the final annual rate of fuel surcharge before the end of the year. It could be or had to be done subsequently. The tariff agreement was being understood by both the parties in this way and we are of the view that unreasonable argument was advanced by the learned counsel for the appellant for avoiding payment of fuel charges. The liability continued and as already said above, the appellant could be discharged only when the entire amount had been paid. The conduct of the parties as to how they have been treating the agreement arrived at between them is the best evidence and if one wants to argue against the conduct, he cannot be heard making the same. There was no ambiguity in the agreement. It was crystal clear and a reading of the relevant clauses leaves no room for doubt that the final fuel charges had to be made after calculation to be arrived at taking the various components of the same into account, as is mentioned in the beginning of the same and quoted by us in the body of this judgment. Perhaps the most serious disease of language, as has been said by Reed Dickerson in his book The Interpretation and Application of Statutes, is ambiguity in the traditional sense of equivocation. Fortunately that is not so in the present case. 24. Lengthy arguments were addressed before us for not producing the documents which were summoned during the course of hearing of the writ petition in the High Court. According to the learned counsel for the appellant, if those documents are brought on record, it can be established that RSEB had taken into consideration irrelevant components for arriving at the rate of final fuel adjustments and as such, omission to do so highly prejudiced the appellant. In this regard, we would prefer to refer a portion of the judgment of the learned Single Judge, wherein it has been observed as follows : — "....In the application filed on April 13, 1983 it has been prayed that the Board should be directed to produce the complete records and details of computation of the figures furnished by it. In this regard, we would prefer to refer a portion of the judgment of the learned Single Judge, wherein it has been observed as follows : — "....In the application filed on April 13, 1983 it has been prayed that the Board should be directed to produce the complete records and details of computation of the figures furnished by it. I see no valid justification for giving a direction to the Board for placing the complete record and details of computation of figures furnished by it for verification of the same by the petitioners. Neither it is feasible nor in the public interest nor it is a legal right of the petitioners to see the complete record with regard to the various figures submitted by the Board in working out each component of the formula. The only right available to the petitioners in this regard is to object that any extraneous matter cannot be included in working out the formula. From the details given out by the Board for working out the formula it was clear that the element of ....." No affidavit of any counsel or appellant has been filed in this appeal or in the connected appeals rebutting or controverting the facts stated in the judgment of the learned Single Judge. We, therefore, respectfully agree with the learned Single Judges aforesaid observations. Neither the writ petition nor the special appeal can be converted into a suit and the jurisdiction of the High Court is to judge about the price fixation as to whether it suffers from an error apparent on the face of record. Learned counsel for the appellant referred to a number of rulings in support of his argument but as they are of no help, we refrain from mentioning them. 25. Great stress was laid by the learned counsel for the appellant on the effect of the revision of tariff every year regarding which demand was being made by RSEB. The contention of the learned counsel for the appellant was that the liability of the appellant ceased on the repeal of the tariff of each year and that no demand could be made thereof. He laid emphasis on the word supersession used in all the notifications and urged that the earlier notification would be deemed to have been obliterated and liability ceased. He laid emphasis on the word supersession used in all the notifications and urged that the earlier notification would be deemed to have been obliterated and liability ceased. He referred to a number of decisions, amongst them, strongly relied upon were Mary Roy and ors. vs. State of Kerala and ors. (2) and India Tobacco Co. Ltd. vs. The Commercial Tax Officer, Bhavanipore and ors. (3). In the latter case, it was held as under : — "Repeal is not a matter of mere form but one of substance, depending upon the intention of the Legislature. If the intention indicated expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by super adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal. Broadly speaking, the principal object of a repealing and amending Act is to excise dead matter, prune off superfluities and reject dearly inconsistent enactments." 26. The crux of the argument of the learned counsel was that the effect of repeal was to raise the tariff of the year altogether and that its liability ceased. The submission is unfounded inasmuch as the appellant had incurred a liability under the contract for making payment of the final fuel amount unless he had received a discharge recognised by law of contract. Obligation had been incurred and the only method was to have paid the amount on the calculation being done. The decisions, aforesaid, relied upon by the learned counsel have no application to the controversy in issue. They were given on their own facts. A decision is an authority what it actually adjudicates. 27. The learned Advocate General appearing on behalf of the State of Rajasthan submitted, and in our opinion rightly, that RSEB had acquired a right to realise the price of final fuel charges and it could not be denied the same by adopting the subterfuge. The process of quantification, which had to be completed and finalised before actual amount was determined, needed sufficient time to be spent and the contention of the learned counsel for the appellant that the claim had become barred by time, was baseless. The process of quantification, which had to be completed and finalised before actual amount was determined, needed sufficient time to be spent and the contention of the learned counsel for the appellant that the claim had become barred by time, was baseless. We are in agreement with this submission. Till the amount was calculated and demand notice had been given to the appellant, no liability accrued and there was no question of any limitation in this regard. The agreement did not provide for any period, during which the quantification had to be done and completed. As a matter of fact, the process involved was such that it was bound to take time. If time was spent in finding out the amount, the appellant had retained money and it must have been utilising the same for its advantage. Now, the appellant cannot bonafidely and genuinely make any complaint for late determination. 28. Now, coming to the word supersession, we are unable to find substance in the argument of Sri Paras Kuhad. The appellant was not absolved or discharged of the liability already incurred. Hence, the submission has no substance. 29. Learned counsel for the appellant next urged that the process of determination of amount was quasi-judicial calculation being done. The decisions, aforesaid, relied upon by the learned counsel have no application to the controversy in issue. They were given on their own facts. A decision is an authority what it actually adjudicates. 30. The learned Advocate General appearing on behalf of the State of Rajasthan submitted, and in our opinion rightly, that RSEB had acquired a right to realise the price of final fuel charges and it could not be denied the same by adopting the subterfuge. The process of quantification, which had to be completed and finalised before actual amount was determined, needed sufficient time to be spent and the contention of the learned counsel for the appellant that the claim had become barred by time, was baseless, We are in agreement with this submission. Till the amount was calculated and demand notice had been given to the appellant, no liability accrued and there was no question of any limitation in this regard. The agreement did not provide for any period, during which the quantification had to be done and completed. As a matter of fact, the process involved was such that it was bound to take time. The agreement did not provide for any period, during which the quantification had to be done and completed. As a matter of fact, the process involved was such that it was bound to take time. If time was spent in finding out the amount, the appellant had retained money and it must have been utilising the same for its advantage. Now, the appellant cannot bonafidely and genuinely make any complaint for late determination. 31. Now, coming to the word supersession we are unable to find substance in the argument of Sri Paras Kuhad. The appellant was not absolved or discharged of the liability already incurred. Hence, the submission has no substance. 32. Learned counsel for the appellant next urged that the process of determination of amount was quasi-judicial and the appellant was not only entitled to see the evidence on the basis of which calculation had been made but also to a hearing. The hearing to which the learned counsel was referring can be considered as post-decisional hearing. The idea of post-decisional hearing has been developed to maintain a balance between administrative efficiency and fairness to the individual (See Maneka Gandhi vs. Union of India (4). This was followed by Supreme Court in Swadeshi Cotton Mills v. Union of India (5). 33. The details of this principle of post-decisional hearing need not be considered by us inasmuch as a person is entitled to get a post-decisional hearing if he was entitled to be heard before the decision was given but he was not given opportunity. In other words, a person, who is not entitled to get pre-decisional hearing cannot be entitled to post-decisional hearing. This method has been evolved to satisfy those cases where pre-decisional hearing could not be provided. In the instant case, there was no question of pre-decisional hearing. 34. The process of tariffs, as envisaged by S. 49 of the Act, is legislative in character. If one scrutinises the various steps, which are necessary to be taken for finalisation of tariffs, it would be found that it is placed before the Legislative Assembly for its approval. It is thus a piece of legislature and the contention of the learned counsel for the appellant that it was passed without hearing, cannot invalidate the same. If one scrutinises the various steps, which are necessary to be taken for finalisation of tariffs, it would be found that it is placed before the Legislative Assembly for its approval. It is thus a piece of legislature and the contention of the learned counsel for the appellant that it was passed without hearing, cannot invalidate the same. In Tharoo Mal vs. Pooran Chand (6), the Supreme Court held as under : — "There is no right to be heard before the making of legislation whether primary or delegated unless it is provided by statute. In matter of fixation of municipal rates, the right to object given at the stage of the proposals of the tax only as concession to the requirement of fairness even though the procedure is legislative and not quasi-judicial." 35. In Hindustan Zink Ltd. vs. Andhra Pradesh State Electricity Board (7), the Supreme Court followed its earlier decision rendered in Kerala State Electricity Board vs. S.N. Govinda Prabhu (8). In that case, the main question related to the extent of authority of the Board to increase the electricity tariff under the Act. The principal ground of challenge, accepted by Kerala High Court, was that the Kerala State Electricity Board acted outside its statutory authority by formulating a price structure intended to yield substantial revenue to offset not merely the expenditure properly chargeable to the revenue account for the year as contemplated by S.59 of the Act but also expenditure not so properly charge-able. The judgement was reversed by the Supreme Court holding that prescribing of different tariffs for different classes was based on intelligible differentia and the Court could not reverse the same. 36. Coming to the question of observance of procedure of post decisional hearing, we have already held that there was no such need in the present case. Paul Jackson in his book Natural Justice, has dealt with the same at page 18 in the following words : — "The principles of natural justice are of wide application and great importance but they must be confined within proper limits and not allowed to run wild." (per Megarry J. in Hounslow L.B.C. v. Twickenham Garden Developments (1971) Ch. 233, 258)" 37. In the beginning of the judgment we have already held that in preparation of bills for the fulfilment of liability as per agreement, no principle for tariffs needs be given. 233, 258)" 37. In the beginning of the judgment we have already held that in preparation of bills for the fulfilment of liability as per agreement, no principle for tariffs needs be given. If any person has any objection with regard to the calculation relating to addition or substraction in arriving at the figure, which may be of a clerical nature he is free to file objection. But where , as in the present case, no such controversy is involved, we cannot quash the recovery merely on the so called impression that the demand was not justified having not been made in accordance with the components mentioned in the agreement. Permitting of such a course to be adopted would lead to endless litigations and the demand of the Board would never be met even if it is just and proper. 38. Why are reasons required to be given and at what stage and for what purpose, is a mute question, which arises in this case to meet the argument of the learned counsel for the appellant that in the absence of reason, the demand is unjustified. The bills prepared were in accordance with the constituents. They themselves are the reasons and nothing further is required. 39. The next argument was regarding promissory estoppel. How could it apply in the instant case when the parties had entered into an agreement and demand was made on its basis, is beyond our comprehension. Moreover, what was said in Vasantkumar Radhakishan Vora vs. The Board of Trustees of the Port of Bombay (9) about the promissory estoppel, is the complete reply to the submission, the same is quoted below : — "The doctrine of promissory estoppel is now well established one in the field of administrative law. This principle has been evolved by equity to avoid injustice. However, promissory estoppel cannot be used compelling the Government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. This principle has been evolved by equity to avoid injustice. However, promissory estoppel cannot be used compelling the Government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. The doctrine of promissory estoppel being an equitable doctrine it must yield place to the equity, if larger public interest so requires, and if it can be shown by the Government or public authority for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it. Promissory estoppel should not and cannot be extended, though it may be founded on an express or implied promise stamped from the conduct or representation by an office of the State or public authority when it was obtained to play fraud on the constitution." 40. For the reasons given above, we are of the view that the appeal deserves to be dismissed. As common question of law and facts are involved in the connected appeals as well, they also deserve the same fate. 41. In the result, the appeals fail and are dismissed with costs and counsels fee, which is fixed at Rs. 1500 in each case.