Sinha & Sharma, JJ. In all these writ applications, the petitioners have questioned the validity of tariff Notification of 1993 (hereinafter referred to [Note-Since the judgment is bulky and considering its importance only relevant parts are being printed for the benefits of the members of the bar and subscribers. Editor] as the 1993 Tariff') issued by the Bihar State Electricity Board (hereinafter to be referred to as 'the Board') in terms of the notification dated 23.6.1993 which has come into force with effect from 1.7.1993. The said notification has been Issued by the Board with approval of the State Government and in supercession of the earlier notification dated 26.8.1991. in exercise of its powers conferred upon it under sections 49 and 59 of the Electricity (Supply) Act, 1948 (hereinafter to be referred to as 1948 Act') 2. By reason of the said notification, various changes have been effected in Low Tension Industrial and Medium Power Services, High Tension Industrial Services. Irrigation and Agriculture Consumer's services, Domestic Consumer's Services and also the Commercial Consumer's Services etc. 3. The validity of the said 1993 Tariff has been questioned on various grounds. Attack has particularly been made in relation to clauses 15.2, 15.2(b), 15.3(c), 15.3(b). 15.3(c), 16.10 and 16.44 of the 1993 Tariff and some other clauses of the Schedule appended thereto. x x x x x 72. In view of the aforementioned rival contentions of the parties as noticed herein before the following questions arise for consideration in these writ applications: (a) Whether section 49 and 59 of the 1948 Act are ultravires the Constitution of India ? (b) Whether the 1993 tariff is ultravires Article 14 of the Constitution of India read with Sections 49 and 59 of the 1948 Act ? (c) Whether the Board has been acting in a most efficient and economical manner as contemplated under section 18 (a) of the 1948 Act and If it be not so, whether the 1993 tariff is liable to be struck down on that ground alone ? (d) Whether this court can issue any direction to the Board to improve its generation capacity as also to act in an efficient and economical manner? (e) Whether the levy or the minimum guarantee charges and the demand charges on monthly basis is justified in law? (d) Whether this court can issue any direction to the Board to improve its generation capacity as also to act in an efficient and economical manner? (e) Whether the levy or the minimum guarantee charges and the demand charges on monthly basis is justified in law? (f) Whether the board had any jurisdiction to charge penal rate for short fall in the supply of the electrical energy ? (g) Whether enhancement of the amount In security in terms of clause 15 of 1993 tariff and deletion of the provision about payment of interest on security deposit is valid in law ? (h) Whether clause 16.4 of the tariff, whereby and whereunder the transformer capacity is not to exceed 150% of the contract demand is valid in law and in any event whether the same should be given a prospective effect? (i) Whether clause 16.10 of the Tariff providing for levy of operational surcharge is ultra vires Sections 49 and 59 of the 1948 Act ? (j) Whether levy of fuel surcharge is valid in law? (k) Whether the provisions relating to those L.T. Consumers who had connected load more than 80 Horse Power can be directed to convert the same into High Tension electrical energy is valid in law? (l) Whether the levy of fixed charges on L.T. consumers is ultravires ? (m) Whether the levy of fixed charges on Aircondltioner is permissible under Sections 49 and 59 of 1948 Act? (n) whether clubbing of different Consumers in the same premises is permissible in law? 73. Re: QUESTIONS (a) to (d); All the aforementioned questions are inter related and thus they are being taken up for consideration together x x x x 106. From the statement as noticed hereinbefore it is evident that the Board has accepted the fact that not only it has been making losses, but In fact a huge amount by way of interest etc. are due to be paid which has not been taken into consideration in para - 8 of the supplementary counter affidavit. We wonder why such a statement has been made in the counter affidavit at all. We may, however, note that the petitioners in the writ petitions also have proceeded on the basis that the Board has been running at losses. In fact, as noticed herein before, the submission of Mr. We wonder why such a statement has been made in the counter affidavit at all. We may, however, note that the petitioners in the writ petitions also have proceeded on the basis that the Board has been running at losses. In fact, as noticed herein before, the submission of Mr. Basudev Prasad was that despite the 1993 Tariff the Board would not be able to make up its losses and thus the same is illegal. 107. The provisions of Section 59 of the 1948 Act however, clearly stipulates that subventions are to be given to it by the State Such subventions are required to be given by the State not only for the benefit of' the Board but also for the purpose of implementing its own policy decision relating to supply of electrical energy at a concessional rate to special class to consumers as for example agriculture setor or in order to enable the Board to make Capital investment for supply of electrical energy at a far away places. The State also, grants subsidy to some Industrial Under-takings pursuant to its own Industrial policies formulated by it from time to time. The inefficiency on the part or the Board is also writ large on the face of the report of Comptroller and Auditor General in its report not only commented upon the Inefficiency of the Board, but has also pointed out that it had not been maintaining its account in a proper manner. In paragraphs after paragraphs, it has highlighted as to how the Board had been making wasteful, unnecessary end unprofitable expenditures. It has also been pointed out that the Board had also not properly been maintaining the account of transmission loss etc. 108. It is true that in terms of the provisions of Section 69 (5) of the Act, accounts of the Board have to be placed annualy before the State Legislature. But it appears that even accounts of the year 1989-90 and 1990-91 were pieced before the House on 30.12.1993, i.e. much after framing of the Impugned tariff. 108. It is true that in terms of the provisions of Section 69 (5) of the Act, accounts of the Board have to be placed annualy before the State Legislature. But it appears that even accounts of the year 1989-90 and 1990-91 were pieced before the House on 30.12.1993, i.e. much after framing of the Impugned tariff. We have noticed earlier that the learned Advocate General despite our request to assistants in the matter had not done so, we at this juncture may also note that we bad requested the learned Advocate General to State before us on seeking Instructions as to whether any discussions ever had taken place in either House of the Legislature about the accounts of the Board. But he did not make any statement whatsoever in this regard nor furnished before us the details thereof. x x x x 111. The provisions of Section 18 (a) and (b) as also Section 59 (2)(b) of the 1948 Act cast a statutory duty upon the Board to carry out its operations In most efficient and economical manner. The words properly chargeable also signifies great vigilance on the part of the Board in this matter, Involving revenue expenditures. Section 49 and 59 of the 1948 Act envisage that the Board is to fix uniform tariff having regard to factors enumerated in Section 49 (2) of the Act. However, the Board as indicated hereinbefore undoubtedly has the power to fix different tariff for the supply of electricity to any person, not being a licensee having regard to the qeographical position of any area, the nature of supply and purpose for which supply is required and any other relevant factor. But in doing so It cannot show undue preference to any person. It is true that Section 49 (4) of the 1948 Act is proviso to Sub section (3) thereof But In such a case Article 14 may be attracted. The very fact that even under section 59 (1) of the Act a tariff is to be adjusted after meeting all expenses properly chargeable to revenue is a factor to be taken into consideration as the same also, in our opinion, in unmistakble term shows that the Board has a statutory duty to see that all precautions should be taken by it so that no undue loss in the revenue taken place nor any undue expenditure is incurred. For that matter the State is also required to keep a strict vigil over the affairs of the Board. x x x x x x x 117. Whenever a statutory duty has been cast on a State within the meaning of Article 12 of the Constitution of India, the Supreme Court of India and this Court in exercise of jurisdiction respectively under Articles 32 and 226 of the Constitution have not hesitated in issuing proper directions. It is true that framing of tariff is a legislative function. But the Board is also statutorily obliged and has legal duty to manage its affair in the manner laid down under Sections 18(a) and 59(2)(b) of the 1948 Act. The power to frame tariff is. thus, hedged by the statutory conditions . In such a situation, this Court, in our opinion, can give suitable directions. We, therefore, consider that in this situation the Board should be directed to improve, its efficiency by raising its generation capacity to a substantive level expeditious and preferably within three years from today. We also hope and trust that the State shall from time to time issue necessary guidelines in this regard. 118. The power of this Court to issue a writ of or in the nature of mandamus in the interest of Justice is not in dispute. In Rajat Nath Roy Vs. The State of Bihar 1993 (2) P.L.J.R. Page 348 this court has observed all under :- "The question which now arises for consideration is as to whether this Court should issue a writ of or in the nature of mandamus or a direction upon the respondent Deputy Commissioner to renew the leases of the petitioner. In Shri Anadi Mukta Sadguru Shree Mukherjee Vandasjiswami Suvarne. Jayanti Mahotsav Smarak Trust and others Vs. V.R. udanl and others reported in AIR 1989 S.C. 1007, it was held that under Article 226 of the Constitution, the High Court can issue writs to 'any person or authority for the enforcement of any of the fundamental rights and for any other purpose'. It was further held that the authority used in Article 226 must receive a liberal meaning unlike the term in Article 12 The Supreme Court observed : "Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not Imposed by the statute. It was further held that the authority used in Article 226 must receive a liberal meaning unlike the term in Article 12 The Supreme Court observed : "Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not Imposed by the statute. Commenting On the development of this law professor De Smith states: 'To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been Imposed by charter, common law, custom or even contract (Judicial Review of Administrative Action 4th Ed. P. 540). We shire this view". Reference in this connection may also be made to another decision of the Calcutta High Court in State of West Bengal and others etc. Vs. Nani Gopal Dutta and others reported in AIR 1991 Calcutta 67 wherein the Calcutta High Court observed. 'Mr. Gupta cited next. The Comptroller and Auditor General V.K.S. Jagaonathsn AIR 1987 SC 537 , where the Supreme Court has discussed the circumstances under which the Court can pass a mandatory order or even pass an order or given directions which the Government or public authority should have passed or given had it properly and lawfully exercised its discretions. The decision makes It quite clear that the Court can pass such orders where the Government/Public Authority has failed be exercise or has wrongly exercised the discretion conferred upon it by Statute, or a rule or a policy decision of the Government or has exercised such discretions malafide or in such a manner as to frustrate the object of conferring such discretion. Can it be said that the Government has exercised its discretions in this case wrongly and malafide" In the Comptroller and Auditor General of India Vs. Can it be said that the Government has exercised its discretions in this case wrongly and malafide" In the Comptroller and Auditor General of India Vs. K.S. Jagannathan reported in A.I.R. 1987 Supreme Court 537, the law has been laid down thus : “There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to Issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and giver necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon It by a statute or a role or has policy decision of the Government or has exercised such discretion malafide or on Irrelevant considerations or by Ignoring the relevant considerations on by Imagrine the and materials on in such a manner as to frustrate the object of conferring such discretion of the policy for Implementing which such discretion has been conferred. In all such cases and in any other fit and proper case, a High Court can in the exercise of its Jurisdiction under Article 226 Issue a writ of mandamus or writ in the nature of mandamus or pass orders and give directions to compel the performance In a proper and lawful manner of the discretion conferred upon the Government or a public authority and in a proper case, in order to prevent injustice resulting to the concern or parties Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. “Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute, Commenting on the development or this law professor Desmith state : “To be enforceable by mandamus to public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been Imposed by charter, common law, custom or contract.” (Judicial Review of Administrative Action 4th Ed, p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It may be sufficient for the duty to have been Imposed by charter, common law, custom or contract.” (Judicial Review of Administrative Action 4th Ed, p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It would remain flexible to meet the requirements of variable circumstances, Mandamus is a very wide remedy which must be easily available to reach in justice wherever it is found. Technicalities should not stand in the way of granting that relief under Article 226 we. Therefore, reject the contention urged for the appellants on the maintainability of the writ petition." “In Halsbury's Laws of England Vol 1/1 4th Edition it is stated that the purpose of issuance of a writ in the nature of mandamus is to remedy defects of justice and accordingly It will issue to the end that justice may be done in all cases where is a specific legal right and no specific legal remedy for enforcing that right. It is a discretionary remedy and may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient beneficial and effective," We are not oblivious to the fact that this Court cannot supervise the affairs of the Board from day to day. We, therefore, request the Central Electricity Authority to form a committee within one month from the date of receipt of a copy of this order ; comprising of expert in the field which would suggest ways and means for improvement in the condition of the generation and supply of electrical energy to the Board, The entire expenses of the Committee shall be borne by the Board. The committee should submit Its report within a period of six months thereafter before the State Government. We have no doubt In out' mind that the State Govt. Shall issue necessary direction in exercise of its jurisdiction under section 78 A of 1948 Act and see to it that the recommendations of the aforementioned expert committee be implemented forth with. The committee shall consist of two members nominated by the Central Govt., two members by the Central Electricity Board and one member by the State Govt. 119. Shall issue necessary direction in exercise of its jurisdiction under section 78 A of 1948 Act and see to it that the recommendations of the aforementioned expert committee be implemented forth with. The committee shall consist of two members nominated by the Central Govt., two members by the Central Electricity Board and one member by the State Govt. 119. We also request the Comptroller and Auditor General of India to cause an uptodate auditing of the accounts of the Board made forthwith' by an expert team which may also suggest ways and means for improvement the conditions of the working of the Board to its authorities pointing out the areas of deficiencies. The aforesaid committee shall take into consideration the report or the Comptroller and Auditor General of India in this regard. 120. We hope and trust that keeping in view the pitiable condition of the consumer of the electrical energy who are made to pay through their noses to see that the adequate steps are taken to ameliorate their difficulties. Probably, restructuring of the Board is also necessary in public interest, keeping In view the financial emergency faced by the Board as also the high degree of its inefficiency. 121. Question No. (e) : It is not in dispute that minimum guarantee charges used to be charged on annual basis- However, in 1991 tariff provision was made for payment of minimum guarantee charges and maximum demand charges on monthly basis. Clause 15.2. (b) of the tariff reads thus : “15.2 (b) in respect of energy charge : It shall be chargeable annually in the manner as indicated below. but it win be realised on monthly basis. Final adjustment will be given in the last bill of financial year. However, in case of a new point of supply, it shall be chargeable on pro-rate basis from the month in which connection was given for the remaining months or part thereof. of that financial year. (i) for 11 KV services (HTS-I): energy charge basis on load factor of 25 percent and power of 85 percent on contract demand shall be payable at the rate of 238 paise per unit. (ii) for 33 KV services (HTS-II)-energy charge basis on load factor of 85 percent on contract demand shall be payable at the rate of 218 paise per unit. (ii) for 33 KV services (HTS-II)-energy charge basis on load factor of 85 percent on contract demand shall be payable at the rate of 218 paise per unit. (iii) for 132 KV extra high tension service (EHTS) Energy charge based on load factor of 50% and power factor of 85 percent on contract demand shall be payable at the rate of 195 paise per unit. (iv) for 132 KV/25 KV railway traction service (RTS) - energy charge based on load factor of 25 percent and power factor of 85 percent on contract demand shall be payable at the rate of 262/268 paise per unit respectively. An almost similar provision in 1991 was the subject matter of decision of a Division Bench of this Court in the case or Bihar Chambers or Commerce (supra) The Division Bench, Inter alia, had held that the system of calculation on monthly basis introduced is the said tariff' is irrational and unreasonable as well. The Board thereafter by reason of the impugned Tariff made a provision to the effect that although the annual minimum guarantee charges will be charged on annual basis but the same would be proportionately realised every month. x x x x x 133. In view of the decision of the Supreme Court in Dhanawat Rice & on Mill's case and Green Rubber Industries case (Supra), it is difficult to uphold the contention of the petitioners' counsel that in view of the inability on the part of the Board to supply electrical energy 24 hours a day and 365 days a year the levy of minimum guarantee itself is illegal. The Supreme Court clearly held that constant supply does not mean continuous supply. However, the concept of levy of annual minimum guarantee charges was that in a given situation the consumer must consume at least 25% of the supply of electrical energy in a day minimum thereby six hours a day. 133. An industry, however, may be a seasonal industry and the demand of taking supply of electrical energy by the industry may vary from case to case. It is true as has been pointed out by Mr. Reddy that in view of the circular issued by the Board, it would not levy any shortfall char upon the consumers consuming the electrical energy to the extent of annual minimum guarantee units. It is true as has been pointed out by Mr. Reddy that in view of the circular issued by the Board, it would not levy any shortfall char upon the consumers consuming the electrical energy to the extent of annual minimum guarantee units. but such a circular was not necessary as even otherwise in law the Board could not have levied any charges by any of minimum guarantee after the consumers satisfy the requirements therefor. 134. The impugned provisions of the tariff, however, has to be construed upon taking into consideration the fact that so long the annual minimum guarantee charges is not consumed the short fall In relation thereto is to be charged at the penal rate. The excess amount lies with the Board through out the year and no time limit has been provided for the refund of the excess amount. No reason for less any cogent reason has been made out for effecting a charge in the long standing practice. The provision in the tariff appears to be a device to achieve same object which was sought to be done by the Board in its 1991 tariff despite the same having been struck down by the Court in Bihar Chamber of Commerce's case (Supra). It has also to be borne in mind that in terms of 1993 tariff the Board has made provisions for two way tariff In place of one way tariff 135. In this view of the matter, we are of the opinion that the provision of levy of proportionate minimum guarantee charges on monthly basis is illegal and Board can realise such charges only on annual basis. 135(a). It has, however, been submitted that the petitioners of C.W.J.C. No. 8740 are consumers of High Tension electrical energy and If the supply of electrical energy of the industry of the petitioner is disrupted for two minutes the same would affect on the working of the factory und owing to disruption it would have to revise the entire process once again. The Supreme Court in M/s. Indian Aluminiam case (supra) has categorically held that Sections 49 and 59 of the 1943 Act do not debar the Board from entering into special contract with the consumers. The Supreme Court in M/s. Indian Aluminiam case (supra) has categorically held that Sections 49 and 59 of the 1943 Act do not debar the Board from entering into special contract with the consumers. In a case of this nature, In our opinion, the petitioners may hold the Board liable for damages but in our view the entire tariff cannot be struck down because a few consumer could be put to extra Inconvenience. Even clause 13 of High Tension Agreement would not apply. In such case, The remedy of the petitioners. In our opinion, would only be to ask to the Board to enter into special agreement In this regard. We have no doubt that the Board, being the State within the meaning of' Article 12 of the Constitution of India and having been exercising monopoly power In the matter of supply of electrical energy, would act fairly if a special category consumers have opted to enter into a special agreement with it. keeping In view the difficulties faced by such type of consumers. 136. .Re: Question no. (f) : It is not disputed that whereas for consumption or electrical energy by the consumer's 1.72 paise per unit is to charged; Rs. 2.38 paise per unit has to be for short fall. Mr. Reddy submitted that the said provision has been made for the purpose of enforcing discipline amongst the consumers. The stand taken by the Board appears to be self contradictory. It has not at all been disputed that the generation capacity of the board is low and It is not in a position to meet the demand of all the consumers It is also not disputed that there is large scale trippings, and power cuts and the consumers in general greatly suffer by reason of non-supply of electrical energy. We can also take judicial notice of the fact that the supply of electrical energy in Bihar is so arratic that hardly on any day of 365 days in year there is constant supply. In many towns in Bihar', electrical energy is supplied only for a few Hours in a day. In such a situation, the question of imposing any discipline amongst the consumer by charging a higher rate for non-consumption of electrical energy in our is wholly irrational and will have a disastrous effect. In many towns in Bihar', electrical energy is supplied only for a few Hours in a day. In such a situation, the question of imposing any discipline amongst the consumer by charging a higher rate for non-consumption of electrical energy in our is wholly irrational and will have a disastrous effect. In a given situation, a consumer may unnecessarily waste electrical energy only with a view to meet the short fall so as to enable him to avoid the payment of additional amount by way of higher rate of electrical energy payable by him in case of short fall. There cannot by any doubt that the Board has the requisite jurisdiction to alter the conditions of supply, but alteration of such condition must be reasonable and not arbitrary. X x x x x 139. The learned counsel for the petitioners are however, not correct in contending that in such matter there must be an adjodicating forum and the principles of natural justice must be complied with. We also do not find any merit in the submission that before imposing such a penalty the element of mens-rea must be proved. Charging higher rate for supply of electrical energy by way of condition of supply in terms of the provisions of Section 49 and 59 or the Act is legislative in character and thus for enforcing the said provision, it is neither necessary to provide for an adjudicating machinary, wherein the question of existence of mens rea on the part of the consumer can be, one into nor therefor the principles of natural justice are required to be complied with. 140. In our view, therefore, the Board cannot charge a higher rate for the short fall in taking supply of electrical energy by the consumer 141 Re : QUESTION No. (g): Clause 15.3 of the Tariff in question mandates the consumers to deposit which is due from the consumers to the Board in respect of supply of energy on credit. It further provides that no interest would be paid towards the deposit of security. The said security amount had to be deposited in cash in terms of Sub-clause (e) of Clause 15.3 of the Tariff. The Security deposit is to cover three months of estimated consumption subject co the minimum as referred to therein. X x x x x x 143. The said security amount had to be deposited in cash in terms of Sub-clause (e) of Clause 15.3 of the Tariff. The Security deposit is to cover three months of estimated consumption subject co the minimum as referred to therein. X x x x x x 143. Clause, 15.3 (b) and 15.3 (e) read thus: "15.3 (b) The amount of security deposit to be paid before commencement of supply shall cover three months estimated consumption subject to following minimum. (i) For domestic (Ruler), Commercial (Rural) & Streetlight service Rs. 150/- connection. (ii) For Domestic (Urban) Rs. 400/-per KW per connection. (iii) For irrigation & agriculture service Rs.100/-per H.P. per connection. (iv) For LTIS-I, a sum of Rs. 300/-per BHP or part thereof and for LTIS II a sum of Rs. 400/-per BHP or part thereof. (v) For service for which minimum base charge has been specified in clause 15.2, the security deposit shall be equal to three months minimum charges. 15.3 (e) The entire amount of security deposit in case of all categories of consumers will be deposited in cash. " x x x x x x x 151. In view of the fact that we do not find that any sufficient or cogent reason has been assigned by the Board in refusing to pay 4% Interest on the security deposit and thus, In our opinion, the same is contrary to the decision of the Supreme Court In the FACOR’S case (Supra). 152. In our opinion, therefore, the Board Is liable to grant interest on the security deposit to the consumers. 153. Re: Question no. (h) : Clause 16.4 and 16.4 (1) read thus :- 16.4: TRANSFORMER CAPACITY 16.4.1: The Transformer capacity of M.H.T. and E.H.T. consumers shall not be more than 150 per cent of the contract demand. It has not been disputed that such a provision existed in 1983 tariff as well as in 1991 tariff. The learned counsel appearing on behalf of the petitioners have not disputed that the Board has the power to alter the terms and conditions of the supply of the electrical energy. The submission of the learned counsel, however, is that such a provision should not be given a retrospective effect. The learned counsel appearing on behalf of the petitioners have not disputed that the Board has the power to alter the terms and conditions of the supply of the electrical energy. The submission of the learned counsel, however, is that such a provision should not be given a retrospective effect. It has been pointed out that the Bihar State Electricity Board, keeping in view the difficulties which may be faced by the consumers, agreed to give a prospective operation and thus the doctrine of contemporanea espositio should be applied in such a case. X X X X 161. In our considered view, the doctrine of 'contemporanea elpositio' has also no application in the facts, and circumstances of the case, In as much as neither the Board nor the consumers Interpreted the said provision to have only prospective was not Implemented by the Board and/or kept In abeyance. See A.I.R. 1993 S.C. 2288. 162 It Is true that by reason of 1999 tariff a provision has been Introduced that is a consumer is found violating the said provision his service connection may be disconnected but then again, in our opinion on that ground alone such a provision cannot be struck down on the ground of arbitrariness. We may note here that Mr. Reddy appearing for the Board has drawn our attention to circular that the Board would not implement the said provision immediately. It was further submitted by Mr. Reddy that the Board will have no objection whatsoever if sufficient time is granted to the consumers for changing their transformers and/or for taking steps for increasing their contract demand. 163. Having considered the fact that some of the consumers have been utilising their transformers for a long time and further keeping in view the fact that the same may require some time for arranging additional resources and also for procuring new transformer six months time should be considered a reasonable period for this purpose. 165. Re: Question No. (i) & (j). Clause 16.10 of the Tariff reads thus : 16.10.1 : Tariff rates of CS categories. 165. Re: Question No. (i) & (j). Clause 16.10 of the Tariff reads thus : 16.10.1 : Tariff rates of CS categories. of I & II, L.T. Industrial Service, H.T Service EHT service and Railway Traction Service are subject to operational surcharge i.e. all consumers of the aforesaid categories shall be required to pay operational surcharge at a rate to be determined every year In accordance with the other charges as laid down In the tariff schedule: 16.10.2 : Operation surcharge shall consist of two elements, namely (a) Fuel Surcharge (SI) and (b) Other operational surcharge (S 2). The operational surcharge (s) in paise per unit would thus be S=S1 + S2 166. The power of the Board to frame tariff is hedged by the conditions enumerated. In Section 49 and 59 of 1948 Act. The Board, therefore, has no power to Increase the tariff as its sweet will without taking recourse to the provisions of the Act. 168. Further Increase in the cost of fuel surcharge necessitates Increase in fuel surcharge which is not in the hands of the Board it cannot and does not have any control over the costs of coal or other fuel which are necessary for generation of electricity. However, in terms of the provisions an contained in Clause 16.10 of the Tariff all revenue expenditures which the Board may have to incur not only by way of necessity but also by way of extravagance will have to be met by the consumers. 168. The Board while exercising its legislative function in framing the tariff is expected to determine the tariff rate keeping in view its over all revenue expenditures as also the possible future expenditure which may have to be incurred in that regard. In view of the report of the Comptroller and Auditor General as also the statements made by the Advocate General before us. It is clear that the Board has failed even to prepare Its annual statement within time. In the report of the comptroller and Auditor General several deficiencies In proper. maintenance of Books of Accounts by the Board have clearly been pointed out It now also stands admitted that the Accounts of the Board are placed before the legislature after a period of many years. x x x x 174. In the report of the comptroller and Auditor General several deficiencies In proper. maintenance of Books of Accounts by the Board have clearly been pointed out It now also stands admitted that the Accounts of the Board are placed before the legislature after a period of many years. x x x x 174. Further even in a case the legislature or Bihar subsequently disapproves the accounts or the statements of accounts prepared by the Board or the same receives adverse criticism of the Comptroller and Auditor General after a number of years, the same would be of no benefit whatsoever to the consumers ; as by that time the consumers would have paid the demand raised by the Board, 175, The very submission of Mr. Reddy to the effect that such a provision had to be made in order to avoid the contingency of revising the tariff too frequently Clearly demonstrates that the Board intends to bypass the statutory safeguards embodied in 1948 Act by passing the statutory functionaries who are entitled to scrutinise the accounts or the Board. Further Section 49 and 59 of 1948 Act do not impose any restriction on the power of the Board to revise Its tariff as and when necessary Thus, In our opinion, there cannot be any justifiable reason whatsoever to concede to such a drastic power at the hands of the Board in raising Its tariff by way of other operational surcharge as and when it thanks it necessary It is now well known that what cannot be done directly cannot be permitted to be done Indirectly. If such a power of the Board is recognised, It may not have the necessity of framing any tariff in relation to the class of consumers who would be effected thereby. 180. Thus in our opinion, the provisions of other operational surcharge does not satisfy the requirements or the provisions of 1948 Act and had been enacted by way of camouflage. 181. Re :-Question no. K: In 1993 as well as 1993 tariff also provisions have been made that low tension electricity supply may be confined to connected loads upto 80 BHP. However, keeping in view the Objections raised by the concerned consumers the same was not given effect to by an executive Instruction. It is not disputed that the said provision is applicable to the consumers who would be taking new connections. 184. However, keeping in view the Objections raised by the concerned consumers the same was not given effect to by an executive Instruction. It is not disputed that the said provision is applicable to the consumers who would be taking new connections. 184. It is not in dispute that the Board has power to change the terms and conditions of supply. It may be stated that some consumers who have connected installed load above 80 BHP may suffer. But in our opinion, inconvenience of the said consumers may by itself will not justify striking down the provisions. The rationality of the policy decision is such matter on the part of the Board, in opinion, cannot be questioned. 185. The contention or the learned counsel for the petitioners to the effect that the Board will be entitled to extra amount without converting the low tension connection to high tension connection does not appear to be correct. A Division Bench or this Court In Jaiswal Ceramic Industries vrs. Bihar State Electricity Board and ors. (1980 B.B.C.J 179) has clearly held that unless arrangements are made by the Board for supply of high tension electrical energy the consumer can not be charged on the basis of H.T Tariff The aforementioned view has also recently been relk erated by a Division Bench of this Court in M/S. Trident Tubes Ltd. vrs. Bihar State Electricity Board and another (C.W.J.C. No 10006 of 1992 disposed of on 21.9.1993). 186. We are not aware of any rule or interpretation of Statute that the provision may be held to be prospective only for a section of people and retrospective for other. In fact, the question of consideration of the aforementioned provisions prospectively or retrospectively does not and cannot arise, In as much as the laid provision always required to be applied in the cases of all the consumers. The Board only had kept the said provision in abeyance and/or In otherwise did not implement the said provision in the cases of those consumers who had connected load upto 100 BHP. 187. Question no. (I) : The grievances of the petitioners in this regard is not L.T.I.S. consumers have now been made subject to two district minimum guarantees : (a) the minimum charge which existed earlier of Rs. 50/- per B.H.P. for L.T.I.S. I and Rs. 187. Question no. (I) : The grievances of the petitioners in this regard is not L.T.I.S. consumers have now been made subject to two district minimum guarantees : (a) the minimum charge which existed earlier of Rs. 50/- per B.H.P. for L.T.I.S. I and Rs. 70/- B.H.P. for L.T.I.S. II consumers; and (b) a new minimum energy consumption change of 70 units per B.H.P. per month. The combined effect of these two minimum charges result in an extremely heavy burden on the L.T.I.S. consumer. x x x x 191. According to the respondents levy of fixed charges has been done in a manner which has a real co-relation to generation and supply of electricity. As indicated hereinabove the Board is entitled to make different Tariff for different consumers which per se cannot be held to be arbitrary or unreasonable. The consumers of the rural area form a class by themselves and thus the question of violating the provision of Article 14 of the Constitution of India does not arise. The respondents in their counter affidavits filed above have categorically stated the (sic) (sic) with a view to check mal-practise. The respondents have further brought on records the figures to show that even the minimum level of consumption is reached then also the level or fixed charge would be justified. Respondents have also stated that keeping In view the fixed charges, the overall rates have been kept at such a level that if a consumer uses load for 2 to 3 hours a day the rate would reach at the desired level. x x x x 193. So far as the annual minimum guarantee charges is concerned, however, by reason of 1993 Tariff apart from the fixed charge the Board had introduced one more minimum guarantee charge to the energy consumer, according, to which consumers have to pay fixed charge of Rs. 50/- per BHP for L.T.I. S.I consumer and Rs. 70/-per BHP For L.T.I. S-II consumer even If their consumption of electricity Is nil. 194. So far L.T.I.S II consumers are concerned, by levying the said minimum guarantee charges at flat rate, In our opinion, a heavy burden have been imposed upon the consumers. The levy of such minimum guarantee charges, In our opinion is also arbitrary Inasmuch as : 1. there is no provision for adjustment. 194. So far L.T.I.S II consumers are concerned, by levying the said minimum guarantee charges at flat rate, In our opinion, a heavy burden have been imposed upon the consumers. The levy of such minimum guarantee charges, In our opinion is also arbitrary Inasmuch as : 1. there is no provision for adjustment. ii there is no provision for remission of the same owing to non-availability or the electricity by reason of tariff, load sheding or power cuts. iii admittedly such proportionate reduction are granted in the case of High Tension consumer and, in our opinion, there cannot be any justification whatsoever for not extending such benefit to L.T. consumers. The L.T. consumers have thus, in our opinion been discriminated against. iv. Such provision. therefore, In our view is arbitrary and Irrational. We are, therefore, or the view that Imposition of annual minimum guarantee charges on L.T.I. consume over and above the fixed charges is illegal. x x x 196, So far as the tariff rate is concerned, In view of the decisions of the Supreme Court referred to hereinabove, in our opinion. that Court cannot go into the question In minute., details., Inasmuch as the same is a matter of policy decision. Except for showing that consumers cannot be made to suffer because of the inefficiency of the Board, In our. opinion, no other argument Can be entertained In this regard. 197 Re : Question No. (m) : A fixed charge has been levied on installation of airconditioners. The levy of fixed charge on Installation of airconditioner in our opinion is absolutely illegal and without Jurisdiction. The Board has levied fixed charge on the connected load installed at the premises of the consumer. Such installation, include airconditioners also. The Board has thus sought to impose fixed charge on Installation of airconditioners over the fixed charges on connected load. which, in our opinion, Impermissible In law. The submission or Mr. Reddy to the effect that as airconditioner is luxury thus who can pay more may be asked so, cannot be accepted in view of the fact that the Board has no power to levy tax on luxury. Further, there are other electrical gadgets like Air cooler, Room-heater, Geysers etc. which are also item of luxury but no fixed charges have been levied on installation there of. Further, there are other electrical gadgets like Air cooler, Room-heater, Geysers etc. which are also item of luxury but no fixed charges have been levied on installation there of. Further, in our opinion, the Board in exercise of its jurisdiction Under Section 49 and 59 of the 1948 Act cannot frame any tariff for levying fixed charge on Installation of such gadgets alone. We may also take notice of the facts that the airconditioners are also not required to be operated throughout the year. 198 Mr. Reddy, however, sought to justify the said levy on the ground that when an Airconditoner is switched on, It drawn more power but the same most be the case with all electrical equipments. We, therefore, do not find that there exists any nexus or rationale in levying additional fixed charges on the Airconditioner. The levy of fixed charge on Airconditioner, is, therefore, held to be illegal. 199. Re. Question No. (n) Whether clubbing of the different consumers In the same premise are permissible in law? So far clubbing of the different consumers in the same premises is concerned, the same is in our opinion ex facie illegal Each consumer enters into, a separate agreement with the Board. The Supreme Court in Bihar State Electricity Board and another Vrs. M/Sn. Dhanwat Rice and Oil Mills, reported in A.I.R 1989 S.C 1030 has clearly held that the matter of supply of electricity by the Board to the consumers is more a matter of contract although a terms and conditions there of are guided by the provisions of the Statute. In that view of the matter as the Board enters into different contracts with different consumers whether situated in the same premises or not does not and cannot arise. In fact the learned counsel for the Board even did not make any attempt to Justify the said provision. 200. It is. accordingly, held that the Board is not entitled to club different consumers in the same premises. 201. for the reasons aforementioned, these applications are allowed in part, but in the facts and circumstances of this case, there will be no order as to costs. In view of the interim order, passed by this Court. it will be open to the Board to raise fresh bills in terms of this Judgment and recover/adjust the amount accordingly. Order accordingly.