Judgment :- The petitioners have challenged levy of “Peak Hour Charges” at 20% extra per unit for consumption of electricity consumed by the high tension consumers during 6.00 am to 9.00 am and 6.00 pm to 9.00 pm as per G.O.Ms.No.17 Energy dated 14.2.1997. 2. Before considering the various issues, it would be appropriate to deal with the relevant statutory provisions. Section 49 of the Electricity (Supply) Act, 1948 (hereinafter referred to as “the Supply Act”) makes provision for the sale of electricity by the Electricity Board to persons other than the licensees. The aforesaid section is to the following effect :- 49. Provision for the sale of electricity by the Board to persons other than licensees. - (1) Subject to the provisions of this Act and of regulations, if any made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs. (2) In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely :- (a) the nature of the supply and the purposes for which it is required; (b) the co-ordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee; (c) the simplification and standardisation of methods and rates of charges for such supplies; (d) the extension and cheapening of supplies of electricity to sparsely developed areas. (3) Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors. (4) In fixing the tariff and terms and conditions for the supply of electricity, the Board shall not show undue preference to any person. 3. In the State of Tamil Nadu, the authority relating to fixation of tariff was contained in Tamil Nadu Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949 (Tamil Nadu Act XXIX of 1949). (4) In fixing the tariff and terms and conditions for the supply of electricity, the Board shall not show undue preference to any person. 3. In the State of Tamil Nadu, the authority relating to fixation of tariff was contained in Tamil Nadu Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949 (Tamil Nadu Act XXIX of 1949). Subsequently, in the year 1978, the Tamil Nadu Revision of Tariff on Supply of Electrical Energy Act, 1978 was passed, which came into effect from 1st March, 1978. The aforesaid Act had received the assent of the President on 25.2.1979. 4. Sections 3 & 4 of the The Tamil Nadu Revision of Tariff on Supply of Electrical Energy Act,1978 are to the following effect :- “ 3. Tariff rates for consumption of electrical energy.- Notwithstanding anything contained in the Tamil Nadu Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949 (Tamil Nadu Act XXIX of 1949), the tariff rates payable to Tamil Nadu Electricity Board by any consumer on the electrical energy supplied by the Board shall be as specified in the Schedule to this Act. 4. Power of the State Government to amend the Schedule.- The State Government may after taking into account the cost of production of energy, and such other matters as may be prescribed, by notification, amend the provisions of the Schedule to this Act.” 5. Part A of the Schedule, as envisaged under Section 3, contains Tariff relating to High Tension Supply. 6. It is evident from Section 4 that the State Government was empowered to amend the Schedule by issuing notification. In the purported exercise of such power, G.O.Ms.No.17 dated 14.2.1997 was issued relating to amendment of High Tension Tariff-I. The following clause was inserted: - High Tension Tariff I : . . . (d) For the High Tension Industrial Consumers, Time of the Day meter shall be provided. On installation of Time of the Day meters, the High Tension Industrial Consumers shall be billed at 20 per cent extra on the energy charges for the energy recorded during peak load hours. The duration of peak load hours shall be as under : (1) 6.00 a.m. to 9.00 a.m. (2) 6.00 p.m. to 9.00 p.m. This amendment effected in the Schedule is being challenged. 7. The duration of peak load hours shall be as under : (1) 6.00 a.m. to 9.00 a.m. (2) 6.00 p.m. to 9.00 p.m. This amendment effected in the Schedule is being challenged. 7. A common counter affidavit has been filed on behalf of the contesting respondents and the action of the respondents was sought to be justified. 8. Apart from refuting the legal contentions regarding the necessity to obtain Presidential assent and applicability of Article 265 of the Constitution, it has been indicated that the demand of the grid varies during the day depending on the electricity consumed by various categories of consumers. It has been indicated that during the period 6.00 a.m to 9.00 a.m due to usage of electricity by domestic consumers and agricultural consumers and during 6.00 p.m to 9.00 p.m due to usage by domestic consumers and commercial establishments, the demand is more and it is not possible to curtail the use of electricity during this period. To regulate the usage of electricity and with a view to upset the cost of generating/obtaining more electricity during such period, instead of restricting the usage of electricity by the high tension electricity consumers, they have been levied with peak hour charges. This is meant to be a disincentive for usage of electricity during peak hours by the high tension consumers. For the high tension consumers, who consume major portion of the electricity, a separate tariff has been envisaged to meet the peak load demand which involves incurring of heavy expenditure, for which 20% of extra levy has been imposed. The true objective of reducing demand during such period and garnering higher amount to upset the higher expenditure is being achieved through such process. 9. Regarding the electricity generated through wind mills, it has been indicated that such generation normally takes place during non-peak hours, and therefore, such of the wind mill generators, who are also consumers of high tension electricity, are required to pay the additional amount for consumption of electricity during the peak hour period. 10. All the learned counsels appearing for the petitioners almost in one voice have raised contention regarding invalidity of the amendment under G.O.Ms.No.17 dated 14.2.1997 on the ground of absence of assent of the President of India. They have relied upon the provisions contained in Article 254(2) of the Constitution of India. 10. All the learned counsels appearing for the petitioners almost in one voice have raised contention regarding invalidity of the amendment under G.O.Ms.No.17 dated 14.2.1997 on the ground of absence of assent of the President of India. They have relied upon the provisions contained in Article 254(2) of the Constitution of India. It is their contention that since for Act 1/1979 Presidential assent has been obtained, as such Act was repugnant to the provisions contained in the Electricity (Supply) Act, for the present amendment also similar assent is required. 11. There is no doubt that the Supply Act which has been passed by the Central Legislature is on a subject contained in the concurrent list and if there is any subsequent State Legislation on the subject, in case of any repugnancy, the State law can prevail only if the assent of the President is obtained. This is clear from a plain reading of Article 254 of the Constitution of India. 12. Under the Electricity (Supply) Act, the authority to fix the tariff for consumption of electricity had been vested with the Electricity Board whereas under the Act 1 of 1979, the authority to fix the tariff has been vested with the State Government and obviously to that extent, there was repugnancy between the State Act and the Central Act. Precisely for the aforesaid reason, the Presidential assent had been obtained. Act 1 of 1979 itself contemplates that the State Government can change the tariff by effecting change in the Schedule. Delegation of such power to the State Government under Section 4 is obviously a case of conditional legislation. Since the change is sought to be effected in the manner provided in the Act itself, which had already received the assent of the President, obviously there is no need of obtaining any further assent. If the exercise of jurisdiction by the State Government is within the purview of Act 1/1979, such exercise cannot be challenged on the ground that further assent of the President was necessary. 13. As held by the Division Bench of this Court in 2002(1)MLJ 285 (SHANMUGARAJA SPINNING MILLS (O) LIMITED, REP. BY P.S.K. SHANMUGARAJAN, ITS MANAGING PARTNER v. THE SUPERINTENDING ENGINEER (i/e), PERIYAR ELECTRICITY SYSTEM, ERODE AND OTHERS), issuance of G.O., amending the schedule is in the nature of conditional legislation. 13. As held by the Division Bench of this Court in 2002(1)MLJ 285 (SHANMUGARAJA SPINNING MILLS (O) LIMITED, REP. BY P.S.K. SHANMUGARAJAN, ITS MANAGING PARTNER v. THE SUPERINTENDING ENGINEER (i/e), PERIYAR ELECTRICITY SYSTEM, ERODE AND OTHERS), issuance of G.O., amending the schedule is in the nature of conditional legislation. Though this is an exercise of legislative power by the State Government pursuant to the provisions contained in a Statute, this is not an act of Legislature attracting the applicability of Article 254(2). 14. As observed by the Supreme Court in AIR 1976 SC 1031 (THE KERALA STATE EKLECTRICITY BOARD v. THE INDIAN ALUMINIUM CO.LTD. AND OTHERS), Article 254(2) would be attracted only to an Act passed by the State Legislature but would not apply to any subordinate legislation or notification issued under such State Act. 15. In the aforesaid decision of the Supreme Court, it was observed as follows :- “ 12. . . . But the only question we are concerned with in this case is the validity of the surcharge order. No notified order has been made under any of the powers conferred on the State by Section 3 except the impugned Surcharge Order. If the Act had stood as it is or even if the notification had stood as it is nobody would have any cause for complaint. It is only by the issue of the Surcharge Order that the respondents have been affected. It is for the purpose of deciding the question of the validity of the Surcharge Order that we have to decide the validity of the declaration under Section 2(a) of electricity as an essential article. Does the notification make the legislation one relating to electricity under Entry 38 of List III? Was it necessary to get the President’s assent for this notification as contended by some of the respondents? Quite clearly no Presidential assent was possible to the notification. Article 254(2) does not contemplate Presidential assent to notifications issued under the Act. The Article contemplates Presidential assent only to laws made by the Legislature of a State. We shall later deal with the question whether the assent of the President to the Act after the 1965 notification declaring electricity as an essential article validates that notification.” The aforesaid observation is squarely applicable to the present case. 16. Mrs. The Article contemplates Presidential assent only to laws made by the Legislature of a State. We shall later deal with the question whether the assent of the President to the Act after the 1965 notification declaring electricity as an essential article validates that notification.” The aforesaid observation is squarely applicable to the present case. 16. Mrs. Nalini Chidambaram, appearing for some of the petitioners, had contended, albeit without much conviction, that under Section 4 of the Act 1/1979, the State Government having not prescribed the guidelines, the power exercised by the State Government is arbitrary. Section 4 of the Act 1 of 1979 empowers the State Government to amend the Schedule which contains the tariff payable by various consumers. The section itself provides that the prime consideration for the Government is the cost of production of energy. It is of course true that other matters may be prescribed, but in the absence of any rule prescribing other matters, the plenary jurisdiction to exercise such power is not whittled down. It would be open to the State Government to prescribe other matters to be considered but it cannot be contended that in the absence of any other rule about other matters to be considered, the State Government would be powerless to exercise the statutory power already conferred under Section 4. Act 1 of 1979 is only to provide revision of tariff rate leviable on electric energy supplied in the State by the Tamil Nadu Electricity Board. The power which was vested with the Board to fix the tariff under the Supply Act has been vested with the State Government. Tariff has been fixed in the Act itself. However, authority has been delegated to the State Government to amend the Schedule. The validity of Section 4 has not been challenged on any ground especially on the ground of excessive delegation. Even otherwise, under Section 4, there is reference to cost factor. It is obvious that the State Government while considering the question of amending the Schedule relating to tariff may also be guided by the principles envisaged under Section 49 of the Supply Act. 17. As a matter of fact other counsels appearing for the petitioners have sought to assail the notification of the Government on the ground that the principle contained in Section 49(1) has not been kept in view. 17. As a matter of fact other counsels appearing for the petitioners have sought to assail the notification of the Government on the ground that the principle contained in Section 49(1) has not been kept in view. It is of course true that after the enactment of Regulatory Commission Act;, the position may be different, however, I am not concerned with the impact of such Act while deciding the issues raised in the present cases. 18. Sri. Thiagarajan, learned senior counsel appearing for some of the petitioners has contended that under Section 4, the State Government is to take into account the cost of production. It has been submitted by him that the cost of production being the same through out the day, there cannot be any justification for levying additional duty for the use of electricity during the so called peak hours. He has submitted that even the consumption by High Tension industries remain the same and merely because in the so called peak hours the consumption of energy by other consumers is increased, the High Tension industries cannot be made to suffer and the imposition of additional levy is in the nature of penalty for the “misdemeanor” of other consumers in consuming more in the so called peak hours. Even though such a contention may appear to be prima facie attractive, on deeper scrutiny, the contention appears to be hollow. 19. The stand of the Government in this aspect is to the effect that during such peak hours, the Government and the Electricity Board try to generate/acquire more electricity power to cater to the needs of all concerned including the high tension consumers and to meet the part of the additional cost, additional levy has been made. Since it would not be possible for others to consume less during the aforesaid period, whereas it would be possible for the industries to regulate their time, the Government had thought it fit to increase the rate for consumption of electricity by high tension industries during the said period. Instead of resorting to any power cut, the Government and the Board tried to maintain the supply to all including the high tension consumers by generating more electricity. The other alternative would be to effect power-cut which is likely to affect the high tension industries more. 20. Instead of resorting to any power cut, the Government and the Board tried to maintain the supply to all including the high tension consumers by generating more electricity. The other alternative would be to effect power-cut which is likely to affect the high tension industries more. 20. Learned counsels appearing for the petitioners had contended that high tension industries should not have been singled out for the differential treatment and such a policy is opposed to Section 49(1) of the Supply Act. According to them, intention under Section 49(1) is to maintain uniform tariff and by singling out the high tension consumers to pay 20% more for consumption during the particular period of the day is opposed to the principles contained in Section 49(1). In making such submission, the provisions contained in other sub-sections, particularly Section 49(3), have been over-looked. Section 49(3) itself contemplates that different tariffs can be prescribed having regard to the geographical position of the area, the nature of the supply and purpose for which supply is required and any other relevant factors. In the case of supply to high tension industries, the nature of supply is different from that of others and similarly the purpose for which supply is required is also different. Moreover, the fact that the State and the Board have to maintain supply even during the peak hours by incurring additional expenditure is obviously a relevant factor coming within the scope of Section 49(3). It is of course observed by the Supreme Court that the provisions contained in Section 49(3) are to be read along with the provisions contained in Section 49(4). However, by calling upon the high tension industries to pay 20% extra instead of effecting power-cut during a particular time, even though other consumers are not subjected to such payment, it cannot be said that the Board or the State is showing undue preference to the other persons. Since the nature of supply and the purpose for which supply is required and other relevant factors have been considered, it is obviously a case where there is a reasonable classification and there is no factual assertion. 21. One of the contentions raised by the petitioners is to the effect that the so called “peak hours” is a vague concept which has not been defined anywhere. 21. One of the contentions raised by the petitioners is to the effect that the so called “peak hours” is a vague concept which has not been defined anywhere. The respondents have justified by clearly indicating that during the hours fixed as per G.O., consumption by all the classes of consumers is more on account of various factors. There is nothing to discard such factual position. 22. It is also contended by the learned counsels for the petitioners that under Section 4, the power has been vested with the Government to “change the tariff”, but under the impugned G.O., introduced in 1997, the Government has sought to “change the policy” by introducing a concept of payment of additional amount for consumption during peak hours. This according to them is beyond the purview of the amending power conferred under the State Government by Section 4. The concept of levying at different rates for consumption of energy during different period of the day does not appear to be anything new. As a matter of fact, under Act 1 of 1979, while fixing the tariff, it has been indicated that less amount would be payable for consumption during a particular period. The intention seems to be to fix a different tariff for particular consumers for consumption of electricity during a particular period. This is something similar to fixation of higher rate for telephone calls during particular hours of the day and fixation of lower rate during other period. Fixation of payment of particular rate higher than the normal rate appear to be within the realms of fixation of tariff and obviously, therefore, comes within the concept of tariff. 23. Learned counsels for the petitioners have also challenged the imposition of peak hour charges on the ground that such imposition is unreasonable, arbitrary and in violation of Article 14 of the Constitution. As already indicated, high tension consumers form a class for themselves and this is recognised from the very inception of the Act 1 of 1979. The reasonableness of such imposition was also challenged in appeal against the decision of the Regulatory Commission. The decision of the Regulatory Commission to continue the imposition of peak hour charges is found to be justified by the Division Bench in judgment dated 30.9.2003 in C.M.A.Nos.921 of 2003 and other connected matters. The reasonableness of such imposition was also challenged in appeal against the decision of the Regulatory Commission. The decision of the Regulatory Commission to continue the imposition of peak hour charges is found to be justified by the Division Bench in judgment dated 30.9.2003 in C.M.A.Nos.921 of 2003 and other connected matters. Even though the scope of an appeal under the Regulatory Commission Act is different, the finding that imposition of such peak hour charges has been justified is obviously relevant for deciding the present case. It is obvious that the Division Bench has found nothing wrong in such imposition. In other words, imposition of peak hour charges is found to be reasonable by the Division Bench. The same logic would be applicable to the present case. 24. It is also contended that without giving opportunity of hearing to the persons likely to be affected, issuance of G.O., by amending the schedule is unjust and opposed to the principles of natural justice. Such a contention is merely stated to be rejected. Change of tariff as contemplated in the Act 1 of 1979 is essentially a legislative function which is delegated to the State Government. It cannot be said that while exercising such authority the State Government is required to follow the principles of natural justice. As a matter of fact, similar contention raised against G.O.No.95 has been negatived in 2002(1) MLJ 285 (cited supra). 25. The above discussion brings me to the last (but not the least) contention raised by some of the petitioners. These petitioners are high tension industrial consumers who generate power through their own wind mills and supply electricity generated by them to the Board. As per the existing agreement, the electricity generated by wind mill owners are supplied to the Electricity Board grid and such industries are allowed to use same extent of electricity by paying wheeling charges and in case of surplus, such wind mill owners are allowed to bank the surplus with the Board of course, on payment of some banking charges. It is the contention of such petitioners that since they are generating the electricity, apart from taking the wheeling charges and banking charges, the Government or the Board had no jurisdiction to collect peak hour charges from such persons. It is the contention of such petitioners that since they are generating the electricity, apart from taking the wheeling charges and banking charges, the Government or the Board had no jurisdiction to collect peak hour charges from such persons. In reply, it is submitted by the Additional Advocate General that the wind mills do not generate electricity throughout the day and such generation takes place only during a particular time of the day or a particular month of the year and such power generated by them is neither continuous nor stable and the high tension industries cannot depend on the power generated by their own wind mills. This justification on the part of the learned Additional Advocate General appears to be hollow. It is obvious that for the extent of electricity generated by such wind mill owners account is maintained by such wind mill owners. If it is found that such wind mill owners generate electricity during non-peak hours only, obviously the State Government and the Board would be justified in collecting higher charges for the use of such industry during peak hours. However, if such wind mill owners are also producing energy during peak hours, there cannot be any justification to deny them of the use of such energy during that period. 26. Learned Additional Advocate General has, however,raised a valid objection to the effect that since the G.O., had been issued in 1997 and it had not been challenged earlier, there is no method to find out now how much electricity had been generated by such wind mill owners in the past during peak hours. In this context, he has pointed out that when the wind mill owners had kept quiet for more than 5 years and paid the amount without demur, their grievance cannot be looked into in view of the principles of waiver and acquiescence. This contention of the learned Additional Advocate General cannot be lightly brushed aside. Therefore, while it is not possible to grant any relief of refund to such wind mill owners for the electricity already generated and consumed, it is made clear that in case such wind mill owners instal any device through which the amount of electricity generated during peak hours can be measured and accounted for, such persons should not be called upon to pay the additional duty for use of such electricity during peak hours. 27. 27. Subject to the aforesaid clarification relating to the wind mill owners, which would become effective only as and when such devices are installed by the wind mill owners themselves, there is no scope to interfere with the order passed by the Government and to issue any direction regarding refund. The writ petitions of the wind mill owners are accordingly disposed of subject to the aforesaid clarification. The writ petitions of other petitioners are rejected. No costs.