Research › Search › Judgment

Uttarakhand High Court · body

2003 DIGILAW 201 (UTT)

Faggan Singh v. U. P. State Electricity Board

2003-09-27

IRSHAD HUSSAIN, M.M.GHILDIYAL

body2003
JUDGMENT Instant writ petition under Article 226 of the Constitution of India was filed with the prayers to issue writs to quash the order dated 28-7-1998 justifying the billing of electricity consumption of the petitioners per rate schedule LMV-6; to quash the impugned electricity bills of July 1998; to treat the petitioners consumers of rate schedule LMV-S and to restrain disconnection of electricity supply of the petitioners. 2. The petitioners alleged that they are having electricity connections for tube-wells and thus are consumers under rate schedule LMV-5. A consumer under rate schedule LMV -5 has an option to take supply under metered category or un-metered category which have different rate schedule. The petitioners have been paying their electricity charges under un-metered category as they have at no point of time opted for metered category and they were therefore charged at the rate of Rs. 40/- per BHP per month till 1996. In the year 1997 the respondents without the option being invited from the petitioners forcibly installed meters at their tube-well connections and started billing under this category treating them to be the consumers of LMV-6 category. 3. The petitioners made representation, dated 27-9-97, to the respondents, but the respondent Board not take any action where upon petitioners filed writ petition No. 16172 of 1998 in the High Court. This writ petition was disposed of on 6.5.1998 with the direction to the respondents to decide the petitioners' representation dated 27.9.1997 and any other representation that may be preferred within two months and the respondents were restrained from disconnecting the electricity connections till disposal of the representation. 4. In pursuance of the above order petitioners preferred representations on 27.9.1997 and 18.5.1998. The Executive Engineer, Electricity Distribution Division, U.P.S.E.B. Roorkee rejected the representations vide order dated 28.7.1998 on the ground that since the petitioners being supplied electricity from urban supply instead of rural supply due to unavoidable reasons the demand of electricity dues per LMV-6 tariff is justified. The petitioners were also served with fresh bills for the month of May-June 1998 demanding 9uarantee as well as outstanding dues. The order passed on 28.7.1998 is thus wholly arbitrary, illegal, without jurisdiction and ultravires the tariff framed by the Board under section 49 of the Electricity (Supply) Act, 1948 (hereinafter referred as 'the Act'). The petitioners were also served with fresh bills for the month of May-June 1998 demanding 9uarantee as well as outstanding dues. The order passed on 28.7.1998 is thus wholly arbitrary, illegal, without jurisdiction and ultravires the tariff framed by the Board under section 49 of the Electricity (Supply) Act, 1948 (hereinafter referred as 'the Act'). The power to classify consumers into different categories and to fix tariffs has been conferred on the Board by section 49(3) itself. The framing of tariff under section 49 of 'the Act' being statutory exercise the Board has absolutely no authority to act de hors or in derogation thereof and consequently the action of the respondents in billing the petitioners treating them consumers of LMV-6 is illegal, arbitrary and without jurisdiction. 5. The respondents defended their action by making averments that since 15.7.1994 private tube-wells which are connected for electricity supply with rural schedule feeder are covered by LMV-5 and tube-wells consumers connected with urban schedule feeder fall in the category of LMV-6 tariff. The petitioners are getting electric supply through the feeder which is urban supply schedule feeder and hence they are consumers covered by LMV-6 tariff. The categorization of tube-well consumers have come into effect on 16.7.1994 and the allegations of the petitioners that till 1996 there was no change in the policy is wholly misconceived and incorrect. The representations of the petitioners have been disposed of as per the relevant tariff applicable thereto and the order is correct and justified. 6. It was further averred that the two bills, Annexures-9 and 11 to the writ petition, are provisional as there was no meter reading available at that time and these are being revised per meter reading or minimum charges, as the case may be, according to the relevant rate schedule i.e. LMV-6. The fixation of tariff is policy decision and legislative exercise of the powers by the Board under section 49 of ' the Act' and therefore the petitioners are liable to pay the electricity dues in accordance with the tariff as fixed from time to time under the said provision. 7. Heard Sri Alok Singh learned counsel for the petitioners and Sri Ranjeet Saxena learned counsel for the respondents. 8. 7. Heard Sri Alok Singh learned counsel for the petitioners and Sri Ranjeet Saxena learned counsel for the respondents. 8. The learned counsel for the petitioners submitted that since the petitioners being small agriculturists and are having electricity connections for their tube-wells for irrigation purposes they are the consumers of Electricity Board under rate schedule LMV-5 and further that the petitioners kept paying their electricity charges under un-metered category under the said rate schedule. According to the learned counsel the respondents have without obtaining option of the petitioners installed meters at the tube-well connections of the petitioners and started treating them consumers of rate schedule, LMV-6 and that the impugned action is illegal, arbitrary and without jurisdiction. At the out set it need to be mentioned that the agreement between the petitioners and the Electricity Board in regard to the supply of electric energy is not on record. The representations of the petitioners referred to above were rejected by the respondent-authorities per orders dated 28.7.1998 which were dispatched on 31. 7 .1998 to petitioners (Annexure-8 and Annexure-10 to the writ petition). The relevant term and condition of the agreement has, however, been reproduced in these impugned orders and correctness of the same has not been disputed by the petitioners. The term so reproduced clearly reveal that the Board had been given unilateral right to vary terms and conditions of supply of electric energy and also method of determining power factors under the provisions of Electricity (Supply) Act, 1948, Rules and Regulations framed thereunder, Indian Electricity Act, 1940 and Indian Electricity Rules, 1956 as amended from time to time. Considering this right available to the Electricity Board it, as submitted by the learned counsel for the respondents, took policy decision to place the farmers getting electricity supply from urban feeder under the rate schedule LMV-6. The reason as given was that the farmers getting supply from urban feeder are in highly beneficial category comparing to their counterparts who are getting supply from rural feeder, thus charging the same rate from the two categories of the farmers itself was neither valid nor fair but in fact it amounts to treating unequal as equal. This was so in view of the fact that the farmers who are getting electric supply as per rural schedule are getting electricity for quite small time comparing to the availability of electricity with the urban feeder line. This was so in view of the fact that the farmers who are getting electric supply as per rural schedule are getting electricity for quite small time comparing to the availability of electricity with the urban feeder line. Realizing this aspect the respondents took policy decision to keep two sets of farmers in different categories and accordingly tariff notification dated 15.7.1994 was issued, which in the peculiar aspect of the matter was neither arbitrary nor without jurisdiction nor violative of Article 14 of the Constitution of India. 9. The petitioners have not disputed that they are getting electricity supply through the feeder which is urban supply schedule and therefore as submitted by the learned counsel for the respondents the petitioners are consumers covered by tariff, LMV-6. Notification dated 15.7.1994 (Annexure No. 1 of second supplementary counter affidavit) was issued in exercise of powers under section 49 of Electricity (Supply) Act, 1948. Section 49 is a provision for the sale of electricity by the Board to persons other than licensee and it is not in dispute that the Board for the purposes of discharging its statutory duties and obligation has power to frame tariff from time to time for supply of electric energy to the consumers by sale to earn its revenue Taking the policy decision and in exercise of the power under the said provision, notification dated 15.7.1994, was issued and it came into force with effect from 16.71.1994 and every consumer was therefore obliged to avail of the electricity energy at revised tariff. Considering the said notification the submission of the petitioners' that the tariff was revised in the month of October 1996 is not correct, rather fresh notification dated 28th October 1996 (Annexure No.2 of the second supplementary affidavit) was issued in partial modification of the earlier notification including the afore-mentioned notification dated 15.7.1994 and by virtue of this change was effected even in rate schedule LMV-5 under the heading 'un-metered supply' and if the respondents in pursuance thereof installed meters on the tube-wells of the petitioners the action was neither illegal nor without jurisdiction. In exercise of the said powers, the Board further effected modification per notification dated 23.6.1999 (Annexure NO.3 of second supp. Affidavit). In exercise of the said powers, the Board further effected modification per notification dated 23.6.1999 (Annexure NO.3 of second supp. Affidavit). Rate schedule I'.MV-5 as applicable, from 9.8.2000, to all power consumers getting supply as per rural/urban schedule for private tube wells for irrigation purposes having a load up to 25 HBP, like the petitioners is incorporated in supplementary counted affidavit dated 1.10.2002. The petitioners, in view of reasons aforesaid, are liable to pay charges for their supply of electricity. 10. So far as inviting of option is concerned it is of significance that despite the dispute raised, representations made by the petitioners and the present writ even being preferred they have not volunteered themselves to opt out for a particular category of rate and tariff applicable to farmers and therefore it can not be accepted that the respondents have acted arbitrarily in enforcement of the revised rates and tariffs of electricity supply to them. 11. Learned counsel for the petitioners also submitted that on the principle " of promissory estoppel as well as by virtue of doctrine of reasonable expectation change in rates and tariffs of electricity by the Board is also illegal. As stated above the term and condition of the agreement did/permit and give right to the Board to vary terms and conditions of supply of electric energy by virtue of statutory provision of Electricity (Supply) Act, 1948. It is well settled that the above principle and doctrine have no role to play against the provisions of an Act which give power to the Board to fix tariff which essentially is a matter of policy and normally a court would refrain from interfering with a policy decision unless the power exercised is arbitrary or ex-facie bad in law. In regard to the latter aspect of the matter there is authority in the decision of the Apex Court in the matter of Association of Industrial Electricity Users vs. State of A. P. and others; (2002) 3 Supreme Court Cases 711. The Apex Court laid down that :- "We also agree with the High Court that the Judicial review in a matter with regard to fixation of tariff has not to be as that of an Appellate Authority in exercise of its jurisdiction under Article 226 of the Constitution. The Apex Court laid down that :- "We also agree with the High Court that the Judicial review in a matter with regard to fixation of tariff has not to be as that of an Appellate Authority in exercise of its jurisdiction under Article 226 of the Constitution. All that the High Court has to be satisfied with is that the, Commission has followed the proper procedure and unless it can be demonstrated that its decision is on the face of it arbitrary or illegal or contrary to the Act, the court will not interfere. Fixing a tariff and providing for cross-subsidy is essentially a matter of policy and normally a court would refrain from interfering with a policy decision unless the power exercised is arbitrary or ex facie bad in law." In view of reasons referred earlier the exercise was neither arbitrary nor against the statutory provisions and therefore the submission of the learned counsel has no merit and the policy of Board and action can not be said to be against law and without jurisdiction. 12. It was further contended that the notification dated 28th October 1996 (Annexure No.2 of second supp. Counter affidavit) making modifications in rates and tariffs and thereby making the amendments in the earlier notifications retrospectively partly with effect from August 1, 1996 and partly with effect from 15th July 1994 was bad in law. The emphasis was that the Board has no power to amend the rates and tariffs and make these effective retrospectively and therefore the respondents are liable to be restrained from acting upon the said notification. We do not find any force in this submission also. The reason is that the power vested under section 49 of the Act for fixing rates and tariffs is like making subordinate legislation and it is settled that power to make a Law includes the power to give it retrospective effect provided no fundamental right is infringed by reason of taking away a vested right by the retrospective legislation either subordinate legislation. Fixing of rates and tariffs and to make necessary modifications in order to meet the expenses and to run the business under existing contingencies is within the competence of the Board by virtue of the statutory power as stated above and the changes made in this case have not the effect of taking away any vested right of the petitioners. Fixing of rates and tariffs and to make necessary modifications in order to meet the expenses and to run the business under existing contingencies is within the competence of the Board by virtue of the statutory power as stated above and the changes made in this case have not the effect of taking away any vested right of the petitioners. The Board also has competence to amend earlier notifications retrospectively. 13. The petitioners raised dispute about the correctness of the two electricity bills, Annexure 9 and 11 to the writ petition. The respondents averred that these bills were merely provisional on account of meter reading not available at that time and therefore they volunteered to revise these bills as per meter reading or minimum charges, as the case may be, according to the relevant rate schedule LMV-6 and these bills are liable to be revised at the earliest. Since it is not pointed out that the required exercise has been done therefore a direction to that effect can very well be given by way of relief to the petitioners. 14. In view of above the petitioners are entitled to the relief only to the extent that electricity bills, Annexure Nos. 9 and 11 to the writ petition are liable to be revised. The petition fails in regard to other prayers and the petition is to be disposed of accordingly. 15. The petition is partly allowed and the respondents are directed to revise the electricity bills, Annexure Nos. 9 and 11 to the writ petition either as per meter-reading or minimum charges, if the exercise meanwhile not done, within a period of one month. No order as to costs.