Saraswati Industrial Syndicate Ltd. vs U.P. State Electricity Board and Another

R.A. Sharma, J.—By this petition, Petitioner has challenged the Notification dated January 1st, 1992 issued by the Uttar Pradesh State Electricity Board (hereinafter referred to as the Board) fixing tariff u/s 49 of the Electricity Supply Act, 1948 for various types of consumers.

Initially, Petitioner by his writ petition challenged the order dated 18.1.1992 only but by an amendment Application dated 10.8.1992, he has prayed for adding relief so as to enable him to challenge the Notifications dated 18.5.1992 and 29.6.1992 by which the earlier notification dated 18.1.1992 was amended partially. We have allowed this application permitting the Petitioner to incorporate ground and the prayer made therein in the writ petition at the relevant places today. Petitioner has filed another application today seeking permission to file supplementary affidavit copy of which was served on the learned Counsel for the Respondents on 17.5.1993. We have allowed this application also and have placed the supplementary affidavit on the record.

At the outset, we may mention that the validity of the two impugned Notifications dated 18.1.1992 and 18.5.1992 has already been upheld by the Division Bench of this Court in Servo day Is pat Pvt. Ltd., Ghaziabad v. U.P. State Electricity Board, Luc know and others, 1993 (1) Civil and Revenue Cases 658. The above decision has been followed in other cases also by this Court while rejecting similar writ petitions.

Learned Counsel for the Petitioner has however made three contentions in support of this writ petition namely;

(1) In view of Section 22 of the Indian Electricity Act and the proviso (a) to Clause VI of the Schedule appended there to the Board cannot charge minimum consumption guarantee charges exceeding 15% of the cost of service line required to comply with the requisition.

(2) There is discrimination between one consumer and another who are governed by the same rate Schedule HVI of the aforesaid notification with regard to payment of minimum consumption guarantee.

(3) There is also discrimination between consumers belonging to two rates Schedule of HVI and HVII.

All three contentions are devoid of merits and have to be rejected.

In view of the Section 26 of the Electricity Supply Act, 1948, which is reproduced below, Section 22 of Electricity Act is not applicable to the Board.

Board to have powers and obligations joy licensee Under Act 9 of 1970. Subject to the provisions of this Act, the Board shall, in respect of the whole State, have all the powers and obligations of a licensee Under the Indian Electricity Act, 1910, and this Act shall be deemed to be the licence of the Board for the purposes, of that Act:

Provided that nothing in Sections 3 - 11, Sub-sections (2) and (3) of Section 21 and Section 22, Sub-section (2) of Section 22A and Sections 23 and 27 of that Act or in Clauses I to V, Clause VII and Clauses IX to XII of the Schedule to that Act relating to the duties and obligations of a licensee shall apply to the Board:

Provided that the provisions of Clause VI of the Schedule to that Act shall apply to the Board in respect of that area only where distribution mains have been laid by the Board and the supply of energy through any of them has commenced.

The Hon''ble Supreme Court in State of U.P. and Others Vs. Hindustan Aluminium Corpn. and Others, has held that Section 22 does not apply to the Board. The Division Bench of this Court in M/s. Hindustan Ferro Alloys Ltd. Vs. The Executive Engineer, U.P. State Electricity Board and others, relying upon Section 26 of the Electricity . Supply Act and the decision of the Supreme Court in the case of Hindustan Aluminum (supra) has also taken the same view holding that Section 22 Is not applicable to the Board.

As regards the applicability of Clause VI of the Schedule appended to the Electricity Act, it may be mentioned that this provision does not deal with the minimum consumption guarantee charges. It is concerned with the security only. A Division Bench of this Court in Deuidayal Aluminum Industries (P.) Ltd. v. U.P. State Electricity Board 1987 ALJ 1472, has held that the aforesaid clause deals with the security which is required to be given by the consumer. This clause requires security for taking supply of energy for not less than two years and for assuring to the licensee the annual revenue not exceeding 15% of the cost of service line required to comply with the requisition.

The minimum consumption guarantee charges can be fixed u/s 49 of the Electricity Supply Act and Clause VI of the Schedule to Electricity Act has no concern with it. A Division Bench of this Court in Hari Shankar and Others Vs. U.P. State Electricity Board and Another, has laid down that the Board has power to fix minimum consumption guarantee charges u/s 49 of the Electricity Supply Act because the word "tariff in the said section includes "minimum consumption guarantee charges also. Another Division Bench in Bhagwan Industries (P) Ltd., Lucknow Vs. Uttar Pradesh State Electricity Board, Lucknow, has taken the same view. These decisions of this Court have been approved by the Hon''ble Supreme Court in Bihar State Electricity Board, Patna and Others Vs. Green Rubber Industries and Others, . Following the above decisions, this Court has again reiterated the same position in Hindustan Ferro Alloys Ltd. v. Constitution of India - Article 226

The plea of discrimination between the consumers falling Under the same category of HVI is also devoid of merit. HVI applies to all consumers who have a contracted loan of more than 100 BHP or 75 KW for Arc induction furnace, rolling/re - rolling mills and mini steel plants. The above three types of industries have been grouped together because they have necessity of regular supply and have common problems. The rates of minimum consumption guarantee charges are fixed on the basis of hour/period during which the energy was consumed and the contracted demand. There is thus hardly any discrimination. That apart it is open to the Electricity Board to provide different rates for minimum consumption guarantee charges for different types of consumers even if they fall in the same rate schedule depending on nature of the industry, extent of consumption of energy and the necessity of the regular supply of the energy.

The. contention regarding discrimination between consumers falling in two different rates schedule has also to be rejected for the same reasons given above. Both the rate schedule apply to consumers having different types of industries. Prescribing different rates of minimum consumption charges for such industries cannot be said to be bad because these industries belong to different categories. They have different problems. Extent of requirement of energy, necessity of regular supply etc. are not the same in all such cases.

For the reasons given above, this writ petition lacks merit and is accordingly dismissed. No order as to costs.