PULAK ENTERPRISES Vs. BIHAR STATE ELECTRICITY BOARD

JUDGEMENT

(1.) In this batch of writ petitions the dispute relates to fuel surcharge. The validity of levy has been upheld by this Court as well as by the Supreme Court in Civil Appeal No. 6320 of 1994 and analogous cases, Bihar 440 Volts Vidyut Upbhokta Sangh vs. Chairman, Bihar State Electricity Board reported in (1997) 11 SCC 380 and that is not in issue in these cases. The dispute is only as to the method of calculation and, thus, the rate of fuel surcharge. The facts of the case may be noticed from the file of CWJC No. 5542 of 1999 which has been argued as the representative case.

(2.) SECTION 49 of the Electricity (Supply) Act, 1948 empowers the Electricity Board to frame tariff and lay down the terms and conditions of supply of electricity as it thinks fit. In exercise of the said power the Bihar State Electricity Board (hereinafter called 'the Board ') framed tariff vide notification dated 21.6.93, published in the Bihar Gazette on 23.6.93 superseding the earlier tariff notifications dated 26.8.91 and 3.7.92. The tariff notification dated 21.6.93 is effective from 1.7.93. Under clause 16.10.1 of the said tariff the consumers of the categories specified therein are required to pay operational surcharge at a rate to be determined every year in accordance with the formula prescribed, in addition to other charges as laid down in the tariff schedule. In terms of clause 16.10.2 the operational surcharge consists of two elements (i) fuel surcharge and (ii) other operational surcharge. Clause 16.10.3 lays down the formula for determining fuel surcharge applicable during the financial year in terms of paise per unit. Clause 16.10.4 prescribes the formula for determination of 'other operational surcharge '. It may be mentioned here itself that the provision regarding 'other operational surcharge ' has been held to be arbitrary and struck down. Clause 16.10.5 provides that the operational surcharge for a financial year shall be calculated by the Board after the expiry of the financial year. Till actual calculation of the operational surcharge for a financial year is made, operational surcharge during the financial year may be levied at a rate provisionally calculated on monthly or quarterly or half -yearly basis as the Boar i may decide. In case of short or excess realisation the amount is to be adjusted in the next bill to be served on the consumers. Clause 17 lays down that the existing rate of fuel surcharge notified in letter no. A/CS/Cost -ing -44/92 - 93/397 dated 29.3.93 amounting to 32 paise per unit has been merged in the tariff. Any increase in the operational surcharge thereafter only shall be levied.

(3.) ON 4.4.94 the Board issued circular stating that on final calculation the fuel surcharge for the period 1992 -93 had been determined as 26.14 paise per Kwh. On 5.1.95 the Board issued another circular calculating the fuel surcharge for the period July 1993 (i.e. after coming into force of the new tariff) to March 1994 to be 25.98 paise per Kwh. I am not referring to the rate of other operational surcharge under clause 16.10.4 which was also notified by the same circular because that has already been struck down. The consumers were billed accordingly. Writ petitions were filed challenging the rates in CWJC No. 2771 of 1995 (R) and analogous cases. During the pendency of the said writ petition the Board proposed certain amendments in clauses 16.10.3, 16.10.3.1 and 17, vide letter no. 135 dated 28.12.95. I shall refer to the salient features of the proposed amendment later. The implementation of the circular dated 5.1.95 was kept pending vide circular dated 8.2.95 in the meantime. On 8.3.95 and 17.4.95 circulars were issued directing payment @15 paise/Kwh from 1.7.93 to 31.3.95 instead of 25.98 paise per Kwh as fuel surcharge as stipulated in circular dated 5.1.95. However, by circular dated 20.9.95 the said circulars dated 8.3.95 and 17.4.95 were withdrawn and the earlier circular dated 5.1.95 by which fuel surcharge @ 25.98 paise/Kwh had been fixed was restored.