TATA YODOGAWA LIMITED Vs. BIHAR STATE ELECTRICITY BOARD

JUDGEMENT

(1.) In this batch of writ petitions filed by consumers of electrical energy supplied by the respondent -Bihar State Electricity Board, the Circular No. 60 dated 5 -2 -1997 issued by the respondent -Board has been challenged. It has been prayed that the respondent -Board be directed not to give effect to the impugned Circular and to collect the fuel surcharge for the period 1994 -95 and 1995 -96 and onwards after considering the recommendation of the Committee appointed by this Court. By the impugned Circular (Annexure -5) the respondent -Board has provisionally calculated fuel surcharge for the periods 1 -4 -1994 to 31 -3 -1995, 1 -4 -1995 to 31 -3 -1996 and for the three quarters of the year 1996 -97 payable by the consumers at the rate of 43.89 p/kwh, 72.12 p/kwh and 102.00 p/kwh respectively. The field officers have been directed accordingly to raise the bill/additional bills on the consumers liable to pay fuel surcharge. The Circular states that the rates fixed are provisional and subject to the decision/order, if any, passed by the Hon'ble High Court. The real dispute is only as to the method of calculation of fuel surcharge, since validity of the tariff notification published on 23rd June, 1993, relating to fuel surcharge has been upheld by this Court as also by the Supreme Court by its order dated 7 -2 -1996 in Civil Appeal No. 6320 of 1991 and analogous matters. The facts of the case are taken from C.W.J.C. No. 1632 of 1997.

(2.) In exercise of power conferred by Section 49 of the Electricity (Supply) Act the respondent -Electricity Board published in the Bihar Gazette on 23rd June, 1993 a tariff notification dated 21st June, 1993 (Annexure -1). The said tariff was introduced with effect from 1st July, 1993. Under Clauses 16 -10 -1 of the 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. Clauses 16.10.2 clarifies that the Operational Surcharge shall consist of two elements (a) Fuel Surcharge and (b) other operational surcharge. Clauses 16.10.3 prescribes the formula for determining fuel surcharge applicable during the financial year in paise per unit. Clauses 16.10.4 prescribes the formula for determination of other operational surcharge. Clauses 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, an operational surcharge during the financial year will be levied at a rate provisionally calculated on monthly or quarterly or half yearly basis as decided by the Board. In case of short or excess realisation the same shall be adjusted in the next bill to be served on the consumers. Clauses 17 of the tariff is significant which provides as follows: The existing rate of fuel surcharge notified in letter No. A./CS/Costing - 44/92 -93/397 dated 29 -3 -1993 amounting to 32 paise per unit has been merged in the tariff. However, any increase in the operational surcharge thereafter only shall be levied.

(3.) The respondent -Board issued a Circular dated 4 -4 -1994 which stated that the final calculation to fuel surcharge only on average came to 26.14 paise per Kwh for the period 1992 -93. According to the petitioner, the same was taken to be 32 paise, obviously for the reason that the tariff was introduced from 1 -7 -1993 and the said increased figure was adopted in order to cover the charges till that date. On 5 -1 -1995 the Board issued another Circular calculating the fuel surcharge for the period July 1993 to March 1994 which was found to be 25.98 paise per Kwh. Other operational charge worked out as per Clauses 16.10.4 of the tariff came to 8.78 paise per Kwh. The operational surcharge was made effective from 1 -7 -1993. The consumers were billed accordingly and this gave rise to filing of a writ petition by the petitioners before this Court, namely, C.W.J.C. No. 2771 of 1995 (R). The writ petition was admitted for hearing and an interim order was passed on 6 -11 -1995. Subsequently, the matter was referred to the Division Bench for hearing.