Hyderabad
Engineeiring Industries Ltd. Vs. A.P.
State Electricity Board [1988] INSC 66 (8 March 1988)
Oza,
G.L. (J) Oza, G.L. (J) Mukharji, Sabyasachi (J)
CITATION:
1988 AIR 985 1988 SCR (3) 159 1988 SCC (2) 181 JT 1988 (1) 507 1988 SCALE
(1)471
ACT:
Electricity
Supply Act, 1948-Section 49 -Scope of powers of Electricity Board-Whether
Electricity Board has power unilaterally to alter the conditions of supply of
electricity.
Electricity
Supply Act, 1948-Sections 28 and 29 read with Sections 18 and 18A contemplate
different function than the Electricity Board unilaterally altering the
conditions of supply of electricity under Section 49.
HEAD NOTE:
% On 21st July, 1981, the Respondent Andhra Pradesh
State Electricity Board issued a notification exercising power under section 49
of the Electricity Supply Act, 1948. By this notification the Board
unilaterally altered the conditions of supply of electricity to high tension
power consumers. This notification stated that the industries will be supplied
the power for the contracted demands between 1501 KVA to 5000 KVA, at 33 KV
whereas industries whose contracted demand is above 5000 KVA shall avail supply
at 132 KV or 220 KV. To comply with this requirement high tension consumers
will either have to replace the existing transformers and high tension control
gears or to instal transformers with control gears to step down supply from the
now proposed voltage to the existing voltage and these modifications have to be
made by the industries concerned within a period of 6 months from the date of
this notification. It was further provided that after the lapse of six months
if the consumers have not made arrangements for receiving the supply at the
proposed voltage and continue to receive supply at the voltage at which they
were receiving on the date of the notification they will have to pay additional
surcharge ranging between 2.5% to 13% on their power bills. The appellants
which were consumers of high tension power challenged the validity of this
notification by way of filling writ petitions before the High Court. A Single
Judge allowed the writ petitions. In appeal a Division Bench took the view that
section 49 of the Act coupled with section 18(c) of the same Act empower the
electricity board to unilaterally alter the terms and conditions of supply, and
set aside the judgement of the Single Judge. Hence these appeals by Special 160
Leave against the Judgment of the Division Bench. The main controversy was
whether the board had power unilaterally to alter the conditions of supply of
electricity. Dismissing the appeals this Court, ^
HELD:
The contention of the appellants that under section 49 the respondent board had
no authority unilaterally to alter the conditions of supply cannot be accepted.
Sub-clause 1 of section 49 of the Electricity Supply Act, 1948 clearly provides
that the board could lay down conditions of supply and for purposes of such
supply it may also frame uniform tariffs. Sub-clause t therefore clearly authorises
the Board to lay down the conditions of supply and have to fix uniform tariffs
is provided for in sub-clause 2. If there is any doubt sub-clause 4 makes it
clear that in exercise of powers under this section Board could fix the
conditions of supply and also fix the tariffs.
[l68B-C;
167B-C] The Division Bench relied on provisions contained in Section 18(c). It
is no doubt true that under these provisions the Board exercises control in
relation to generation, distribution and utilisation of electricity and the
learned Judges of the Division Bench felt that although specified power is not
there under Section 18(c) but it is wide enough to authorise the board to alter
the conditions of supply. It is no doubt true that section 18(c) confers power
of control on the board but in our opinion the specific power under section 49
Clause t is clear enough wherein board has been authorised to lay down
conditions of supply. [168C-E] The contention that the policy of the Board to
change over of supply of power at a high voltage which involves heavy
expenditure will fall within the scope of sections 28 and 29 and therefore it
could not be done without following the procedure indicated in these provisions
has no substance. A perusal of sections 28 and 29 of the Act indicates that it
is altogether a different function rather than what is being done by the Board
in exercise of the powers under Section 49 Clause 1.[171G] As regards the
imposition of the higher tariff on failure to receive the supply at the voltage
indicated in the notification from the date specified therein or not will be
open to the Board for consideration and the parties may approach the Board and
it will be open to the Board in the facts and circumstances of each case not to
levy the surcharge indicated in the notification during a particular period and
in so doing the board will take into consideration the facts and circumstances
of each particular case [172A-B] 161 The contention that the loss incurred in
respect of smaller consumers is recovered from the present appellants, the high
tension consumer, has no substance. The transmission loss no doubt is on
account of low voltage when it travels Long distance as it is related to
distance but the quantum of loss also is proportional to the quantum of power
that travels through the transmission lines and it could not be disputed that
the power that has to travel to meet the requirements of small agricultural
consumers is negligible as compared to the quantum of power that is supplied to
these high tension consumers. [170H; 171A-B] The contention that under section
18(A)(I) read alongwith section 18(A)(23) of the Electricity Supply Act it is
the duty of the board to establish and maintain sub stations and main
transmissions lines and it is not open to the board to transfer this
responsibility to the consumers by requiring them to make their own
arrangements to step down electricity after taking it at a high voltage has no
substance. Section 2 sub-clause 7 of the Act defines the main transmission
lines but all this in sub clause 7 of section 2 refere to is about transmission
of electricity from a generating station to another generating station or to
sub-station. Apparently it refers to all the lines and equipments required to
be installed from the generating station to the distributing sub-station. Apparently
both being that of the Board itself it has to maintain it and on this basis it
could not be contended that if the consumer has to receive powers at a high
voltage and if he wants to utilise it at a low voltage it is not his
responsibility to instal equipments for stepping down the power from high
voltage to low voltage. [171C-E] Maharashtra State Electricity Board v. Kalyan Borough Municipality & Anr., [1968] 3 SCR 137; Bisra
Stone Lime Company Ltd. & Anr. etc., v. Orissa State Electricity Board and Anr., [1976]
2 S.C.R. 307 and Jagadamba Paper Industries (Pvt.) Ltd. Etc. Etc. v. Haryana State Electricity Board & Ors. Etc., [1984] I S.C.R. 165,
referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 793 of 1988 etc.
From
the Judgment and order dated 25.6.1987 of the Andhra Pradesh High Court in Writ
Petition No. 8019 of 1987 F.S. Nariman, G.L. Sanghi, A.K. Sen, Dr. L.M. Singhvi,
Anil B. Diwan, K. Srinivasamurthy, Kailash Vasdev, K.K. Jain, K.S. Murthy, U.K.
Khaitan, Ajay K. Jain, Vipin Sanghi, Parveen Kumar, A.M. Singhvi, R.S. Yadav,
H.M. Singh, N. Waziri, Vinoo Bhagat, Shree 162 Narain and Sandeep Narain for
the Appellants.
Shanti
Bhushan, V.B. Reddy and K. Rajendra Chaudhary for the Respondents.
The
Judgment of the Court was delivered by OZA, J. Leave granted.
These
special leave petitions have been filed against the judgment of the Division
Bench of the Andhra Pradesh High Court delivered on 25.6.87 wherein the learned
Judges set aside the orders passed by learned Single Judge, of the High Court
in Letters Patent Appeal. The petitioners had filed writ petitions before the
High Court which were heard by a learned Single Judge and who by his orders
quashed the notification issued by the respondent Board dated 21.7.81
unilaterally altering the conditions of supply. The learned Single Judge held
that the Board had no authority unilaterally to alter the conditions of supply
of electricity but on appeal the learned Judges of the Division Bench set aside
the judgment passed by the Single Judge and held that the Board respondent had
the statutory authority under Section 49 of the Electricity Supply Act, 1948
('Act' for short) to lay down the conditions of supply and if any doubt exists
Section 18 clause (c) of the Act confers powers on the Board. It is against
this judgment of the Division Bench in all these petitions which were disposed
of by a common judgment that these special leave petitions have been filed and
therefore these matters are before us.
On
21.7.81 the respondent A.P. State Electricity Board issued a notification
exercising powers under Sec. 49 of the Act. By this notification the Board
unilaterally altered the conditions of supply for the high tension consumers of
electricity. Admittedly these consumers are the industries which consume high
tension power. This notification stated that the industries will be supplied
the power for the contracted demands between 1501 KVA to 5000 KVA, at 33 KV
whereas industries whose contracted demand is above 5000 KVA shall avail supply
at 132 KV or 220 KV. To comply with this requirement high tension consumers
i.e. the present appellants before this Court will either have to replace the
existing transformers and high tension control gears or to instal transformers
with control gears to step down supply from the now proposed voltage to the
existing voltage and these modifications have to be made by the industries
concerned within a period of 6 months from the date of this notification. It
was further 163 provided that after the lapse of six months if the consumers
i.e. appellants have not made arrangements for receiving the supply at the
proposed voltage and continue to receive supply at the voltage at which they
were receiving on the date of the notification they will have to pay additional
surcharge ranging between 2.5% to 13% on their power bills.
It is
alleged that after this notification the appellants and other similarly
situated consumers made a representation to the Board and they were told that
as the transmission and transformation losses in respect of supply to these
high tension consumers is very much it has been decided by the Board to minimise
these transmission losses and it is for that purpose that it has been decided
to supply at high voltage as transmission of high voltage current results in
lesser losses of transmission and by this process energy which is lost in the
transmission will be saved and it was for this purpose that this policy has
been adopted by the Board. According to the appellants consumers their
grievance was that for the purpose of receiving power at a high voltage they
will have to instal their own transformers which would involve heavy capital
investments and for supply of power at high voltage even the Board will have to
lay new lines of supply and all this would not be economical as compared to the
contemplated loss of power on account of transmission but as Board did not
accept the representation, the petitioners filed their petitions before the
High Court and the learned Single Judge of the Andhra Pradesh High Court by his
judgment dated 24.9.82 allowed the writ petitions against the judgment of the
learned Single Judge, in appeal before the Division Bench the judgment of the
learned Single Judge was set aside and the Division Bench took the view that
Sec. 49 of the Act coupled with Sec. 18(c) of the same Act empowered the
electricity board to unilaterally alter the terms and conditions of supply and
it is against this judgment of the Division Bench that these appeals are before
us. Before this notification the electricity was being supplied to high tension
consumers at 11000 Voltes or 33000 Voltes. By this notification they were
expected to receive supply at higher voltage specified in the notification.
The
main contention advanced before the High Court in the writ petitions was that
it was not open to the Board to direct the existing consumers to take the
supply at a higher voltage then the voltage at which they were receiving
supplies or to impose an additional charge on the supply.
It was
contended before us that in view of Sec. 26 read with 164 clause 6 of the
schedule to the Indian Electricity Act, 1910 it is not open to the Board to
unilaterally impose supply at a higher voltage. According to the learned
counsel as a particular customer has requisitioned supply of power at a
particular voltage and Board had agreed to do, it was not permissible now to
alter the conditions. On the contrary on behalf of the Board it was contended
that Sec. 26 of Electricity Supply Act no doubt puts an obligation on the Board
to supply power as were the obligations of the licensee under the 1910 Act and
also the provisions of Clause 6 of the Schedule will apply to the Board but it
was contended that it has not been provided anywhere in Clause 6 that it is the
choice of the consumer to require supply at a particular voltage. It was also
contended that clause 6 sub- clause 5 provides the requisition to be in the
form and the prescribed form does not indicate that it is open to the consumer
to require the supply at any particular voltage. It was also contended that in
fact Sec. 26 itself talks of subject to the provisions of this Act and Sec. 49
of the Act confers power on the Board to lay down the conditions of supply. It
was also contended on behalf of the respondent Board that the Board chose to
switch over to supply of high voltage in order to minimise the transmission
losses as according to them if the electricity is transmitted at 33000 volts
instead of 11000 volts the transmission loss will be reduced to 1/19th and if
the supply is further increased to 132 KV the transmission loss will be further
reduced to 1/44th with the result that the transmission losses could be reduced
to 99.3%. It was also contended on behalf of the petitioners that in case of
some industries the question of transmission losses is not substantial as some
of them are situated just near the supply station and even if there is some
loss it is negligible as compared to the heavy cost of installation which will
have to be put up. An attempt was also made to suggest that when the distance
is very short the transmission loss will be very low but one fact to be kept in
consideration which was lost sight of at some stage that transmission loss is
not only related to the distance that the power travels but also the quantum of
power that travels. Admittedly all these petitioners are consumers who are
consuming huge quantities of power which is clearly indicated from the bills,
charts of which were filed by the petitioners themselves before this Court
indicating that their yearly power bills which run into crores and it is in
this context that the question of transmission loss will have to be considered.
The
main controversy which was before the High Court was as to whether the Board
has power unilaterally to alter the conditions of supply. On behalf of the
petitioners it was contended that Sec. 49 only confers powers on the Board to
revise the tariffs periodically and it was 165 contended that a little before
the present disputed notification was issued the tariffs were revised and that
revision of tariffs was done keeping in view all the relevant consideration
including all losses in transmission and transformation and therefore
immediately after the revision of the tariffs there was no occasion for
exercise of power under Sec. 49 by issuing the impugned notification.
It was
contended that Sec. 26 read with clause 6 of the Schedule is an obligation on
the Board to supply the power as requested by the consumer. Sec. 26 reads:
"26.
Board to have powers and obligations of licensee under Act 9 of 1910. 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 (9 of 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 to 11, sub- sections (2) and (3) of Section 21 and
Section 22, sub-section (2) of Section 22-A and Sections 23 and 27 of that Act
or in Clause 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
further 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. )" It is clear from a perusal of this provision that the
obligation under Sec. 26 is subject to the provisions of this Act. Clause 6
pertaining to requisition for supply to owner and occupiers of the electricity
provides for conditions under which a licensee will be bound to supply and
sub-clause 5 of clause 6 of the Schedule under 1910 Act requires the
requisition to be in a form prescribed and the form prescribed does not
indicate that the consumer is free to ask for the supply at a particular
voltage only.
On
behalf of the petitioners it was vehemently contended that Sec. 49 confers
powers on the Board only to revise the tariffs and it has not conferred any
power on the Board to alter unilaterally the supply 166 at a particular
voltage. The main contention on behalf of the petitioner was that Sec. 49 only
empowered the Board to fix uniform tariffs and in support of the contention
reliance was placed on the case of Maharashtra State Electricity Board v. Kalyan
Borough Municipality & Anr., [1968] 3 SCR 137 and Bisra Stone Lime Company
Ltd. & Anr. Etc. v. Orissa State Electricity Board & Anr., [1976] 2 SCR 307. In these
cases no doubt Sec. 49 has been considered but the only question in these cases
was pertaining to tariff and there was no occasion to consider the scope of
Sec. 49 Clause I which empowers the Board to lay down conditions of supply.
Sec.
49 reads:
"49.
Provision for the sale or 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 167 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." Sub-clause 1 of this
Section clearly provides that the Board could lay down conditions of supply and
for purposes of such supply it may also frame uniform tariffs. Sub-section 1
therefore clearly authorises the Board to lay down the conditions of supply and
have to fix uniform tariffs is provided for in sub-clause 2. If there is any
doubt sub- clause 4 makes it clear that in exercise of powers under this
Section Board could fix the conditions of supply and also fix the tariffs and
it was therefore contended on behalf of the respondent Board that although the
Division Bench referred to Sec. 18(c) still the Board has enough power under
Sec. 49 itself to lay down the conditions of supply. This question about the
conditions of supply specifically came up before this Court in the case of Jagadamba
Paper Industries (Pvt.) Ltd. Etc. Etc. v. Haryana State Electricity Board &
Ors. Etc., [1984] 1 SCR 165 and it was observed at page 172:
"We
are of the view that the Board has been conferred statutory power under S.
49(1) of the Act to determine the conditions on the basis of which supply is to
be made. This Court in Bisra Stone Lime Company Ltd. & Anr. etc. v. Orissa
State Electricity Board & Anr., [1976] 2 SCR 307 took the view that
enhancement of rates by way of surcharge was well within the power of the Board
to fix or revise the rates of tariff under the provisions of the Act. What
applied to the tariff would equally apply to the security, that being a
condition in the contract of supply. Each of the petitioning consumers had
agreed to furnish security in cash for payment of energy bills at the time of
entering into their respective supply agreements. There was no challenge in
these writ petitions that the demand of security at the time of entering into
supply agreements has to be struck down as being without jurisdiction. Section
49(1) of the Act clearly indicates that the Board may supply electricity to any
person upon such terms and conditions as the Board thinks fit. In exercise of
this power the Board had initially introduced the condition regarding security
and 168 each of the petitioners had accepted the term." It is not disputed
that although under the original agreement the electricity Board was bound to
supply power at a particular voltage but after the lapse of that agreement by
lapse of time subsequent agreement provided the clause where the right has been
reserved by the Board to alter the conditions of supply and that is why the
only contention advanced by the petitioners was that under Sec. 49 the
respondent Board had no authority unilaterally to alter conditions of supply
and as discussed above this contention cannot be accepted.
The
Division Bench relied on provisions contained in Sec. 18 sub-clause (c) which
reads:
"to
exercise such control in relation to the generation, distribution and utilisation
of electricity within the State as is provided for by or under this Act. "
It is no doubt true that under these provisions the Board exercises control in
relation to generation, distribution and utilisation of electricity and the
learned Judges of the Division Bench felt that although specific power is not
there under Sec. 18(c) but it is wide enough to authorise the Board to alter
the conditions of supply. It is no doubt true that Sec. 18(c) confers power of
control on the Board but as indicated above, in our opinion the specific power
under Sec. 49 clause I is clear enough wherein Board has been authorised to lay
down the conditions of supply.
On the
merits of the contention various controversies were raised in respect of the
calculations and mathematics of calculating the transmission loss. An attempt
was also made on behalf of petitioners to suggest that the way of calculations
suggested by the respondent Board does not appear to be correct but it is not
disputed and it can not be disputed that where power travels through the
transmission lines there is always some loss of power. It is also a fact which
could not be disputed that loss of power will be related to the-quantum of
power which travels through the transmission line and the distance through which
power has to travel. It is also a fact which could not be disputed that if
power is transmitted at high voltage the loss during transmission is less as
compared to the loss when the power is transmitted at a low voltage and in view
of these accepted scientific facts it is not necessary for us to go into the
calculations and mathematical part of it to find out 169 as to whether the
calculations submitted by the Board is correct or those suggested on behalf of
the petitioners are correct. The fact remains that lower the voltage higher the
transmission loss, higher the voltage lower the transmission loss and it is
also not in dispute that these appellants are high tension consumers consuming
substantial power and therefore when power travels through transmission lines
even for short distances it is not smaller quantities of power but heavy
quantities of power is transmitted and in this view of the matter it could not
be said that the policy decision taken by the Board to supply these high
tension consumers power at high voltage so that transmission loss and
transformation loss should be minimised could not be said to be any wrong
decision or a decision not supported by scientific reasoning.
It was
also contended that 6 months' time granted was too short in view of the fact
that these consumers were expected to instal transformers and equipments which
ordinarily are not easily available in this country and which involved high
capital investment. It was also suggested that even the respondent Board has
not been able to lay lines for supply at high voltage as during the course of
this litigation most of the appellants have accepted to receive the supply at
the high voltage and therefore it was contended that the enhanced rate for
supply at low voltage which was brought into force immediately after six months
of the issue of this notification is not only justified as it was termed by
learned counsel for the petitioners to be penal but it was contended that it is
not reasonable as in spite of the fact that the petitioners accepted to receive
supply at high voltage and some of them have even installed the transformers
and other equipments but still Board was not in a position to lay supply lines
for the high voltage supply of power and on this basis in substance it was vigorously
contended that this enhanced rate should not be made chargeable from the date
immediately after the expiry of six months after the issue of this
notification.
In one
of the case i.e. A.P. Paper Mills which has been specifically alleged that inspite
of the fact that the petitioner has installed a transformer but the respondent
Board could not lay down the lines as there was some injunction issued against
the Board when the work for laying the lines started still although the Board
is not in a position to supply the power at high voltage still the appellant is
compelled to pay the higher rate as he is not receiving power at the high
voltage indicated in the notification.
170 So
far these aspects of the matter are concerned admittedly they were not before
the High Court. Originally what was challenged in the High Court was the power
of the Board to unilaterally alter the conditions of supply. This question
about from what date the higher rates should be charged and as to whether grant
of six months time to complete the preparation for receiving the supply at a
higher voltage is reasonable or not were not before the High Court (Single
Judge) nor before the Division Bench and in fact, tacts in respect of each
petitioner on the basis of which these questions could be considered are also
not before us although an attempt has been made by some of the appellants by
additional affidavits and documents to place it before us. But it is not
sufficient nor it is proper to decide these questions. After all the respondent
Board is an authority under a Statute and if the appellants are able to satisfy
the authority that the time of six months in the context of the circumstances
when this notification was issued was not reasonable it is open to the Board to
consider from what date to enforce the enhanced rates for supply at lower
voltage taking into consideration all the cases and also keeping in view the
circumstances in connection with installation of transformers and laying the
lines which have come during the course of these hearings.
It is
also open to the Board that in the special facts of any particular case to
provide a separate date for enforcement of the higher rate. But all these
questions can not be decided in the scope of the present appeals.
It was
also contended by the appellants that by altering this condition of supply the
appellants will have to undergo huge capital investment burden. On the other
hand on behalf of the Board it was contended that if the bills of supply of
power of these appellants are looked at it will indicate that what they are
supposed to spend on the installation in stepping down power is not so heavy
and it was contended that ultimately if this is not done by the Board the loss
incurred on account of transmission has to be borne not only by these consumers
who are substantially responsible for the transmission loss but by those also
who are not at all responsible for heavy transmission losses.
An
attempt was made to suggest that when power is supplied to the rural consumers
mainly agriculturists and small consumers the power has to be supplied at long
distance and that is also to be supplied at low voltage and therefore it was
contended that in fact the long distance supply to smaller consumers is really
responsible for the loss during transmission for which these high tension
consumers i.e. the present appellants are being penalised as they are being
called upon to pay at a higher rate but this argument suffers from a fallacy.
As indi- 171 cated above transmission loss no doubt is on account of low
voltage when it travels long distance as it is related to distance- but the
quantum of loss also is proportional to the quantum of power that travels
through the transmission lines and it could not be disputed that the power
that- has to travel to meet the requirements of small agricultural consumers is
negligible as compared to the quantum of power that is supplied to these high
tension consumers, the present appellants and therefore there is no substance
in the contention that the loss incurred in supply to the smaller consumers is
being recovered from the present appellants, the high tension consumers.
It was
also contended that under Sec. 18(A)(1) read along with Sec. 18(A)(2) of the
Act, it is the duty of the Board to establish and maintain sub-stations and
main transmission lines and it is not open to the Board to transfer this
responsibility to the consumers by requiring them to make their own
arrangements to step down electricity after taking it at a high voltage.
Section 2 sub-clause 7 of the Act defines the main transmission lines but ll
this in sub-clause 7 of Section 2 refers to is about transmission of
electricity from a generating station to another generating station or to a
sub-station. Apparently it refers to all the lines and equipments required to
be installed from the generating station to the distributing sub-station.
Apparently
both being that of the Board itself it has to maintain it and on this basis it
could not be contended that if the consumer has to receive power at a high
voltage and if he wants to utilise it at a low voltage it is not his
responsibility to instal equipments for stepping down the power from high
voltage to low voltage.
It was
also contended that Sections 28 and 29 read with Sections 18 and 18A of the Act
indicate that where any scheme as contemplated under Sections 28 and 29 is to
be formulated the procedure prescribed therein had to be followed and it was
suggested that as the policy of the Board to change over of supply of power at
a high voltage involves heavy expenditure it will fall within the scope of
Sections 28 and 29 and therefore it could not be done without following the
procedure indicated in these provisions. A perusal of these sections 28 and 29
of the Act indicates that it is altogether a different function rather than
what is being done by the Board in exercise of the powers under Section 49
clause 1 and therefore this contention that the procedure indicated in Sections
28 and 29 has to be followed, is of no substance.
In the
light of discussions above therefore, in our opinion, there 172 is no substance
in these appeals. But as indicated earlier as regards the imposition of the
higher tariff on failure to receive the supply at the voltage indicated in the
notification from the date specified therein or not will be open to the Board
for consideration and the parties may approach the Board and it will be open to
the Board in the facts and circumstances of each case not to levy the surcharge
indicated in the notification during a particular period and in so doing the
Board will take into consideration the facts and circumstances of each
particular case. The appeals are therefore dismissed. In the circumstances of
the case, parties are directed to bear their own costs.
H.S.K.
Appeals dismissed.
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