J.M.D.
Alloys Ltd. Vs. Bihar State Electricity Board & Ors [2003] Insc 148 (6 March 2003)
S. Rajendra
Babu, D.M. Dharmadhikari & G.P. Mathur.
(With C.A. No.8395 of 2002) G.P.Mathur, J.
These
appeals are directed against the judgment and order dated 18.4.2000 of a
Division Bench of Patna High Court, by which the Writ Petition preferred by M/s
J.M.D. Alloys Ltd. was partly allowed and the Bihar State Electricity Board was
directed to serve a fresh bill as per the observations made in the judgment and
to restore the electricity connection within two days of the payment of the
said bill.
M/s
J.M.D. Alloys Ltd. (hereinafter referred to as the petitioner) has a high
tension industrial connection of electricity for running induction furnaces for
manufacturing steel ingots. The officials of the Bihar State Electricity Board
(hereinafter referred to as "the electricity board") inspected the
petitioner's factory premises on 26th and 27th August, 1999 and found that the
seal fixed on CT/PT box was tampered. An FIR was lodged at the concerned police
station on 27.8.1999 alleging that the petitioner had committed theft of 6.96 lakh
units and had thereby caused a loss of Rs.2.58 crores to the Electricity Board.
The Electricity Board thereafter issued a bill dated 31.8.1999 for Rs.8,85,77,131/-.
This bill was challenged by the petitioner by filing CWJC No. 8939 of 1999
before the High Court. The learned Single Judge, who heard the writ petition
vide his judgment/order dated 27.9.1999 directed that a show cause notice in the
light of the observations made in the judgment be given to the petitioner
within a week and it will be open to the petitioner to raise all its defences
against the charge of committing theft of electrical energy and/or drawing
electrical energy at a load higher than its contracted demand. It was further
directed that the show notice shall be given by the General Manager-cum-Chief
Engineer, Central Bihar Area, Electricity Board, Patna, or by any other officer
of the Electricity Board of equal or higher rank and he shall pass final order
after giving an opportunity of hearing to the petitioner. The liability of the
petitioner was to be determined afresh on the basis of the final order passed
by the Chief Engineer.
The
Chief Engineer (Transmission) Bihar State Electricity Board thereafter issued a
notice dated 13.10.1999 to which a reply was given by the petitioner on
20.10.1999. After affording an opportunity of personal hearing and considering
the reply, the Chief Engineer passed an order on 27.10.1999 holding that Clause
16.9 (b) and (c) of Tariff is attracted and the consumer M/s J.M.D. Alloys Ltd.
is liable to pay compensatory bill in terms of the aforesaid clauses of the
Tariff. In accordance with the decision of the Chief Engineer, a fresh bill
dated 29.10.1999 for Rs.7,85,77,131/- was issued. This bill was again
challenged by the petitioner by filing a Writ Petition which was dismissed by a
learned Single Judge on 13.12.1999.
Against
the said decision the petitioner preferred a Letters Patent Appeal which was
partly allowed by the Division Bench by the impugned judgment and order dated
18.4.2000. The Division Bench held that the petitioner is liable to pay
electricity charges in accordance with Clause 16.9 of the Tariff.
However
with regard to fuel surcharge it was held that the same cannot be levied at
thrice the rate in accordance with Clause 16.9 of the Tariff, which permits
consumption of electricity to be assessed at thrice the rate per unit.
Feeling
aggrieved by the aforesaid decision, M/s J.M.D. Alloys Ltd. have preferred
Civil Appeal No.8394 of 2002 and the Bihar State Electricity Board has
preferred Civil Appeal No.8395 of 2002.
As
stated earlier, the Chief Engineer (Transmission), Bihar State Electricity
Board, issued a notice dated 13.10.1999 to the petitioner. The notice was
issued on the grounds, inter alia, that the inspection of the business premises
of the petitioner was conducted from 14.15 hours to 20.30 hours on 26.8.1999
and thereafter on the following day; that on examination of CT/PT unit and its
terminal box, the seal bearing No.045660P which was put on CT/PT terminal box
on 14.5.1999, was found to be tampered with and the signature of the authority
was also not found on the same; that a seizure memo of the tampered seal was
prepared on the same day; that on account of the fact that the seal on the
terminal box had been removed, it had become easily accessible to the consumer
and by fiddling with the terminals, namely by removing the wires or putting
wires of higher resistance, the flow of energy to the metering unit was
manipulated to show a very low recording of both KVA and unit consumption; that
the total capacity of induction furnaces on operation was 12 M. T. for which
energy requirement was 7200 KVA but the petitioner had entered into a contract
demand of 4850 KVA and, therefore, the consumer was engaged in theft of
electricity and was consuming energy at a much higher load than the contracted
demand; that the supplier of the furnaces to the petitioner, namely Megatherm
Electronic Pvt. Ltd. had reported to the Director General of Police
(Vigilance), Bihar State Electricity Board consumption equivalent to
approximately 3000 KVA for running the furnaces exclusive of auxiliary load
like water supply, cooling systems, cranes, etc; that the feasibility report
given to the Electricity Board by the petitioner showed that the minimum
required energy for each MT furnace was 500 KVA for the furnace alone besides
100 KVA for auxiliary load and thus 600 KVA was required for each MT furnance;
that the electronic meter showed that the power had been consumed by the
factory on an average basis of 21.25 hours per day which runs into two shifts
of 12 hours each having 40 workers in each shift and the load and the capacity
of two furnaces showed production of 3000 MT ingots every month and, therefore,
the minimum consumption of power was 16.20 lakh units per month whereas bills
had been paid on an average of 9.24 lakh units per month; that the theft of
power was further substantiated from the meter reading of J.D. Feeder at 33/11
KV Air Force Sub-station Bihta and also the claim filed by the petitioner under
clause 13 of the agreement and on the basis of the aforesaid facts and material
it was obvious that the petitioner had been committing theft of electricity on
a massive scale by tampering with the seal of the CT/PT terminal cover. The
petitioner was accordingly directed to show cause as to why a bill in terms of
Clause 16.9 of the Tariff Notification be not raised. The petitioner give a
reply to the show cause notice raising various pleas and denying that it had
committed any theft of electricity. It was pleaded that the meter had been
regularly inspected by different teams of the Electricity Board but no
tampering of the seal of the CT/PT terminal cover had been found; that the
furnaces can operate only to the extent of 80% of its rated capacity; that the
Electricity Board itself had assessed the capacity of the connected load at
5100 KVA, which was very near to the contracted demand; that the meter
installed in the factory premises never recorded a maximum demand of more than
the contracted demand; that the assumption that 100 KVA per ton is required for
auxiliary load was not based on facts and that in the case of a high tension
industrial consumer the connected load is of no relevance because to constantly
monitor the load availed of by a high tension consumer a Trivector meter,
containing the maximum demand indicator is compulsorily installed. It was
further submitted that the seal in CT/PT unit had not been tampered with and
the allegation regarding tampering of the seal was being investigated by the
Investigating Officer of the criminal case registered against the petitioner
and his report shall be considered by the Court of law at the appropriate time.
The
Chief Engineer after consideration of the material and the submissions made
held that the theft of electricity cannot be found physically and this has to
be worked out from evidences parameters and various circumstances under which
the consumer is availing power. He passed a detailed order on 27.10.1999 and
the relevant part of the findings recorded by him are being reproduced below:
"It
appears from Annexure 1 of show-cause notice that two nos. of induction
furnaces of six M.T. capacity each totaling 12 MT were in operation. This is
supported by the facts with the inspection report that the total capacity of
Transformer was 7230 KVA. The CTPT cover terminal seal which was found tampered
was unsigned. There were large number officials of the Board including
Executive Magistrates and therefore there is no reason to disbelieve that seal
of terminal cover of CTPT was tampered. The capacity of the furnaces being 12
MT it is evidently clear that the power was used unauthorised by the consumer
because the consumption recorded in the meter was much less than what it ought
to have been on actual load i.e. 7200 KVA (600 X 12 T). In this connection the
Annexure-3 & 4 the vouchers of the purchase of induction furnace from Megatherm,
show the capacity of induction furnace, 6 MT as 2500 KW i.e. equivalent to 3000
KVA therefore the load of 12 M.T. Furnace besides @ KVA/MT as auxiliary load
totaling to 7200 KVA as the actual load. It is not out of place to mention here
that the induction furnace Association of Bihar has proposed and agreed that
the load of induction furnace could be 600 KVA per M.T.
This
is also brought to my notice that on average basis the power was consumed at
the average period of 21.25 hrs. per day. The factory runs into two shifts with
40 workers in each shift. So far as the nos of days of pilferage is concerned,
it has been rightly interpreted and assessed the maximum period of six months
for the assessment of compensatory amount under clause 16.9 of Tariff.
The
variant factors of the consumption as per formula i.e. LEFXHED have been
thoroughly taken care of in the formula provided in the Tariff.
From
the facts and circumstances as set forth above, it is absolutely clear that
clause 16.9 (b) and (c) of Tariff is attracted and the consumer M/s JMD Alloys
is liable to pay the compensatory bill in terms of clause 16.9 of Tariff."
In accordance with the order of the Chief Engineer, a fresh electricity bill
was prepared on 29.10.1999 for Rs.4,09,32,925/- towards the cost of units of
electricity and Rs.3,90,73,217/- towards fuel surcharge. After adding the
electricity duty and charges for rental of transformer and fuse replacement,
etc. a bill was issued for Rs.8,85,77,131/-.
Shri Gopal
Subramanium, learned senior counsel for the petitioner, has submitted that the
factory premises of the petitioner had been inspected on 14.5.1999 and then
again on 20.7.1999 and no irregularity of any kind had been found on the said
dates and, therefore, the allegation that the petitioner had tampered with the
seal of CT/PT unit is wholly incorrect.
There
was no material or evidence to show that any effort had been made by the
petitioner to interfere with the metering unit which may have the effect of
showing lesser consumption of energy. Learned counsel has also submitted that
in absence of any evidence relating to presence of artificial means which would
have rendered abstraction of electrical energy possible the provisions of
Clause 16.9 of the Tariff could not be made applicable and the electricity bill
issued to the petitioner is incorrect. It has also been urged that the last
inspection of the petitioner's premises having been done on 20.7.1999, there is
no justification for counting the period of dishonest abstraction of energy as
180 days (six months) and, therefore, the bill issued to the petitioner is for
much longer period which was not permissible in law.
The
learned counsel has further submitted that the findings recorded by the Chief
Engineer are wholly incorrect as instead of basing his order on the actual
production of steel, he has gone by the capacity of the furnaces. Shri Subramanium
has also urged that the faulty recording of the meter has to be judged from the
standpoint of Section 26(6) of the Indian Electricity Act, 1910 and the matter
should have been referred to Electrical Inspector.
Shri
V.R. Reddy, learned senior counsel for the Electricity Board, has submitted
that Section 26(6) of the Indian Electricity Act has no application to a case
where the seal fixed on CT/PT terminal box had been tampered with and the
recording of consumption by the meter had been effected by recourse to
artificial means. Learned counsel has laid stress on the fact that the Chief
Engineer, after considering all the relevant material and circumstances has
recorded a categorical finding that the seal of the CT/PT terminal box had been
tampered with and the petitioner had exceeded the contracted load and had also
dishonestly abstracted electrical energy to a very large extent. According to
the learned counsel, the findings recorded by the Chief Engineer being based
upon relevant material are not open to challenge in proceedings under Article
226 of the Constitution of India. In support of the appeal preferred by the
Electricity Board, Shri Reddy has submitted that the surcharge being part of
the electricity bill, the Division Bench of the High Court had erred in holding
that the same was chargeable on per unit basis and not at thrice the value
thereof. According to the learned counsel, in view of Clause 16.9 of the Tariff,
the fuel surcharge has also to be levied at three times the units assessed.
It may
be stated at the very outset that a detailed show cause notice dated 13.10.1999
mentioning all the relevant facts was served upon the petitioner to which the
petitioner gave a reply on 20.10.1999. The order of the Chief Engineer mentions
that the petitioner was afforded an opportunity of personal hearing and its
counsel appeared before him and argued the matter on 25.10.1999 and 26.10.1999.
The Chief Engineer has recorded a clear finding that the seal on CT/PT terminal
box was found to be tampered with. A seal bearing No.045660P had been put on
the CT/PT terminal box on 14.5.1999 and the authority fixing the seal had put
his signatures thereon.
At the
time of the inspection on 27.8.1999, the seal was found to be tampered with,
which was seized by the inspecting team. The seal did not contain the signature
of the authority who had put the seal. The record shows that the inspection had
been done by a high level team consisting of as many as 8 responsible officers,
some of whom had come from the headquarters of the Electricity Board at Patna.
An Executive Magistrate was also a member of the team. The Manager of the
petitioner himself lodged a report on 28.8.1999 with the Deputy Superintendent
of Police, Danapur (Patna), alleging that 8 officers of the Bihar State
Electricity Board with armed force visited and tested the installation and the
members of the team with the help of screw and plier themselves tampered with
the cover of the LT terminal box of CT/PT and the plastic seal was removed and
brought down by one of the Executive Engineers. However, in reply to the show
cause notice filed by the petitioner, tampering of the seal was denied and it
was pleaded that the matter was being investigated by the investigating officer
of the criminal case registered against the petitioner and his report shall be
considered by the Court at the appropriate time. The Chief Engineer after
considering the entire material and taking into consideration the fact that
there were large number of officers of the Board at the time of the inspection,
has recorded a finding that the seal had been tampered with.
It is
an admitted position that in the factory of the petitioner there were two
furnaces, each of 6 MT and thus the total capacity was 12 MT. The manufacturer
of the induction furnaces namely, Megatherm Electronic Pvt. Ltd. had given in
writing that the load of 6 MT induction furnace was 2500 KV which is equivalent
to 3000 KVA and, therefore, the actual load of the furnaces installed at the
petitioner's factory, after taking into consideration the auxiliary load, came
to 7200 KVA. The Induction Furnaces Association of Bihar of which the
petitioner is also a member, had agreed and proposed that the load of an
induction furnace could be taken to be 600 KVA per MT.
On
consideration of these factors the Chief Engineer came to a conclusion that the
actual load of the petitioner's factory was 7200 KVA. The other material which
has been considered by the Chief Engineer is that on an average the power was
consumed for 21.25 hours per day as the factory was running in two shifts with
40 workers in each shift and, therefore, the number of units being actually
consumed were much higher than that recorded in the meter. On the basis of
these findings, the assessment has been made of the compensatory amount under
Clause 16.9 of the Tariff.
The
contention that the dispute regarding tampering of the seal of CT/PT terminal
unit should have been referred to the Electrical Inspector, has hardly any
merit. In Madhya Pradesh Electricity Board & Ors. v. Basantibai, 1988(1)
SCC 23, it has been held that a dispute regarding the commission of fraud in
tampering with the meter and breaking the body seal is one outside the ambit of
Section 26(6) of the Indian Electricity Act and the Electrical Inspector has no
jurisdiction to decide such cases of fraud. It was further held that under
Section 26(6), the only dispute which can be decided by the Electrical
Inspector is as to whether the meter is correct and is accurately recording the
reading or there is some fault in the same. Since in the present case it has
been found that the seal on the CT/PT terminal box had been tampered with and
the natural working of the meter had been affected by taking recourse to
external devices, a dispute of this kind cannot be referred to an Electrical
Inspector.
The
next contention raised is that the period of 180 days for which theft of
electricity has been assessed is absolutely wrong and has no rational basis.
The Electricity Board has proceeded on the footing that Clause 16.9 of the
Tariff framed by the Bihar State Electricity Board with the approval of the
State Government is applicable. Clause 16.9 of the Tariff reads as under:
"16.9
(A) Detection of unauthorised load :- If at any time the consumer is found
exceeding the contracted load without specific permission of the Board, the
Board may without prejudice to its other rights under the agreement or under
the provisions of the Electricity Act, estimate the value of the electrical
energy, so extracted, consumed or used shall be calculated as below and may
also disconnect the supply without notice:- I. Necessary assessment for
compensation in the following malpractice and theft of energy cases shall be
made as below:- (a) (b) In case of using energy by creating obstruction in
running of meters or interfering with the system of supply or wires etc.
(c) ..
Unit
assessed = L x F x H x D Where L =. H = D= is the no. of days for which the
pilferage took place which can be established from production of satisfactory
evidence by the consumer. In case there is no possible evidence to establish
the period, this factor be taken equivalent to 180 or the no. of days elapsed
from the date of connection/installation of meter till the date of detection of
the pilferage whichever is less.
F=..
II. .
III.
Method of charging the assessed units as indicated in para I & II above.
(a)
The consumption so assessed shall be charged at thrice the rate per unit of the
Tariff applicable to the consumer excluding the consumption recorded by the
meter and the latter shall be charged at the appropriate tariff rates. The
amount billed at this (thrice the tariff rate) shall not be taken into
consideration for the purpose of computing consumer's liability to pay
monthly/minimum guarantee.
(b) ..
IV
When connected load is more than the sanctioned load in case of all categories
LT connection except Domestic Service.
Assessment
charge:- Rs. C x M (LD-LS)x3 Where, M= Minimum consumption guarantee charge per
BHP per month as applicable in the tariff schedule.
LD= is
the load detected in BHP at the time of inspection.
LS= is
the load sanctioned to the consumer in BHP C= This factor be taken equivalent
to six months or no. of months or part thereof elapsed from the date of
connection/installation whichever is less." The relevant part of the
Tariff quoted above shows that in the cases of theft of electricity or
dishonest abstraction of electrical energy the assessment for compensation has
to be done on the basis of a formula wherein 'D' stands for number of days for
which the pilferage took place and where there is no possible evidence to
establish the period, this factor can be taken to be equivalent to 180 days.
Similarly, in a case where connected load is more than the sanctioned load, the
assessment charge has to be done on the basis of a formula where 'C' stands for
six months or the number of months or part thereof elapsed from the date of
connection/installation, whichever is less. Therefore under the Tariff in both
the cases the period can be taken as 180 days or six months. It is on the basis
of this formula that the assessment for consumption of units has been done for
180 days. In Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board &
Ors., 1998 (4) SCC 470, it has been held that the terms of conditions for
supply of electricity to consumers notified by the Board in exercise of power
under Section 49 of Electricity (Supply) Act, 1948 and made applicable to all consumers
availing supply of electricity, are statutory in character. This being the
legal position, the Electricity Board in our opinion rightly applied Clause
16.9 of the Tariff and there is no infirmity in the assessment made and the
bill prepared in pursuance thereof.
Shri Gopal
Subramanium has also submitted that after the inspection had been done on
27.8.1999, an FIR had been lodged against the petitioner on the same day by Shri
Om Prakash, Assistant Executive Engineer at the Police Station and a criminal case
was registered under Section 39/44 of Indian Electricity Act. This case was
investigated and thereafter a final report was submitted, which was accepted by
the concerned Magistrate and as a result of this order, the petitioner stands
exonerated from the charge of theft of electricity and no compensatory bill
could be issued by taking recourse to Clause 16.9 of the Tariff. Shri V.R.
Reddy, learned senior counsel for the Electricity Board has submitted that
before accepting the final report, the learned Magistrate had issued notice to Shri
Om Prakash, Assistant Executive Engineer, but the said notice was not served
upon him as he was transferred from Patna on account of his allocation to Jharkhand
State and as such no representation could be made on behalf of the Electricity
Board against the final report. Subsequently, an application has been moved on
behalf of the Electricity Board before the concerned Magistrate for recall of
the order by which final report was accepted. In our opinion, the mere acceptance
of final report by the Magistrate cannot amount to a finding by the criminal
Court that theft of electricity was not committed. The accused was not even
summoned, no charge was framed nor any evidence was recorded. In such a
situation, it cannot be held that the criminal Court has recorded any finding
to the effect that the petitioner has not committed theft of electricity. That
apart, the purpose of a trial under Section 39/44 of the Indian Electricity Act
is entirely different and the object is to punish and sentence the person who
is alleged to have committed the offence. The trial of an accused in a criminal
case can have no bearing in the matter of assessment made in accordance with
the tariff of the value of electricity dishonestly abstracted or consumed.
Therefore, the contention raised on the basis of alleged acceptance of the
final report in the criminal case has absolutely no merit.
It is
to be noted that in pursuance of the order passed on 27.9.1999 by the High
Court in CWJC No.8939 of 1999, the Chief Engineer decided the matter holding
that the petitioner had exceeded the contracted load and had also committed
theft of electricity and consequently assessment of compensatory amount had to
be done in accordance with Clause 16.9 of the Tariff. In terms of the order of
the Chief Engineer the bill dated 29.10.1999 was prepared which was challenged
by the petitioner by filing the writ petition before the High Court under
Article 226 of the Constitution. The High Court was not hearing an appeal against
the decision of the Chief Engineer. The scope of inquiry in such a matter is a
limited one. We would like to quote here what was said by Venkatachaliah, J. in
State of U.P. & Ors. v. Maharaja Dharmander Prasad Singh, AIR 1989 SC 997 (para
28), which reads as under :
"However,
Judicial review under Article 226 cannot be converted into appeal. Judicial
review is directed, not against the decision, but is confined to the
examination of the decision making process. In Chief Constable of the North
Wales Police v. Evans, (1982) 1 W.L.R. 1155 refers to the merits-legality
distinction in judicial review. Lord Hailsham said:
"The
purpose of judicial review is to ensure that the individual receives fair
treatment, and not to ensure that the authority, after according fair
treatment, reaches on a matter which it is authorised by law to decide for
itself a conclusion which is correct in the eyes of the Court." Lord Brightman
observed:
"Judicial
review, as the words imply, is not an appeal from a decision, but a review of
the manner in which the decision was made.." And held that it would be an
error to think:
"..that
the Court sits in judgment not only on the correctness of the decision making
process but also on the correctness of the decision itself".
When
the issue raised in judicial review is whether a decision is vitiated by taking
into account irrelevant, or neglecting to take into account of relevant factors
or is so manifestly unreasonable that no reasonable authority entrusted with
the power in question could reasonably have made such a decision, the judicial
review of the decision-making process includes examination, as a matter of law,
of the relevance of the factors. .." In Apparel Export Promotion Council
v. A.K. Chopra, JT 1999 (1) SC 61, Chief Justice Anand held as under :
"Judicial
Review, not being an appeal from a decision, but a review of the manner in
which the decision was arrived at, the Court while exercising the power of
Judicial Review must remain conscious of the fact that if the decision has been
arrived at by the Administrative Authority after following the principles
established by law and the rules of natural justice and the individual has
received a fair treatment to meet the case against him, the Court cannot
substitute its judgment for that of the Administrative Authority on a matter
which fell squarely within the sphere of jurisdiction of that authority."
There is no dispute that the Chief Engineer issued notice to the petitioner
mentioning all the relevant facts to which the petitioner gave a reply. The
petitioner was also afforded an opportunity of hearing and it appeared through
a counsel, who made submissions on two days and thereafter the Chief Engineer
passed the order. As discussed earlier, the Chief Engineer has taken into consideration
relevant factors and the findings recorded by him are clearly borne out from
the material available before him. It cannot be said that the order passed by
him is unreasonable or perverse in any manner. The High Court therefore rightly
took the view that the order passed by the Chief Engineer that the compensatory
bill is to be prepared in accordance with Clause 16.9 of the Tariff could not
be interfered with in a writ petition under Article 226 of the Constitution.
The
Bihar State Electricity Board feels aggrieved by that part of the judgment and
order of the Division Bench of the High Court by which it has been held that
the surcharge cannot be levied at thrice the rate per unit and has accordingly
filed Civil Appeal No.8395 of 2002. Shri V.R. Reddy, learned senior counsel for
the Electricity Board has submitted that the cost of a unit of electricity is
not fixed and on the contrary it is dependent upon the fuel surcharge. The
formula for calculating the fuel surcharge is a long and complicated one and is
given in Clause 16.10.3 of the Tariff. A host of factors have to be taken into
consideration in calculating the fuel surcharge and they depend upon many
variables. Shri Reddy has submitted that since the surcharge has necessarily to
be taken into consideration and has to be added in the cost of electricity and,
therefore, in accordance with part (III) of Clause 16.9 of the Tariff, it
should also be assessed at three times the rate per unit. We are unable to
accept the contention raised. Clauses 16.9 and 16.10.3 are separate and
distinct clauses in the Tariff. Clause 16.9 lays down the formula for
calculating the value of the electrical energy abstracted or consumed by a
consumer by exceeding the contracted load or by creating obstruction in running
of meter. Part (III) of this clause deals with method of charging the assessed
units and sub-para (a) thereof lays down that the consumption so assessed shall
be charged at thrice the rate per unit of the Tariff applicable to the consumer
excluding the consumption recorded by the meter and the latter shall be charged
at the appropriate Tariff rates.
Clause
16.10.3 is a separate clause which deals with fuel surcharge and it nowhere lays
down that this additional surcharge will also be levied at thrice the rate per
unit of the tariff. The two clauses namely 16.9 and 16.10.3 have to be read
separately and there being no specific provision for assessing the fuel
surcharge at thrice the rate per unit, it is not possible to hold that in such
a case the fuel surcharge should also be charged at thrice the rate per unit.
We
are, therefore, of the opinion that the view taken by the High Court is
perfectly correct and calls for no interference. In the result, both the
appeals lack merit and are hereby dismissed. No costs.
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