RISDICTION Criminal Appeal No 47 of 1992
From the Judgment and Order dated 131481991 of the Bombay High Court in Crl
WPNo 597 of 1991
WITH Writ Petition CRL No 1247 of 1991
238 Under Article 32 of the Constitution of India Dr YS Chitale and VB Joshi for the appellantsPetitioners
Altaf Ahmed Addl
Solicitor General SM Jadhav and AS Bhasme for the Respondents
The Judgment of the Court was delivered by Dr AS ANAND J
Leave is granted in SLPCrl No 3227 of 1991
Writ Petition No 1247 of 1991 filed under Article 32 of the Constitution of India is also taken up for disposal along with the aforesaid appeal which is directed against the judgment of the Division Bench of the Bombay High Court in Criminal Writ Petition No 597 of 1991 since it is the same order of detention which has been called in question in both the cases
Both the appeal and the Writ Petition have been filed by the wife of on Harvinder Singh  Kukku who has been detained vide order of detention dated 26th February 1991 issued under the provisions of Section 31n of the Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers and Drug Offenders Act 1981 hereinafter referred to as the Act  The appellant had questioned the detention of her husband through Criminal Writ Petition No 597 of 1991 before the Bombay High Court on carious grounds
The High Court however did not find any merit in the challenge and being of the opinion that there was no infirmity in the order of detention dismissed the Writ Petition
Appellant has filed an appeal by Special Leave against the High Court judgment and has also questioned the order of detention through a petition under Article 32 of the Constitution
The facts leading to the detention of the detenu as reflected in the grounds of detention are as follows 3
The Police personnel attached to Matunga Police Station where maintaining a watch on vehicles passing near the fish market with a view to check transportation of illicit liquor
On 9th September 1991 a black Fiat Car bearing registration No BLD 1674 was seen coming from the direction of Chembur at about 0845 hrs
The police party signalled the driver to a stop
Instead of stopping the car the detenu who was driving the car accelerated the car and drove it straight towards the police party that they were likely to be run over and to save themselves they jumped on the foot path
While so driving the car towards the police party the detenu also hurled abuses at them and shouted that he would kill them
The detenu kept driving the car recklessly 239 and then dashed against a pedestrian causing him injury and even at that time instead of stopping the car shouted that whosoever would come in his way would be killed
The detenu kept on driving the car recklessly and dashed the car against a stationery taxi damaging it
As a result of the collision the car came to a stop
As soon as the car stopped the police party with a view to apprehend the detenu and the other persons sitting in the car rushed towards them
The detenu and two other persons sitting inside the car jumped out and escaped
A police case came to be registered with the Matunga Police Station against the detenu and two unknown persons for offences under Section 307 324 read with Section 34 of the Indian Penal Code
The detenu made himself scarce and could not be immediately arrested
He was eventually traced and arrested on 13th September 1990 when he made a statement admitting that he was engaged in transporting illicit liquor on 991990 and also admitted his escape after hitting the pedestrian and the stationery taxi after driving the car towards the police party which signalled to stop him
The detenu was produced before the Metropolitan Magistrate on 1491990
and was released on bail on the condition that he should attend the police station between 600 to 800 pm everyday till 2491990
However the detenu failed to carry out the condition which led to the cancellation of his bail on 2491990 and he was taken into custody
The detenu then moved the Sessions Court against cancellation of his bail
His application was accepted and he was admitted to bail
The motor car of the detenubearing registration No BLD 1674 was seized by the police and from the dicky of the car 12 rubber tubes and from the rear seat of the car 13 rubber tubes each containing about 40 litres of illicit liquor were recovered
Samples of the seized illicit liquor were sent to the Chemical Analyst whose report dated 10th of January 1991 indicated that the samples contained ethyl alcohol 34 vv in water
During the investigation of the case the police recorded statements of four witnesses who were however willing to make statements only on the condition of anonymity fearing retaliation from the detenu in case they deposed against him
Keeping in view the activities of the detenu and the fact that he had been enlarged on bail the detaining authority on being satisfied that unless an order of detention was made against the detenu he was likely to indulge in activities prejudicial to the maintenance of public order  in future also made an order of detention on 26th February 1991
The grounds of detention were served on the detenu
The order of the detention was confirmed by the State Government after considering the report of the Advisory Board constituted under 240 Section 121 of the Act
The order of detention was questioned before the High Court as already noticed through Criminal Writ Petition No 597 of 1991 unsuccessfully
Two basic arguments have been raised by Dr Chitale before us to question the order of detention
The thrust of the first argument is that the activities of the detenu could be said to be prejudicial only to the maintenance of law and order and not prejudicial to the maintenance of public Order
Learned counsel stressed that the activities which had been attributed to the detenu howsoever reprehensible they may be had no impact on the general members of the community and therefore could not be said to disturb the even tempo of the society and as such his detention for acting in a manner prejudicial to public order  was unjustified
The second argument of the learned counsel is based on the proviso to Section 32 of the Act which according to the learned counsel prohibited the State Government to make an order of detention in the first instance exceeding three months and since the order of detention in the instant case was for a period exceeding three months it was categorised as bad in law and invalid
No other contention was pressed
Public Order or Law and Order are two different and distinct concepts and there is abundance of authority of this Court drawing a clear distinction between the two
With a view to determining the validity or otherwise of the order of detention it would be necessary to notice the difference between the two concepts
In Ram Manohar Lohia vs State of Bihar  speaking for the majority Hidayatullah J pointed out the distinction in the following words One has to imagine three concentric circles
Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State
It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State
In Arun Ghosh vs State of West Bengal 1970 1SCC 98 again Hidayatullah J speaking for the Court pointed out that what in a given 241 situation may be a matter covered by law and order on account of its impact on the society may really turn out to be one of public order 
It was observed Take the case of assault on girls
A guest at a hotel may kiss or make advances to half a dozen chambermaids
He may annoy them and also the management but he does not cause disturbance of public order
He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only
Take another case of a man who molests women in lonely places
As a result of his activities girls going to colleges and schools are in constant danger and fear
Women going for their ordinary business are afraid of being waylaid and assaulted
The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast difference
The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order
He disturbs the society and the community
His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies
 p100 9
A Constitution Bench in Madhu Limaye vs Ved Murti again dealt with the question and it was observed In our judgment the expression in the interest of public order  in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within order publique as described but also certain acts which disturb public transquillity or are breaches of the peace
It is not necessary to give the expression a narrow meaning because as has been observed the expression in the interest of public order  is very wide p 756 10
In Kanu Biswas vs State of West Bengal 1972 3 SCC p756 831 this Court opined The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society 
Public order is what the French 242 call ordre publique and is something more than ordinary maintenance of law and order
The test to be adopted in determining whether an act affects law and order or public order as laid down in the above case is Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of society undisturbed p 834 11
In Ashok Kumar vs Delhi Administration this Court re examined the question and observed The true distinction between the areas of public order  and law and order  lies not in the nature of quality of the act but in the degree and extent of its reach upon society
The distinction between the two concepts of law and order  and public order  is a fine one but this does not mean that there can be no overlapping
Acts similar in nature but committed in different contexts and circumstances might cause different reactions
In one case it might affect specific individuals only and therefore touch the problem of law and order while in another it might affect public order
The act by itself therefore is not determinant of its own gravity
It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order pp 409 10 12
In Subhash Bhandari vs District Magistrate Lucknow   a Division Bench of this Court has held A solitary act of omission or commission can be taken into consideration for being subjectively satisfied by the detaining authority to pass an order of detention if the reach effect and potentiality of the act is such that it disturbs public tranquility by creating terror and panic in the society or a considerable number of the people in a specified locality where the act is alleged to have been committed
Thus it is the degree and extent of the reach of the act upon the society which is vital for considering the question whether a man has committed only a breach of law and order or has acted in a manner likely to cause disturbance to public order pp 686 87 243 13
It is not necessary to multiply the authorities on this point
From the law laid by this Court as noticed above it follows that it is the degree and extent of the each of the objectionable activity upon the society which is vital for considering the question whether a man has committed only a breach of law and order  or has acted in a manner likely to cause disturbance to public order 
It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of public order 
Whenever an order of detention is questioned the courts apply these tests to find out whether the objectionable activities upon which the order of detention is grounded fall under the classification of being prejudicial to public order or belong to the category of being prejudicial only to law and order 
An order of detention under the Act would be valid if the activities of a detenu affect public order  but would not be so where the same affect only the maintenance of law and order 
Facts of each case have therefore to be carefully scrutinised to test the validity of an order of detention
Dr Chitale did not dispute that if the activities of the detenu have the potential of disturbing the even tempo of the society or community those activities would be prejudicial to maintenance of public order  he however relied upon certain judgment to urge that bootlegging activity of the detenu in the instant case could not affect public tranquillity and did not have any potential of affecting public order to justify his detention
Reliance was placed on Om Prakash vs Commissioner of Police  Ors 1989 Supp
2 SCC 576 Rashidmiya vs Police Commissioner Ahmedabad  Anr 1989 3 SCC 321 and Piyush Kantilal Mehta vs Commissioner of Police Ahmedabad City and Anr 1989 Supp 1 SCC 322 and it was urged that in these cases an activity of bootlegging was not held to fall within the mischief of being prejudicial to public order 
Indeed in Piyush Kantilal Mehta Om Prakash and Rashidmiya cases supra the Court found that the activities of the detenu a bootlegger in those cases as detailed in the grounds of detention were of a general and vague nature and those activities did not adversely affect the maintenance of public order  under Section 34 of the Gujarat Prevention of Anti Social Activities  Act 1985
The Bench in Rashidmiya and Om Prakash s cases supra relied upon the judgment in Piyush Kantilal Mehta s case and on the facts of those cases quashed the order of detention
In Piyush Kantilal Mehta s case supra the allegations in the ground of detention were that the detenu was a bootlegger who was indulging in the 244 sale of foreign liquor and that he and his associates were also using force and violence and beating innocent citizens creating a sense of terror
The detenu was caught possessing English liquor with foreign markings as well as foreign liquor
The Court found that the detenu was only a bootlegger and he could not be preventively detained under the provisions of the Gujarat Prevention of Anti Social Activities  Act 1985 unless as laid down in sub Section 4 of Section 3 of that Act his activities as a bootlegger had the potential of affecting adversely or were likely to affect adversely the maintenance of public order  and on the peculiar facts of the case it was found that the alleged activities of the detenu did not affect public order  but created only a law and order problem
Dr Chitale then placed reliance on State of UP vs Hari Shankar Tewari   Ahmedhussain Shaikhhussain vs Commissioner of Police Ahmedabad and Anr   T Devaki vs Government of Tamil Nadu  Ors   Ashok Kumar vs Delhi Administration and Ors
  but none of these judgments lay down tests different than the ones which we have culled out from the judgments of this court referred to earlier
Those cases were decided on their peculiar facts
The courts were very much alive to the conceptual difference between activities prejudicial to law and order and those prejudicial to public order and since on facts it was found that the activities of the detenu were not prejudicial to public order  the orders of detention were quashed
Crime is a revolt against the whole society and an attack on the civilization of the day
Order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the community
The distinction between breach of law and order  and disturbance of public order  is one of degree and the extent of reach of the activity in question upon the society
In their essential quality the activities which affects law and order  and those which disturb public order  may not be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference
In each case therefore the courts have to see the length magnitude and intensity of questionable activities of a person to find out whether his activities are prejudicial to maintenance of public order  or only law and order 
There is no gain saying that in the present state of law a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt
Where the prosecution is unable to lead evidence to prove its case the case fails though that failure does not imply that no crime had been committed
Where the 245 prosecution case fails because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused obviously the crime would go unpunished and the criminal would be encouraged
In the ultimate analysis it is the society which suffers
Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it
The objectionable activities of a detenu have therefore to be judged in the totality of the circumstances to find out whether those activities have any prejudicial affect on the society as a whole or not
If the society and not only an individual suffers on account of the questionable activities of a person then those activities are prejudicial to the maintenance of public order  and are not merely prejudicial to the maintenance of law and order 
The Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers and Drug Offenders Act 1981 was enacted to provide for preventive detention of slumlords bootleggers and drug offenders for preventing their dangerous activities prejudicial to the maintenance of public order 
Section 2a defines the meaning of the expression acting in any manner prejudicial to the maintenance of public order and reads as follows acting in any manner prejudicial to the maintenance of public order means i in the case of a slumlord when he is engaged or is making preparations for engaging in any of his activities as a slumlord which affect adversely or are likely to affect adversely the maintenance of public order ii in the case of a bootlegger when he is engaged or is making preparations for engaging in any of his activities as a bootlegger which affect adversely or are likely to affect adversely the maintenance of public order iii in the case of drug offender when he is engaged or is making preparations for engaging in any of his activities as drug offender which affect adversely or are likely to affect adversely the maintenance of public order Explanation For the purpose of this clause a public order shall be deemed to have been affected adversely or shall be deemed 246 likely to be affected adversely inter alia if any of the activities of any of the persons referred to in this clause directly or indirectly is causing or calculated to cause any harm danger or alarm of a feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life or public health 20
The explanation to Section 2a supra brings into effect a legal fiction as to the adverse affect on public order 
It provides that if any of the activities of a person referred to in clause  i iii  of Section 2a directly or indirectly causes or is calculated to cause any harm danger or alarm or a feeling of insecurity among the general public or any Section thereof or a grave or a wide spread danger to life or public health then public order shall be deemed to have been adversely affected
Thus it is the fall out of the activity of the bootlegger which determines whether public order  has been affected within the meaning of this deeming provision or not
This legislative intent has to be kept in view while dealing with detentions under the Act
Let us now consider the facts of the instant case
The substance of the grounds on which detention has been ordered is that the detenu is bootlegger and in furtherance of his activities and to escape from the clutches of law he even tried to run over by his speeding vehicle the police party which tried to signal him to a stop exhorting all the time that he would kill anyone who would come in his way
He continued to drive in a reckless speed and dashed against a pedestrian causing injuries to him where again he had exhorted that anyone who would come in his way would meet his death
Four witnesses ABCD who agreed to give statements to the police on conditions of anonymity clearly stated that they would not depose against the detenu for fear of retaliation as the detenu had threatened to do away with anyone who would depose against him
The evidence of these witnesses show that the detenu was indulging in transporting of illicit liquor and distributing the same in the locality and was keeping arms with him while transporting liquor
The activities of the detenue therefore were not merely bootlegging as was the position in Om Prakash Rashidmiya and Piyush Kantilal Mehta s cases supra but went further to adversely affect the even tempo of the society by creating a feeling of insecurity among those who were likely to depose against him as also the law enforcement agencies
The fear psychosis created by the detenu in the witnesses was aimed at letting the crime go unpunished which has the potential of the society and not merely some individual to suffer
The activities of the detenu therefore squarely fall within the deeming provision enacted in the explanation of Section 2a of the Act and it therefore follows as a logical consequence that the activities of 247 the detenu were not merely prejudicial to the maintenance of law and order  but were prejudicial to the maintenance of public order
The first argument raised by Dr Chitale against the order of detention therefore fails
Coming now to the second argument of Dr Chitale to the effect that proviso to Section 32 of the Act prohibited the State Government to make an order of detention in the first instance exceeding three months and since the order of detention in the instant case had been made for a period exceeding three months it was vitiated
Section 3 reads as follows Power to make orders detaining certain persons
1 The State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it is necessary so to do make an order directing that such person is detained
2 If having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police the State Government is satisfied that it is necessary so to do it may by order in writing direct that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also if satisfied as provided in sub section 1 exercise the powers conferred by the said sub section Provided that the period specified in the order made by the State Government under this sub section shall not in the first instance exceed three months but the State Government may if satisfied as aforesaid that it is necessary so to do amend such order to extend such period from time to time by any period not exceeding three months at any one time
3 When any order is made under this section by an officer mentioned in sub section 2 he shall forthwith report that fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government 248 A plain reading of the Section shows that the State Government under Section 31 if satisfied with respect to any person that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order it is necessary so to do  make an order of detention against the person concerned
Sub section 2 of Section 3 deals with the delegation of powers by the State Government and provides that if the State Government is satisfied having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police it is necessary to empower District Magistrate or the Commissioner of Police as the case may be to exercise the powers of the State Government to order detention of a person as provided by sub Section 1 then the State Government may by an order in writing direct that during such period as may be specified in the order the District Magistrate or the Commissioner of Police may also if satisfied as provided in sub section 1 exercise the powers of the State Government as conferred by sub Section 1
The proviso to sub Section 2 only lays down that the period of delegation of powers specified in the order to be made by the State Government under sub section 2 delegating to the District Magistrate or the Commissioner of Police the powers under sub section 1 shall not in the first instance exceed three months
The proviso therefore has nothing to do with the period of detention of a detenu
The maximum period of detention is prescribed under Section 13 of the Act which lays down that a person may be detained in pursuance of any detention order made under the Act which has been confirmed under Section 12 of the Act
It is therefore futile to contend that the order of detention in the instant case was vitiated because it was for a period of more than three months
The second argument therefore also fails
We are in the facts and circumstances of the case satisfied that the Division Bench of the Bombay High Court rightly dismissed the Criminal Writ Petition No 597 of 1991 and that order does not call for any interference
The Appeal fails and is dismissed
Writ Petition No 1247 of 1991 also fails and is hereby dismissed since the order of detention does not suffer from any infirmity
GN AppealPetition dismissed


Summary:
The appellant company set up a caustic soda industry at Renukoot involving the use of electricity as the main raw material
On 30963 it entered into a contract with the State of Uttar Pradesh for supply of electricity for the period of 25 years from 1464 to the extent of 65 NW from the Rihand Hydel station at a fixed rate of 25 paise per unit and an additional supply of 15 NW from an inter connection at the rate of 5 NP per unit
The terms of the contract provided that the transmission and distribution losses were to be borne by the company and that the rates could be raised after sixteen years but any enhancement in rates was not to exceed 10 per cent of the rates agreed upon
Subsequently the UP Government enacted the Electricity Laws Uttar Pradesh Amendment Act 1983 which came into force from 152 2051983
Section 7 of the said Act amended section 60 of the Electricity Supply Act 1948 by inserting sub section 3 to 5 with retrospective effect from April 1 1965
The Amended Act enabled the State and the Board to modify the rates of supply of Electricity to appellant under the contract of 30963
Simultaneously the Parliament also amended Section 59 of the Electricity Supply Act by the Act 18 of 1983 enabling the Electricity Board to fix the tariff in such a way so as to build up a statutory surplus fixed by the State Government
On the passing of the Amendment Act the Electricity Board informed the appellant company that the rates were proposed to be revised and later it informed the appellant company that on 28983 the State Government by its Gazette Notification dated 29th October 1982 had approved the levy of HV 2 rates ie uniform tariff applicable to Bulk power  consumers in substitution of the rates mentioned in the agreement of 30th September 1963
The effect of the revision was to oblige the appellant company to pay 5771 paise per unit for 1983 84 and 6160 paise per unit for 1984 85
Accordingly supplementary bills were raised demanding Rs 307 crores from the appellant company
The appellant filed a writ petition in the High Court of Allahabad assailing the Validity of section 7 of the amending Act and the right of the Board to enhance the rates
By its order dated 2487 the High Court allowed the writ petition and quashed the approval dated 28983 given by the State Government to the new rates and the consequential demands of the Electricity Board but left it to the Board and State to fix revised rates afresh by directing the respondents 1 not to charge the uniform tariff rate for the period beginning from 20th May 1983 till the rates were fixed in accordance with section 605 a and ii that the rates applicable to the appellants should be determined having regard to the individual circumstances of the appellant
The Electricity Board and the State Government preferred an appeal to this Court
Aggrieved by the fact that in applying the HV 2 rates the Board and the State had not taken into account the special factors relevant to the supplies made to it the appellant also filed an appeal in this Court
In the meantime pursuant to the directions of the High Court the Board fixed the revised rates on 28388 for the supply from 20th May 1983 which were much higher than the HV 2 rates fixed earlier and 153 quashed by the High Court
The appeals came to be heard by this Court on April 10 1991 when this Court directed that the appellant should make a representation to the State Electricity Board setting out the individual factors which should be taken into account in fixing the rates applicable to them within the meaning of section 605 a of the 1948 Act and that the State Government should reconsider the fixation after considering the recommendations made by the Board as well as the representations of the appellant
Accordingly the State reconsidered the matter and by its order dated 31892 approved the rates fixed by the State Government on 28388
The appellant challenged the validity of the rates fixed contending that i the fixation of rates as on 3181992 was not valid because a the respondents have not complied with this court s directions dated 1041991 as they have neither disclosed the factors based on which the rates were revised in March 1988 nor indicated the monetary incidence or impact of the factors taken into account b in the process of refixation of the rates there was no genuine exercise to consider relevant factors in determining the rate under section 60 5 a c that the Board had not set out anywhere the precise manner in which the rates recommended by them were arrived at ii Section 60 cannot be interpreted so as to give power to the Board to fix rates retrospectively because a such an interpretation precludes the Board and the State from revising the rates prospectively b if the power is held exercisable more than once it will permit successive revisions each superseding the earlier one a position that could lead to harassment c that the Hindi version of the Amendment Act is differently worded and does not contain the words for the first time found in the English version and in case of a conflicting version between Hindi and English version the Hindi text should be the key to find out the true intention of the Legislature and iii in view of a facts a that the company established its industry in a backward area at the request of the State and in public interest b the transmission and distribution losses are borne by the appellant and c electricity is one of the raw materials needed for its industry the appellant should be charged less than the HV 2 rates
On behalf of the Electricity Board it was contended that the 154 demand of rates higher than HV 2 rates was justified because a the Company has been getting substantial supplies of electricity at nominal rates from 1963 to 1983 b The Board has incurred heavy losses over the years by supplying electricity at concessional rates and c there was a necessity to build up a statutory surplus prescribed by section 59
Allowing the Company s appeal in part and dismissing the Electricity Board s appeal this Court HELD 1The fixation of revised rates is not vitiated
173 E 2
Section 60 does not require the Board or the State Government to explain each and every step in its calculation
All that the Electricity Board has to do is to take into consideration the factors relevant under section 605 and propose rates for fixation to the State Government
It is in order to ensure that these recommendations take into account all relevant factors that an opportunity has been provided to the consumer to satisfy the Board as well as the State Government that the fixation has taken into account certain relevant factors
Therefore the rate revision proceedings were not vitiated for the reason that the Board has not set out the precise manner in which the rates recommended by them were arrived at
172 D E 172 C 21 Apart from the general factors which have been taken into account in fixing the general tariff rates the Board has in making its recommendations taken into account the purpose for which supply was required by the appellant along with the factor of recurring losses incurred by the Board year after year and its statutory requirements to maintain a minimum surplus of 3 per cent as required under section 59 of the Supply Act 1948
173 D 22 The rates recommended by the State Electricity Board and approved by the State Government were within the knowledge of the appellant company
The appellant company filed its representation
After considering the representation the Board made its recommendations to the State Government and a copy of the recommendations were also available to the appellant
The appellant had full opportunity to meet the various points set out in the recommendations of the Board
The comments of both the Board and the Appellant were taken into account by the State Government before finally approving of the rates proposed by the Board
Therefore the appellant company had full opportunity to place all its special feature before the Board and the 155 State Government
171H 172AB 173E 23 If one compares the two provisions viz sections 49 and 60 one will find that most of the elements are common to the two provisions
Both under section 49 and section 60 the authorities have to take into account the geographical position of any area the nature of supply and purpose for which supply is required and any other relevant factor
The only difference between the two provisions is that since section 49 deals with a general fixation while section 605 deals with a fixation for a particular individual case there may be some special factors to be taken into account which may or may not be germane while fixing the general tariff under section 49
172H 173 A Indian Aluminium Company Ltd vs Kerala State Electricity Board   cited
A retrospective effect to the revision of rates is clearly envisaged by section 60
One can easily conceive a weighty reason for saying so
If the section were interpreted as conferring a power of revision only prospectively a consumer affected can easily frustrate the effect of the provision by initiating proceedings seeking an injunction restraining the Board and thus getting the revision deferred indefinitely
Or again the revision of rates even if effected promptly by the Board and State may prove infructuous for one reason or another
Therefore it would be a very impractical interpretation of the section to say that the revision of rates can only be prospective
174E G 31 The mandate of section 60 is only that the rates to be charged on supplies for which payment becomes due after 20883 shall be as fixed by the Board
The powers of the Board in fixing the rates including the dates from which they will be operative are not restricted in any manner
The Board is at complete liberty to fix different rates from different dates and that scheme of fixation will be read with the contract
Only the Board cannot revise the rates in respect of supplies for which payment under the contract fell due before the Amendment Act came into force
175 B C 32 The power under section 60 is exercisable more than once
However while making a subsequent revision the authorities will not normally tamper with an earlier revision or alter the dates of effectiveness fixed for the earlier revision without a valid reason to do so
If this is done it will be open to a court to examine the basis thereof and 156 sustain it only where the earlier fixation was based on an error or misconception or the like and called for modification
175D E 33 Although the Hindi version of the Amendment Act is differently worded and does not contain the words for the first time found in the English version the Hindi version does not really alter the position actually it is the presence of the words for the first time in the English version that create ambiguity
Without these words the clause clearly provides that all supply of electricity for which payment is to be made after 20583 ie coming into force of the Amendment Act will be charged at the rates to be fixed by the Board
Therefore the fixation by the Board of rates from 20583 and at different rates for different period of time is unexceptionable
175F H 176 A Mata Badal Pandey vs Board of Revenue 1974 UPTC 570 referred to 4
There are no obstacles statutory or theoretical standing in the way of the Board fixing rates for the company which will be higher than the rates applicable to bulk consumers
The provision in section 605a is intended to enable the Board and State to cut off the shackles cast by an ancient contract entered into at a time when conditions were totally different
It confers an absolute and unrestricted enabling power to revise the rates in an appropriate manner
174 A While revising rates the only limitation which the statute requires the authorities to keep in mind are the factors mentioned in the section
Whether the revised rates for the consumer governed earlier by the contract should be higher or lower than or equal to the tariff rates would depend on a large number of considerations in particular the basis on which and the point of time at which those general rates were fixed
In principle it is quite conceivable that in an appropriate case a consideration of the relevant factors may justify even a rate higher than the general tariff rates intended for the particular category of consumers
174B D 41 However there is no material to justify any departure from the HV 2 rates in the case of the appellant
The special circumstances pleaded by the appellant company have lost their importance with the passage of time
The conditions that prevailed in 1963 are not valid and the appellant has had the benefit of concessional rates for twenty years
The consideration that electricity is a raw material in the assesee s 157 business is again irrelevant for it can mean nothing more than that the appellant needs substantial quantities of the energy and there is no reason why it should not pay for it at the normal market rates
Therefore the appellant has no valid justification for staking a claim to less than the HV 2 rates
177B D 42 Equally the authorities have no case to raise the rates beyond the HV 2 rates
The huge losses that the Board has been incurring and the statutory justification for escalation in the rates keeping in view the necessity to build up a surplus is an aspect of working which should affect all the consumers equally
May be the Board can in appropriate circumstances seek to make up for a part of the losses by hiking up the rates to one particular category of consumers but that would not be justified here as the transmission and distribution losses in respect of the supply to the appellant are borne by it and in the absence of some special vital reason it would not be equitable to fix the rates of supply to the appellant above the rates applicable to other HV 2 consumers
Therefore there is no justification to charge more than HV 2 rates from the appellant
177EG 178 B 43 The determination of 1988 and 1991 are quashed
The State Electricity Board is directed to charge the appellant Company from 20583 to 31389 at the HV 2 rates applicable to other consumers
178 B