Civil Appeal Nos
1306 1310 1370 1380 and 1422 to 1424 of 1975
Appeals by special leave from the judgment and orders dated the 9th July 1975 of the Punjab  Haryana High Court at Chandigarh in Civil Writ Petitions Nos 733 595 725 681 720 723 726 728 777 780 781 833 892 884 885 and 887 of 1975 respectively
M C Bhandare In 1306 and Mrs section Bhandare for the appellants in CAs
1306 1370 1980 and 1422 1424 of 1975
F section Nariman A K Srivastava and B P Singh for the appellants in CA 1310
A K Sen In CA 1306 Dr L M Singhvi In 1310 K K Jain Bishamber Lal section K Gupta and P Dayal for the Respondent No 2 in all the appeals
L N Sinha Sol
General In CAs
1306 and 1310 and R N Sachthey for Respondent No 1 in all the appeals
Several connected Writ Petitions were disposed of by the High Court of Punjab  Haryarna by a common Judgment and this judgment will govern all the cases which had been heard together by us
Civil Appeal No 13061975 is by Ms Northern India Iron  Steel Co Ltd and arises out of Writ Petition No 7331975
We may state a few necessary facts of this case those of the other cases being more or less similar
The appellant owns a factory and manufactures alloy steel and steel castings
It is a large consumer of electricity supplied by the Board
As per the contract between the appellant and the board be total connected load of the installation in question is 8687 649 Kilowatts and its contract demand is the same
At the ratio of one KV to 085 KW the corresponding KV Of the contract demand works to 10221 KV
The appellant was allotted 106590 units on daily basis as its power quota by the Board
There was shortage of electric energy in the State of Haryana
The State Government there are issued orders and directions for maintaining the supply and securing the equitable distribution of the energy
Orders were issued by the State Government under section 679 228 of the Indian Electricity Act 1910 hereinafter called the 1910 A Act restricting considerably the supply of electric energy by the Board lo the large industrial consumers as a result of which power cut was introduced
It is not necessary to give the facts and figures of the amount of power cut suffice it to say that at the relevant time there were substantial power cuts and the appellant was not able to get supply of energy according to demand as per the quantity mentioned in the contract
In these circumstances a dispute arose between the parties as to whether the Board was entitled to get any demand charge if so to what extent and whether the State could demand any duty on such charge
Under Section 49 of the hereinafter called the 1948 Act 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 of course the power of the Board is subject to the other provisions of the Act and regulations if any made in this behalf There are two well known systems of tariffs one is the flat rate system and the other is known as the two part tariff system
Under the former a flat rate is charged on unit of energy consumed
The letter system is meant for big consumers of electricity and it comprised of 1 demand charges to cover investment installation and the standing charges to some extent and 2 energy charges for the actual amount of energy consumed
The Board has framed in exercise of its power under section 49 of the 1948 Act certain terms and conditions and procedure in regard to supply of electricity to its consumers
They are applicable in the cases of the appellants also
Demand Charge has been defined in clause 1h thus Demand charge shall mean the amount chargeable per month in respect of Board s readiness to serve the con summer irrespective of whether he consumes any energy or not and is based upon the connected load the maximum demand or the contract demand as the case may be and as prescribed in the relevant schedule of tariff
And in sub clause 1 Energy Charge has been defined thus Energy charge shall mean the charge for energy actually taken by the consumer and is applicable to the units consumed by him in any month
This is in addition to any demand charge if applicable
A schedule of tariff for supply of energy which is amended from time to time has been framed by the Board
Such schedule of tariff for steel furnace power supply mentions in item 2 the character of service
Clause 3 provides for tariff and clause 4 deals with the demand assessment
The two part tariff mentioned in clause 3 in case of the appellant was Demand Charges Rs 12 per KVA per month PLUS Energy charges Rs 700 passe per Kwh
There was some surcharge on the above rates
The relevant Sub clauses of clause 4 ie Demand Assessment may now be quoted here 680 a The demand for any month shall be defined as the highest average load measured in Kilovolt amperes during any consecutive minutes period of the month
b The monthly demand charges shall be based on 1 the actual maximum demand during the month or ii 65 of the contract demand or iii 75 of the highest maximum demand during the preceding eleven months or iv 100 KVA whichever is the highest
For the first 11 months from the commencement of Supply alternative iii shall not be applicable
c The contract demand means the maximum KW KVA for the supply of which the Board undertakes to provide facilities from time to time
NOTE In case the consumer exceeds his contract demand in any month by more than 712 a surcharge of 25  will be levied on the SOPMonthly minimum charges industrial Factory lighting and colony supply
d If in any case the maximum demand is being measured in KW the same shall be converted into KVA by the use of actual power factor and KVA tariff applied for working out the demand charges
e In case the supply has been given on restricted hours basis then a reduction of 30 in demand charges will be given if supply is for 12 hours or less occasional break downs or shut downs if any on the part of the supplier shall however not entitle a consumer to any reductions
f Force Majeure In the event of lock out fire or and other circumstances considered by the supplier to be beyond the control of the consumer the consumer shall be entitled to a proportionate reduction of demand chargesminimum charges provided he serves at least 3 days notice on the supplier for shut down of not less than 15 days duration
It appears from the judgment of the High Court that some reduction perhaps upto 60 was given by the Board in the demand charges because of the inability of the Board to supply energy as per the requirement of the appellant consumers due to power cuts imposed by the Government
But the appellant seems to have taken the stand that either there should be no demand charge at all when the Board was not in a position to supply electric energy as per is requirement or there should be a proportionate reduction of the demand charge
Hence it filed a Writ petition
The High Court has noted the reduction made by the Board and has held that the Board is entitled to the demand charge
It has however not been 681 decided as to what should be the basis for and in what proportion the demand charges be reduced
The stand of the appellant as respects the charge of duty by the State Government under the Punjab Electricity Duty Act 1958 hereinafter called the Duty Act was that no duty could be levied on the demand charge
The High Court has repelled this contention
The two questions which fall our determination in these appeals are 1 Whether on the facts and in the circumstances of the cases the Board is entitled to claim any demand charge if so to what extent 2 Whether any duty is leviable on the demand charge if so to what extent  An argument was advanced before us in the first instance by counsel for the appellants with reference to the definition of the demand change in clause 1h of the terms and conditions of supply framed by the Board that since the Board was not ready to serve the consumer and the consumer was ready to consume maximum electric energy the former was not entitled to ask for any demand charge
This argument in the beginning was combated with equal force if not more on behalf of the Board and it was asserted that the Board was entitled to assess and claim the full demand charge as per clause 4 of the tariff irrespective of the fact whether it was in a position to supply the energy according to the demand of the consumer or not
Such an extreme stand on either side appeared to us a bit puzzling and leading to inequitable results
The difficulty was not easy to solve
If we were to hold that for the Board s inability to supply a fraction of the consumer s demand as per the contract it could claim only the energy charge and not the demand charge it would have been very hard and injurious to the Board and the consumer would have unjustifiably got the supply at a very cheap rate If on the other hand we were to say that the consumer was liable to pay the entire demand charge as per the method of assessment provided in clause 4 of the tariff even when for no fault of it it could get only a fraction of its demand fulfilled resulting in its not being able to run the industry to its full capacity it would be liable to pay a huge amount per month and this will not only be uneconomical but would seriously affect its economic structure
But we were happy to find that a just equitable and legal solution of the difficulty was provided during the course of the argument on either side and that is with reference to sub clause f of clause 4 of the tariff
It is therefore not necessary to resolve the extreme stand taken on either side
Under clause 4f the consumer is entitled to a proportionate reduction of demand charges in the event of lock out fire or any other circumstances considered by the supplier beyond the control of the 682 consumer that is to say if the consumer is not able to consume any part of the electric energy due to any circumstance beyond its control and which is considered by the Board to be so then it shall get a proportionate reduction in the demand charge
The circumstance of power cut which disabled the Board to give the full supply to the appellant because of the Government order under section 228 of the 1910 Act undoubtedly would be a circumstance which disabled the consumer from consuming electricity as per the contract
And this was circumstance which was beyond its control and could not be considered otherwise by the Board
It entitled the consumer to a proportionate reduction of the demand charges
This interpretation of subclause f of clause 4 of the tariff was accepted to be the correct legal and equitable interpretation on all hands
In our opinion it is so
In a circumstance like this it is plain the obligation of the consumer to serve at least 3 days notice on the supplier as per the latter part of sub clause f was not attracted as the requirement of notice was only in the case of shut down of not less than 15 days duration
We are therefore of the view that the inability of the Board to supply electric energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the consumer which prevented it from consuming electricity as per the contract and to the extent it wanted to consume
The monthly demand charge for a particular month will have to be assessed in accordance with sub clause b of clause 4 of the tariff and therefore from a proportionate reduction will have to be made as per sub clause f
We hope in the light of the judgment there will be no difficulty in working out the figures of the proportionate reduction in any of the cases and for any period
In case of any difference or dispute as to the quantum of the demand charge or the proportionate reduction parties will be at liberty to pursue their remedy as may be available to them in accordance with law
Coming to the question of duty we have no hesitation in an out right rejection of the extreme contention put forward on behalf of the appellants that no duty is leviable at all on the demand charge
But it is clear and this was fairly conceded to by the Solicitor General appearing for the State of Haryana that the amount of duty payable will be on the actual amount of demand charge realisable from the consumer after the proportionate reduction under clause 4f of the tariff
Section 3 of the Duty Act says that there shall be levied and paid to the State Government on the energy supplied by the Board to a consumer a duty to be called the electricity duty computed at the rates indicated in the various clauses of sub section 1 of section 3
The expression used in the various clauses is where the energy is supplied to a particular type of consumer then the rate of duty will be as specified therein
On the basis of the said expression the argument put forward on behalf of the appellant was that the duty could be levied only on the energy charges for the actual amount of energy 683 supplied
Such an argument is too obviously wrong to be accepted
Reading the clauses as a whole it would be seen that the duty is chargeable on the price of energy supplied in a month
The price of energy in a two part tariff system would mean and include the energy charge as also the demand charge
This is made further clear by the manner of calculation provided in Rule 3 of the Punjab Electricity Duty Rules 1958
Sub rule 1 says The duty under clause iii and iv of sub section 1 of section 3 of the Act shall be calculated on the price of the energy recoverable at the net rate of the Board which will include the demand charge when the Supply is governed by a two part tariff
 It is therefore manifest that the duty under the Duty Act is chargeable not only on the energy charge but also on the demand charge when the supply is governed by two part tariff and it is chargeable on the actual amount of demand charge realisable from the consumer For the reasons stated above we allow these appeals in part to the extent indicated above
In the circumstances we shall make no order as to costs in any of the appeals
PBR Appeals partly allowed


Summary:
The State Electricity Board had framed in exercise of its power under section 49 of the  certain terms and conditions and the procedure in regard to supply of electricity to its
consumers
For big consumers the system of tariff is the two part tariff system comprising of 1 Demand charge and ii Energy charge
A Demand charge means the amount chargeable per month in respect of the Electricity Board s readiness to serve the consumer irrespective of whether he consumes any energy or not and is based upon certain factors
Energy charge means the charge for energy actually taken by the consumer and is applicable to the units consumed by him in any Month
This was in addition to any demand charge if applicable
A schedule of tariff of energy was framed by the Board
4b mentions how the monthly demand charge shall be calculated and sub clause f of this clause states that in the event of lock out fire or any other circumstances considered by the supper to be beyond the control of the consumer the consumer shall be entitled to a proportionate reduction of demand chargesminimum charges
As a result of shortage of electricity the State Electricity Board considerably restricted the supply to large industrial concerns
Because of this the Board allowed some reduction in the demand charges
The appellant who was a bulk consumer of electricity could not get the full quantity as per the contract between the parties
The appellant therefore filed a writ petition that there should be either no demand charge at all
when the Board was not in a position to supply electric energy or there should be a proportionate reduction of the demand charge
The High Count noted the reduction made by the Board and held that the Board was entitled to the demand charge
It did Dot however decide as to what should be the basis for and in what proportion the demand char o should be reduced
The appellant also contended that no duty was lovable on the demand charge under the Punjab Electricity Duty Act 1958 but only on the energy charge for the actual amount of energy supplied but the High Court rejected this contention
Allowing the appeal in part on the first contention  HELD 1 The circumstance of power cut which disabled the Board to give the full supply to the appellant would be a circumstance which disabled the consumer from consuming electricity as per the contract and this was a circumstance which was beyond it control and could not be considered otherwise by the Board
It entitled the consumer to a proportionate reduction of the demand charge
In a circumstance like this the obligation of the consumer o serve at least 3 days  notice on the supplier as per the later part of sub clause f was not attracted as the requirement of the notice was only in the case of shut down of not less than 15 days  duration 682 A B C Therefore the inability of the Board to supply electric energy due to power cut as per the demand of the consumer according to the contract will be reflected in and considered as n circumstance beyond the control of the consumer which prevented him from consuming electricity as per the contract to the extent it wanted to consume
682 D 2 L159SCT76 678 2 A reading of the clauses of the Schedule of tariff as a whole makes it clear that the duty under the Punjab Act is chargeable on the price of energy supplied in a month
Therefore the duty is chargeable not only on the energy charge but also on the demand charge
It is however chargeable on the actual amount of demand charge realizable from the consumer