ivil Appeals Nos
3510 3511 of 19822
PG NO 981 From the Judgment and Order dated 2391982 and I8 19101982 of the Madhya Pradesh High Court in Misce
WP NO
88881 and Review MCCNo 352 of 1982
D Gupta MC Bhandare OP Khaitan Anil Bhatnagar Krishan Kumar Dhruv Agarwal and Mrs Kiran Choudhary for the Appellants
SN Kacker ML Jaiswal Vivek Gambhir and SK Gambhir for the Respondents
The Judgment of the Court was delivered by SHARMA J
The dispute in these appeals is in regard to the additional demand of electric charges made by the respondent No 1 on the appellant No 1 for energy consumed
By a writ application filed before the Madhya Pradesh High Court the appellant challenged the demand of Rs 1869788097 for the period 12111979 to 3061981
Except for granting a minor relief as indicate in paragraph 45 of its judgment the High Court dismissed the writ application
The writ petitioner appellants have impugned the judgment before this Court by special leave
The appellant No 1 Jiyajeerao Cotton Mills Ltd hereinafter referred to as the Company which runs a textile mill in Gwalior entered into an agreement dated 27101971 with the respondent No 1 Madhya Pradesh Electricity Board in short the Board a licensee under the hereinafter referred to as the 1918 Act for supply of electricity in accordance with the terms and conditions mentioned therein
The quantity of electricity to be supplied varied from time to time under supplementary agreements and the Board had to supply 2500 KW on AT basis with effect from 1111973
Since 1975 the Board is not able to generate sufficient electricity to meet the full demand of the consumers and with a view to ease the situation two orders were issued by the States of Madhya Pradesh under section 22B of the called as the Madhya Pradesh Electricity Supply and Consumption Regulation Order 1975 and the Madhya Pradesh Electricity Generation Control and Consumption Order
The learned counsel for the parties have in their arguments referred to these orders as Regulation Order and Generation Order respectively
By the Regulation Order  the consumers were asked to reduce their consumption in accordance with the provisions therein
It was further provided that without prejudice to the Board s power to disconnect the supply in PG NO 982 the event of any violation thereof the consumer will have to pay the charges at penal rates for the excess energy consumed
The Generation Order said that if a consumer had an alternative source of generating power from his own generating set described as captive power by the parties it may be required to generate electricity to the maximum extent technically feasible and the supply by the Board would be reduced to that extent
The Order in Clause 3 provided for assessment of the generating capacity of the captive power of the consumer
The contract demand under the agreement was directed to remain reduced accordingly
Sub clause iii of Proviso to Clause 3 said that if in certain contingencies there was reduction in the generation of electricity by the consumer the Board would try to make good the deficit against an appropriate charge for it
An arbitration clause with respect to any dispute was included in the 6th paragraph of the Order as its last term
Both the Orders came into force with effect from the 7th of April 1975
The Divisional Engineer Gwalior informed the appellant Company by the letter dated 1751975 marked as Annexure B  page 121 Vol
II of the paper book that its additional generation capacity technically feasible by its own generating sets had been assessed at 2700 KW
In view of the contract under which the Board was to supply 2500 KW with effect from 11111973 the Company was directed to generate additional electricity to that extent thus reducing the demand on the Board to nil
After several letters passed between the parties which will be dealt with at some length later another letter dated 10101975 marked as Annexure O  page 136 Vol
II of the paper book was sent to the Company issuing a fresh direction for generating additional electricity to the extent of 2500 KW with effect from 31101975
It appears that the Board did not bill the appellant Company for any additional energy supplied at the penal rate for the next several years
According to its case the Company invoked the provisions of Proviso iii to Clause 3 of the Generation Order pleading emergency
arising from time to time covered by the Proviso and was supplied additional energy accordingly
The Company was under a duty to place its difficulties before the Board and obtain permission before drawing additional energy under this provision of emergency supply
It appears that after 11111979 additional power was drawn by the appellant without the Board s prior approval and a letter Annexure T  dated 581980 was ultimately sent to the Company explaining the situation and telling it that the supply availed by it with effect from 12111979 would be billed at the penal PG NO 983 rate
In the meantime two additional contracts were executed by the parties the first one on 1171979 Annexure C  for supplying additional 800 KW and the second one dated 2621980 Annexure D  for additional 190 KW
Thus the total demand under the agreements added to 3490 KW
The Board by its letter Annexure U  dated 13101980 reiterated its stand taken under Annexure T  intimating the appellant the maximum amount of electricity it was entitled to consume at the normal rate
The letter further added that no additional power would be allowed as emergency supply to the Company even during the period of overhauling of the generating sets as was done earlier under Proviso iii to Clause 3 of the Generation Order
The matter was debated for some time and ultimately the additional demand for the period 12111979 to 3091980 amounting to Rs944174560 was served on the appellant Company by the letter Annexure X  dated 1511981
The further bills were also sent on the same basis
On 581981 the application under Article 226 of the Constitution was filed before the Madhya Pradesh High Court challenging Annexure H  O  T  and U 
The main case of the petitioner appellant was rejected by the High Court but marginal reliefs with respect to the Board s demands for the period 12111979 to 2521980 and from 2621980 to 3171980 were allowed on the basis of errors in calculation
The High Court also pointed out that under the terms of the Generation Order the Board was under a duty to consider and allow the additional emergency supply when conditions arose making the Proviso iii to Clause 3 applicable and the Board could not refuse to do so as was observed in some of its letters
Subject to these minor modifications the writ application was dismissed by the judgment dated 2391982
The Company thereafter filed an application for review which was dismissed by a speaking order of 19101982
The present appeals have been filed by special leave against these two judgments
The appeals have been argued at considerable length by Mr Dipankar Gupta on behalf of the appellant and Mr SN Kacker representing the respondents with great ingenuity and resourcefulness
Mr Gupta appearing in support of the appeals however did not press some of the points urged on behalf of the appellant in the High Court and relied upon some new grounds
therefore do not consider it necessary to deal with all the points disposed of in the High Court judgments except making reference to some of them while dealing with the points urged before us
PG NO 984 7
It will be necessary to examine the relevant portions of the Regulation and Generation Orders Annexures E  and G  before considering the arguments of the learned counsel
They were both issued on 441975 by the State Government of Madhya Pradesh under section 22B of the 1910 Act which reads as follows 22
B1 If the State Government is of opinion that it is necessary or expedient so to do for maintaining the supply and securing the equitable distribution of energy it may by order provide for regulating the supply distribution consumption or use thereof
2 Without prejudice to the generality of the powers conferred by sub section 1 an order made thereunder may direct the licensee not to comply except with the permission of the State Government with i The provisions of any contract agreement or requisition whether made before or after the commencement of the Indian Electricity Amendment Act 1959for or the supply other than the resumption of supply or an increase in the supply of energy to any person or ii any requisition for the resumption of supply of energy to a consumer after a period of six months from the date of its discontinuance or iii any requisition for the resumption of supply of energy made within six months of its continuance  where the requisitioning consumer was not himself the consumer of the supply the time of its discontinuance
 Clauses 3 and 4i of the Regulation Order AnnexureE  have been referred to by the learned counsel for the parties repeatedly and they are quoted below 31
No consumer receiving supply electrical energy from the Board and consuming or using electrical energy for any of the categories specified in column 2 of PART of Schedule VII shall consume or use during any month or day electrical energy in excess of that specified in PG NO 985 respective entry in column 3 of the said Schedule 2 a
If at any time during the month on inspection of the meter reader or any other person authorised by the Divisional EngineerAssistant Engineer of the Board having jurisdiction the consumer is found to have already reached or exceeded the quantity of electricity indicated in column 3 of Part A of Schedule VII the Divisional EngineerAssistant Engineer of the Board having jurisdiction over the area where the consumer s premises is situated may by an order in writing require the consumer not to utilise electrical energy for the rest of the month and such order shall be complied with by the consumer forth with
Appeal shall however lie with the Deputy Chief Engineer of the Board having jurisdiction whose decisions thereon shall be final
b Any HT consumer who makes default in complying with the directions contained in sub clause 1 and item a of this sub clause shall be warned in the first instance in writing by the Divisional EngineerAssistant Engineer of the Board having jurisdiction over the area where the consumer s premises is situated and if the default continues the said Divisional EngineerAssistant Engineer shall after reasonably satisfying himself disconnect power supply altogether to such consumer and supply shall not be resumed without orders of the Deputy Chief Engineer of the Board having jurisdiction 4
Without prejudice to the Board s powers to disconnect supply in the event of violation of Clause 3 above the Board shall bill the electricity consumed or used in excess of the monthly limit specified in column 3 of the Schedule VII at the penal rates as mentioned below i All HT consumers as specified in Schedules I II III and IV Four times of normal tariff both in respect of demand charges and energy charges includ ing fuel cost adjustment charges
 The expressions average monthly consumption average demand and average daily consumption have been defined in Clause 2 of Annexure E  by taking January February and March 1975 as the base period
The VIIth Schedule mentioned PG NO 986 in Clause 3 above has not been included in the paper books with reference to which arguments have been addressed but a copy thereof was filed during the hearing and accepted as a correct copy by the both sides
This Regulation Order was substituted by another Order and later by still a third Order amending the penal rate and the Schedules to the Order
However the learned counsel for the parties stated that except for change in the penal rate and the figures in the Schedules the Order has remained the same all through and it is not necessary therefore to refer to the other Orders
So far as the Generation Order is concerned it requires such consumers who have their private generating sets to generate electrIcity to the maximum extent technically feasible in the following terms 3
Any consumer who is receiving electrical energy from the Board and also has an alternative source of generation of power by his own generation set may be required by the respective Divisional Engineer of the Board having jurisdiction to generate electricity from his set or sets to the maximum extent technically feasible in the opinion of the Divisional Engineer and the Board s supply of electrical energy to such consumer shall be reduced to the extent of additional generation assessed as feasible by the Divisional Engineer Provided that i Before assessing the additional generation feasible and directing the consumer accordingly the Divisional Engineer shall consult the local Manager or Engineer in charge of the set ii The Board shall during the period such a direction is in force reduce the contract demand of the consumer to a corresponding extent and iii if due to an emergency outage which in the opinion of the Divisional Engineer of the Board having jurisdiction is not due to any negligence or failure of those responsible for maintaining and running the set
there is reduction is additional generation or if in the opinion PG NO 987 of the Divisional Engineer the set has to be taken out for maintenance during the period of such emergency or maintenance outage the Board shall try its best to make good the reduction to the consumer levying an appropriate charge for it
 Its 6th Clause directed any dispute between the consumer and the Officer acting under Clauses 3 and 4 to be referred to the Electrical Adviser and Chief Electrical Inspector to the State Government for his decision
While Regulation Order was meant for general application to all consumers the Generation Order was confined only to such consumers who were having captive power source
It is also manifest that such a consumer was under a duty to generate additional electricity only when the maximum technically feasible capacity of the generating set or sets of the consumer was assessed under Proviso i to Clause 3 and was followed by a direction to that effect
The main argument of the learned counsel for the appellant has been that none of the two assessments and directions contained in Annexures H  and O  was sustainable in law on the grounds that a in making the assessment of the technically feasible maximum capacity relevant factors were not considered
and irrelevant and extraneous matters were taken into account b the requisite opinion was not arrived at and the assessment was not made by the authority empowered to do so and c the participation of the appellate authority in process of  assessment completely vitiated it in law
Mr Gupta argued that instead of examining the point on its merit
the High Court erroneously brushed it aside on the plea of waiver and acquiescence
Relying on a number of letters sent by the appellant to the respondent Board it was urged that the appellant Company was protesting against the impugned directions issued by the Board and it is not right to shut it out on the technical ground of estoppel
Mr Kacker on the other hand interpreted the High Court s judgment differently
According to him none of the points raised by the Company was rejected without examining the merits
He strongly relied on some of the letters referred to in the argument of the Company itself as also a few other letters in support of his submission that they furnished PG NO 988 unimpeachable evidence including admissions on the part of the appellant Company proving that the assessment of the maximum feasible capacity of the appellant s captive power sets was duly made in accordance with the Generation Order and in pursuance thereof the required direction was issued which was acted upon by the parties for a number of years
The Company not only took steps to generate the additional energy as was required of it it also took advantage of the provisions of Proviso iii to Clause 3 of the Generation Order and benefitted by it from time to time
For appreciating the argument of the learned counsel for the appellant it is necessary to examine some of the Orders and letters issued in March and April 1975
As has been mentioned earlier
the two Government Orders were issued on 44
It appears that the matter was being discussed by the different authorities of the State Government and the Electricity Board since before this date and advisability to require the consumers having captive power to generate as much energy as was technically feasible was under consideration for some time
The question as to their capacity in this regard naturally assumed importance and some steps for assessing the same were taken a few days before the Orders actually came into effect
On 2831975 a letter sent from the Board to Sri HK Aggarwal the Electrical Adviser and Chief Electrical Inspector to the State Government Annexure R 1  referred to a telephonic talk in connection with the assessment of the generating capacity of the captive power set
It was mentioned that it would be necessary to make a realistic assessment in respect of each of the consumers by keeping in mind the suggested factors
The letter further said that with that object the Board had constituted a Committee consisting of Sri Aggarwal himself
the Superintending Engineer of the concerned Circle of the Board and the Divisional Engineer Generation Jabalpur of the Board as Members
The appellant Company is mentioned as one of the 17 consumers in this category
Along with his letter dated the 3rd of May 1975 Sri Aggarwal sent the report as desired
It has been contended on behalf of the appellant that the Generation Order authorised the Divisional Engineer of the Board to assess the additional feasible capacity of the captive power source and any other person or authority or Committee could not usurp this jurisdiction
The impugned letter Annexure H  issued by the Divisional Engineer has been characterised as illegal on the ground that it was based upon the assessment by the Committee headed by Sri HK Aggarwal and not by the Divisional Engineer
the learned counsel proceeded to say that immediately after receipt of the intimation by the Board the Company protested on 2151975
The Board s reply dated 261975 has been relied PG NO 989 upon as showing that the direction was issued on the basis of the assessment of the Committee and not of the Divisional Engineer
It was also pointed out that Electrical Adviser and Chief Electrical Inspector to the State Government the then incumbent being Sri HK Aggarwal was the appellate authority under Clause 6 of the Generation Order and could not therefore take part in the original assessment proceeding
The reply of the Board is that the Committee no doubt inspected the generating sets and discussed the matter with the consumers and thus collected relevant data for the purpose of assessment of the capacity but the Divisional Engineer while relying on the material collected did not mechanically accept the conclusion of the Committee
He the Divisional Engineer applied his mind before issuing the Order Annexure H 
Mr Kacker further said that the matter did not rest there
After taking into account the objection raised by the Company the Divisional Engineer took up the matter afresh and applied his mind independently
Ultimately he came to a similar conclusion as is evident by the second direction as contained in Annexure O  dated 10101975
The argument of Mr Kacker appears to be well founded
On receipt of the letter Annexure H  dated 1751975 whereby the Divisional Engineer directed the Company to generate 2500 KW of electricity by its own generating sets the appellant Company protested by its letter dated 2151975 at page 195 of the Paper Book Vol
Mr Gupta strenuously relied on this letter which stated that the Company failed to understand as to how its additional generating capacity had been assessed at 2700 KW
It will be necessary to discuss this letter in some detail later in the judgment while dealing with another point as Mr Kacker also has relied on certain statements made therein
At this stage however we should like to point out that the appellant did not challenge the assessment on the ground that it was not made by the authority mentioned in the Generation Order and in the last paragraph the request made was for review
The next document referred to by the learned counsel for the appellant is the letter dated 3051975 page 305 of the Paper Book Vol
II wherein the Company stated that as desired by the Board we have started generating about 2000 KW additional power at our generating station tonnes daily for this additional generation PG NO 990 Finally a request was made in the letter to the Superintending Engineer of the Board to recommend the appellant s case for allotment of additional wagons for transport of coal
Instead of advancing the appellant s case the letter shows that the assessment and the direction mentioned in Annexure H  were accepted by the Company and steps were taken to implement the same
Chronologically proceeding the letter dated 261975 Annexure I  at page 122 of the Paper Book Vol
II was relied on by Mr Gupta as proving the fact that the assessment of additional generating capacity had been done by the Committee mentioned in the letter dated 2831975 supra and not by the Divisional Engineer as required by the Generation Order
The learned counsel far the parties next placed before us the letters dated 361975 document No 3 at page 302 of the Paper Book Vol
II and dated 461975 document No 1 at page 300 of the Paper Book Vol
II another letter of the same date Annexure J  at page 123 of the Paper Book Vol
II and then dated 881975 Annexure K  at page 132 of the Paper Book Vol II and 1101975 Annexure O  at page 136 of the Paper Book Vol
The argument of Mr Kacker has been that the Divisional Engineer applied his mind independently to the question of assessment of the capacity of the appellant s generating sets and while so doing took in consideration the factual data collected by the Committee mentioned in the letter of 2831975
It was pointed out that all the three persons constituting the Committee were very highly placed officers and there could not be any legitimate objection if the Divisional Engineer referred to the data collected by them in presence of the Company s Officers after personally verifying them
Even a judicial tribunal or a regular court is allowed to rely upon evidence collected by an enquiry officer or commissioner
The learned counsel heavily relied on the letter dated 361975 from the Divisional Engineer to the Superintending Engineer document No 3
On behalf of the appellant it was said that the Company had no knowledge of this letter in 1975
We do not think that this is a correct stand
The letter mentions an inspection of  the Company s power House by the Divisional Engineer and the materials supplied by the Company to him
The details with respect to the boilers of the Company and the other figures mentioned therein correctness whereof is not challenged by the appellant fully establish that the inspection was made in presence of and the figures were collected with the assistance of the officers of the appellant Company and the conclusion regarding the assessment was reached after taking into account the case of the Company
It has been argued on behalf of the Board before us that the method adopted by the Divisional Engineer as disclosed by this letter document No 3 was different PG NO 991 from that followed by the Committee as a result of which there was some difference in their final result
On the basis of his independent assessment the Divisional Engineer issued another instruction as contained in Annexure O  dated 10101975 at page 136 of the Paper Book Vol
II mentioned earlier
This second direction which was effective from 31101975 naturally superseded the earlier one under Annexure H 
The Board s impugned demand does not relate to any period before 31101975 and therefore it is immaterial if the direction in Annexure H  is completely ignored on account of its supersession by Annexure O  or on any other ground and it be assumed that in absence of a feasible assessment of the capacity the Generation Order was not applicable to the appellant Company before 31
10 1975
Mr Gupta relied on the letter dated 461975 document No 1 referred to above for showing that the Company emphatically protested against the assumption that it could generate additional 2500 KW
It was said that its capability in this regard was limited to 1200 KW
The learned counsel referred to the other letters also for a similar purpose
We think that in view of the revised order of the Divisional Engineer passed on 10101975 vide Annexure O  earlier correspondence is not material for the purpose for which the appellant is trying to use them
The learned counsel for the respondent has relied on some of them for his argument on the other points and we will have to deal with them again when we take up those points
So far as the question as to whether an assessment of the feasible capacity of the generating sets of the appellant Company was made by the Divisional Engineer as required by the Generation Order is concerned we have no hesitation in deciding the issue in favour of the respondent
On behalf of the appellant it was urged that since the Electrical Adviser cum Chief Electrical Inspector of the State Government who has been mentioned as the appellate authority under Clause 6 of the Generation Order was associated with the assessment by acting as a member of the Committee vide Annexure R 1  at page 256 of the Paper Book Vol
II the entire process in this regard should be held to be completely vitiated
In view of our finding in the preceding paragraph the argument has to be rejected
Besides it is not correct to assume that an appeal against the assessment was provided by Clause 6 of the Generation Order which reads as follows 6
In case of any dispute between the consumer and the Divisional Engineer acting under Clauses 3 and 4 it shall PG NO 992 be referred to the Electrical Adviser and Chief Electrical Inspector to the Government of Madhya Pradesh whose decision shall be final
 The above is obviously an arbitration clause in case of a dispute and since the maintainability of the appellant s writ application before the High Court was decided in its favour it cannot make a grievance on this score
Besides if the appellant Company had a grievance against the assessments which were made in 1975 it ought to have challenged the same then and not to have waited for a number of years before approaching the High Court
Mr Gupta challenged the assessment still on another ground
He contended that while making the assessment the relevant factors were ignored and irrelevant and extraneous considerations were taken into account
The argument which is based on certain scientific technical hypothesis proceeded thus The Company had 3 Generator Sets described as MV Turbo Generator Set BB Turbo Generator Set and AEG Turbo Generator Set and five Boilers
Another Boiler was added in 1977
Every generator set has a rated capacity which has been described by the learned counsel as the level at which operation can continue satisfactorily for indefinite period
This rated capacity is declared by the manufacturer and can be accurately ascertained without difficulty
The terms overload  and overload capacity  have been explained by the learned counsel as one exceeding the level at which operation can continue satisfactorily for an indefinite period and excess capacity of a generator over that of its rating respectively
It was urgued that overloading may lead to distortion or to overheating with risk of damage depending on the type of circuit or device and so in many cases only temporary overloads are permissible
The overload capacity it has been said is referrable generally for a specified time
The criticism against the report of the Committee is that the Committee took into account the overload capacity of the sets and not the rated capacity
Mr Gupta stressed on the point that the AEG Turbo Generator Set was maintained as a standby to be operated only when other sets were not available for any reasons
He also said that the feasible generation capacity of a set is also dependent on other factors and conditions namely age and condition of the set availability of coal of requisite quality and specification adequate and continuous supply of water etcetera
Referring to the report of the Divisional Engineer dated 361975 document No 3 at page 302 of the Paper Book Vol
Il it was argued that the Divisional Engineer picked out a moment of time when the plants reached the generation PG NO 993 of 7500 KW and concluded therefrom that the appellant was capable of generating 1800 extra KW from its captive plant
It was further suggested that in any view of the matter on the basis of the aforesaid opinion of the Divisional Engineer the appellant Company ought to have been asked to generate only 1800 KW more and not 2500 KW
Finally it was argued that the Board has to be confined to the reasons in support of the assessment orders which are mentioned therein and cannot be allowed to travel beyond the same
Mr Kacker took great pains in going into the reports and specially through the aforementioned report of the Divisional Engineer dated 361975 with a view to meet the criticism of the appellant and support the report as a correct one on merits
He also relied on a number of letters sent by the appellant showing that the assessment was accepted as binding on it and claiming from time to time benefits under Proviso iii to Clause 3 of the Generation Order which was allowed for a number of years
The learned counsel relied on this aspect as furnishing strong circumstantial evidence in support of the correctness and binding nature of the assessment impugned belatedly when the appellant approached the High Court
It is significant to note that at no point of time either in 1975 or later the appellant chose to get a scientific assessment of its generating sets made by an expert nor even after filing the present writ petition in the High Court did it file any opinion of a person having scientific expert knowledge showing the impugned assessments to be erroneous or undependable
It is also important to appreciate that the appellant has not either earlier or now made any complaint of mala fides or bias against any of the members of the Committee or the Divisional Engineer or for that matter against any officer of the respondent Board or the State
On the other hand the Officers of the Board appear to have taken a very sympathetic attitude towards the appellant for more than four years and allowed it the benefit of additional energy under Proviso iii to Clause 3 of the Generation Order very generously
It was only when the Board discovered in 1980 that the appellant had stopped even informing the Board and obtaining its prior approval as envisaged by the Generation Order before consuming extra energy that the matter was closely examined by the Board s Officers
Mr Kacker is also right in relying upon the conduct of the parties for about four or five years after the assessment was made as furnishing important circumstance relevant to the issue
We may therefore examine a number of letters in this regard some of which have already been mentioned earlier
PG NO 994 19
The very first letter of the appellant Company after receiving the impugned direction in Annexure H  dated 1751975 was sent within 4 days on 2151975 and is included at page 195 of Vol
II of the paper book
It will be seen that the protest against the assessment referred to by the learned counsel for the appellant was not founded on any of the grounds pressed know
The basis was only due to steam limitation assuring that once our boiler under erection starts steaming we can enhance our generation to the full installed capacity
 The prayer in the end of the letter was to review the whole matter
The Divisional Engineer as mentioned earlier personally examined the entire matter be novo
Although in its letter dated the 21st May 1975 the Company had stated that it was not advisable to generate more than 12 KW from its own sets by the next letter dated 3051975 page 305 Vol
II the appellant informed the Board that they were generating about 2000 additional KW but were in the need of additional coal for which the Board was requested to make a recommendation
In Annexure J  dated 461975 page 123 Vol
II the protest against the assessment was once more reiterated on account of some trouble with the boilers
The first paragraph of this letter indicates that the question was under discussion of the Divisional Engineer with the Company s representatives who was armed during the conference with all relevant records
In this background the fresh independent assessment was made by the Divisional Engineer as per the document No 3 dated 361975 page 302 Vol
Before the fresh independent direction by the Divisional Engineer as contained in the impugned Annexure O  dated 10
l01975 was issued a suggestion was made on behalf of the Board to the appellant Company for its satisfaction as to the correctness of the assessment by actually taking the load on the set after running it in parellel with the Board s supply system
The learned counsel for the parties before us explained the scientific implications of the test by parellel running but we do not consider it necessary to go in its technical details
The Board requested the Company s consent for such a test to be communicated positively within a week
By its reply dated 2581975 Annexure L  page 133 Vol
II the Company rejected the suggestion on two grounds namely that it was not having protection system like power relay etc
and in case of tripping of Board s supply we would be doing the parellelling of the sets which was not safe
In reply thereto the Board satisfactorily met the objections by its next letter Annexure M  dated 25101975 page 134 Vol
It was pointed out that the parellel running test will be undertaken only for a short period after which the captive sets would be separated from the Board s system and a disturbance free period could be chosen for the same
Besides the objections to the suggested test have to be PG NO 995 rejected as frivolous in view of the stand of the Company itself as indicated in the letter Annexure N  page 135 Vol
II dated 6111975 stating that it had no objection into the suggested trial which the appellant claims to have sent to the Board which fact is however denied
In the meantime the second assessment order under Annexure O  had already been communicated
It was therefore open to the appellant either to accept and act upon this fresh assess of the boilers in steam generation as the ground for not being able to generate additional electricity as required by the impugned directions
It was also mentioned that after a sixth boiler became available the difficulty would stand resolved
In this background Mr Kacker placed before us several letters starting with the letter of the Company dated 1421977 at pages 4 to 8 of additional paper book PG NO 996 prepared and filed by the respondent Board which was referred to by the learned counsel as Vol
IV of the Paper Book
The Company by this letter requested the Board to charge at the normal tariff for the additional electricity consumed by the Company as emergency supply as per Proviso iii to Clause 3 of the Generation Order
The statements made in the letter appear to be extremely important for the purpose of the Board s case and it may be useful to consider them in some detail
In the first paragraph the Company stated that it was again placing for the Board s consideration the reasons why it could not generate the additional power according to the direction issued
In the second paragraph the main difficulty has been mentioned as steam limitation and reason therefor has been stated in the third paragraph as the inferior quality of coal
Later it was stated thus These problems would not have arisen in case our Sixth Boiler recently erected was commissioned and running without any trouble
 It was said that although the sixth boiler was taken in August it did not work properly for some time
Proceeding further the letter stated It is only since the beginning of January the Sixth Boiler has been in continuous service as a result of which we were in a position to repair our other Boilers also
Since the last week of January we are generating our full requirement and not even availing the 6U0 KW allowed by the Board
In the penultimate paragraph of the letter the case for normal tariff on the additional electricity already supplied by the Board was argued in the following manners Considering all the above facts we sincerely hope that as due to no fault of our own we had to take power from MP EB more than allotted to us it is requested that the charges made to us may be on the usual terms as previously granted by the Board for which we will be ever grateful  emphasis added The letter is not only conspicuous by the absence of the objections which were taken later in 1980 before filing of PG NO 997 this writ case but it positively indicates that the Company accepted the assessment as correct and as expected it was actually able to generate the required additional electricity after the addition of the sixth boiler and was pleading for normal tariff for the additional electricity already consumed earlier
This position is re inforced by several further letters of the Company but before we go to them we would like to point out another very important fact emerging out of this very letter
At page 7 of Vol
II of the paper book the letter dealt with another aspect highly relevant to the present dispute
Another Limited Company known by the name of Gwalior Rayons is having a factory near the appellant Company s factory and the appellant was supplying electric energy to the other factory illegally and without the permission of the Board
On an objection by the Board this matter was dealt with in the following words It is not out of place to mention in this appeal that we had given now and then some power in the past to the Gwalior Rayons in emergency for their Beam Dyeing Plant whenever MPEB power failed
This was due to the fact as the Beam dyeing plant is a pressure dyeing plant with a continuous process there used to be heavy damage to very costly Beams
Since this issue was raised by your Divisional Engineer we have completely stopped this type of supply to them though the same was given to them after reducing our humidity or waste plant load
It is again our request here that the same may be allowed in emergency under whatever arragement the Board may so decide to avoid costly damage to the cloth
A fervent appeal in the interest of the other factory belonging to a different Limited Company altogether was made in the above terms
It has to be remembered that in view of the provisions of section 281 of the 1910 Act the Company was prohibited from supplying any energy to the other factory
This aspect was stressed in term 2b of the agreement between the appellant and the Board as per Annexure A page 62 of Vol
It was not the appellant s case then or before us now that it had obtained the previous sanction of the State Government for so doing
Under Cluase 4 of the Generation Order which reads as follows jurisdiction was vested in the Divisional Engineer ot the Board to direct a consumer having captive source of power to supply electricity to the Board or to any other consumer only if the consumer was having surplus generation PG NO 998 4
If the consumer having own generating sets can have a result of additional generation reasonable in the opinion of the Divisional Engineer of the Board having jurisdiction energy surplus to his requirement the Divisional Engineer may direct him to supply the surplus to the Board or to another consumer nearby who has been taking supply from the Board and who is willing to take the supply from the consumer having generating sets Provided that i the contract demand of and the supply to the other consumer from the Board shall be reduced correspondingly whether or not the other consumer avails of the supply from the consumer having the set ii the other consumer shall pay to the consumer having generating sets for such supply as if it is supplied from the Board iii if the payment receivable by the consumer having the set under the last preceding clause is less than his incremental cost of additional generation the Board shall make good the difference to the consumer having the sets and iv the consumer having the sets will not be required to incur any additional expenditure for laying lines for transmitting energy to the other consumer such lines if required being laid by and at the cost of the Board
 How could in these circumstances the appellant pass on to a third party some of the electricity meant for it there is no explanation on the records
Mr Gupta the learned counsel for the appellant argued that since the other factory was in the neighbourhood it was in the interest of the appellant Company for the sake of security to see that other factory was not plunged in darkness when the supply was inter rupted on account of tripping
Mr Kacker rightly pointed out that no such suggestion was ever made on behalf of the appellant in any of its letters
On the other hand the reason pleaded in the letter quoted above was to save the other Company from incurring loss due to costly damage to the cloth
In his final reply Mr Gupta said that the appellant was passing on some electricity to the Gwalior Rayons only after reducing its humidity or waste plant load as stated in the letter
The explanation is too vague and it cannot be PG NO 999 assumed that the appellant was making the contribution to its sister concern by creating artificial shortage of supply to its mills
The appellant s conduct cannot be explained except on the premise that it was able to generate adequate additional electricity for its purpose and was taking for granted the sympathetic attitude of the Officers of the Board in liberally allowing it additional emergency supply at normal tariff
Another letter which calls for a detailed consideration was sent by the apellant on 3051979 and is included at pages 16 to 20 of Vol
A fresh request for emergency supply under Proviso iii to Clause 3 of the Generation Order was made in this letter on the ground that the sixth boiler was out for annual overhaul
It was stated in the opening sentence that this boiler was giving some trouble earlier but later stabilised 
The Company was therefore self sufficient without drawing any power from the Board so far
The letter proceeded to state that the sixth boiler would be going for annual overhaul and after that the annual overhauling of the other boilers would be carried out and therefore 1875 KW should be allowed to be drawn for the period mentioned therein
Assurance about the future was held in the following terms Now when our Sixth Boiler has been stabilised we would normally not draw any power from the Board after 1591977 when overhauling of all the boilers is complete except in case of emergency due to outage of any of the boilers
It was further requested that during the period of breakdown emergency power as detailed should be supplied and
we would request you that for the power availed by us from the Board for above purpose say up to a total of 7 days in a month
we may be charged at the same tariff 
Insisting again that it should be allowed to supply electricity to Gwalior Rayons described as its sister concern
the letter read as follows Here we may also mention that we have been supplying power to our sister concern Ms Gwalior Rayons
in accordance with the provisions of sanction granted to us under Section 8 of the IE Act vide Govt
Order No PG NO 1000 13136U61XIII74 dated 841975
However
it had not been possible for us to obtain prior Permission from SE Gwalior before switching over power to Gwalior Rayons
It may be mentioned here that power has to be supplied to Ms Gwalior Rayons during the period the Board s supply remained off
and it is not practically possible to obtain prior permission for supply in such cases
We would there fore request you that prior permission should be given once for all for supplying power to the Gwalior Rayons during the period supply from the Board to Ms Gwalior Rayons remained off  This letter dated 3051977 confirms the conclusions derived from the earlier letter dated 1421977 and clarifies that the first letter was not sent by some mistake on the part of the appellant Company
Request for emergency supply was however made from time to time in 1978 and for some time in 1979 which was allowed by the Board
The other letters including those dated 3051978 2961978 771978 and D 991978 are all consistent with a correctly made binding assessment of the feasible additional capacity from the generating sets belonging to the Company
Mr Gupta contended that throughout the period 1975 to 1979 there was never a demand made by the Board for any energy consumed by the appellant at the penal rate and it was only in 1980 that the Board suddenly decided to press for the additional demand on the basis of the Generation Order
The learned counsel emphasised that before the provisions of the Generation Order can be relied upon by the Board it is essential for it to make an assessment of the consumer s capacity to generate electricity from its captive power plant
The fact that no demand was made for many years leads to the conclusion that such an assessment as required by the provisions of the Generation Order to be made had not in fact been made and alternatively assuming that factually the capacity had been assessed the same must be ignored on account of the conduct of the parties for several years
The stand of Mr Kacker as has been stated earlier is that the parties acted on the basis that an assessment had been made in accordance with the Generation Order and on that basis the appellant demanded the benefit under Proviso iii to Clause 3 of the Order
The documents relied on by him and discussed in the preceding paragraphs support the respondents  stand
They also explain as to why demand on the penal rate wa
not made earlier
but it would be helpful to consider a few more facts relevant to this aspect
PG NO 1001 24
The system of supply of power to the consumers is such that they can go on drawing electricity beyond their entitlement without any further positive step by the officers of the Board
The Board is however in a position to by keeping a certain switch known as Air Break Switch open put a restriction on the consumer from drawing excess energy
A letter dated 461975 document No l at page 300 of Vol
II sent by the appellant has been strongly relied on by Mr Kacker for showing that Air Break Switch was permitted to remain closed with a view to assure uninterrupted supply of the appellant at its request
The result was that the appellant was in a position to draw excess electricity without reference to the officers of the Board
That letter indicates that the Board was contemplating to keep the switch open and the Company by this letter made a request not to do so
The appellant Company was fully conscious of the fact that it was consuming electricity beyond its entitlement under the two Orders by claiming the benefit of the provisions dealing with emergency supply
and was also alive to the fact that this had to be done only with the prior approval of the Board
The relevant portion of the letter is in the following terms Further at no time it may kindly be noted that power has been availed from MPEB without prior intimation by phone either to Divisional Engineer or Supdt
Engineer
By keeping the AB Switch open at your end the delay in supply to JC Mills will be considerable which will cause very heavy losses to the J C Mills for no fault of their own
This may kindly be reviewed and   The learned counsel for the Board was right in saying that on account of this request by the appellant the line was kept open for it unhindered
This did not mean that the Company was entitled to misuse the privilege draw extra energy without prior permission and thereafter refuse to pay higher charges when demanded
It has been conclusively established by a large number of letters on the records of the case that for several years the Company was particular in obtaining the permission of the Board for drawing electricity in excess of what it was entitled to by the agreement as modified by the Regulation Order and Generation Order but later it not only stopped seeking the advance sanction in this regard it did not even care to inform the Board ot the excess drawal
The Branch of the respondent Board at Gwalior sent the bills on the basis of the normal tariff as the question of grant of additional emergency supply was being dealt with by the Head Office at Jabalpur
The Gwalior Office was not at all dealing with the matter PG NO 1002 relating to the excess emergency supply which aspect was being exclusively dealt with at Jabalpur and as soon as the relevant facts came to the knowledge of the Head Office of the Board it took up the matter with the appellant Company
The entire conduct of the parties furnishes strong circumstantial evidence in support of the Board s case
Another argument addressed by Mr Gupta is based on the letters Annex
P  series sent by the Board to the appellant Company from time to time
They have been included at pages 137 to 156 of Vol
Il of the paper book and according to Mr Gupta they are inconsistent with the Board s case regarding the appellant s entitlement to receive the amount of energy from the Board
He has pointed out that these letters do not suggest that the contract demand had been reduced to nil in accordance with Annexures H  and O 
By way of illustration he relied on the letter dated 31101975 at page 138 of Vol
II stating that the Company s maximum demand should not exceed 1875 KW
We do not find any merit in the submission
The letters marked as P  series did not deal with the entitlement of the appellant Company as a result of both the Orders Regulation and Generation
The Regulation Order was ot universal application to all the consumers while the Generation Order applied to only such of them who had their own generating sets
Under the Regulation Order the contract demand was reduced by a certain percentage and provided for payment of charges at penal rate in case of excess consumption
The rate of cut and the penal rate for additional consumption did not remain constant and were revised from time to time
It appears that as and when the revision in the rates took place the consumers were informed as to the effect of the Regulation Order as it stood after modification
Mr hacker was right in saying that since the Regulation Order was applicable to all the consumers and letters similar to those marked as Annexure P  series were being addressed to all of them there could not be any objection in the Board sending similar letters to the appellant and others having their private generating sets dealing with the effect of the Regulation Order alone without taking into account the Generation Order
A perusal of these letters fully supports the respondents  stand that they were being issued with reference to the Regulation Order alone
Further a close examination of the Generation Order would show that the maximum permissible limit available under the Regulation Order had not ceased to be relevant even after the application of the Generation Order
The entitlement of the appellant due to emergency outage under Proviso iii to Clause 3 ot the Generation Order was limited to the original contract demand as reduced by the Regulation Order
It was therefore important for the PG NO 1003 appellant to keep in mind that at no point of time it could be entitled to ask for beyond this limit as emergency supply on any ground what soever
As this limit fluctuated from time to time on the change in the percentage of reduction in the Regulation Order the appellant was rightly reminded of the latest position in this regard
The learned counsel for the respondents was also right in saying that these letters could not have misled the appellant in any manner
The numerous letters discussed earlier clearly indicate that the appellant correctly appreciated its position and repeatedly made requests for emergency supply under the Generation Order on the assumption that its entitlement had been rendered to zero
The appellant s letter dated 3051977 at page 16 of Vol
IV referred to earlier fully demonstrates that the plea raised by the appellant is devoid of any merit
A portion of the said letter not dealt with earlier is in the following terms During the period of break down we would request you to agree to the following arrangement i
Before availing Board s power during the emergency we will intimate the BE MPEB Gwalior as well as SEMPEB Gwalior and send a copy of our letter to the Director Com MPEB Jabalpur
iia In case 6th boiler is out and other boilers arc working satisfactorily we may be allowed to draw power upto 1200 KW
b In case 6th boiler is on range and one of our M V boilers is out we may be allowed to draw power upto l200 KW
c In case 6th boiler is not and one of our MV boilers is also out we may be allowed to draw power upto 1875 KW
If present stand of the appellant be assumed to be correct there was no occasion for it to claim varying quantities of power in changing circumstances as mentioned above
It was also urged on behalf of the appellant that the Board s letter dated 13101980 Annexure U  at page 182
II impugned by the appellant is also inconsistent with the Board s stand in the present case
By this letter the appellant was informed that the contract demand of 3490 PG NO 1004 KW as per the agreements between the parties was going to be reduced to 1250 KW under the provisions of the Generation Order and on further reduction under the Regulation Order it would come down to 875 KW only
The appellant was accordingly directed to draw power upto 875 KW with effect from 181980
The Board further informed the appellant that no additional power will be supplied during the period of overhauling of the private generating sets
This part of Annexure U  has been set aside by the High Court on the ground that under Proviso iii to Clause 3 ot the Generation Order the Board was under a duty to permit the appellant to draw additional electricity on satisfaction ot the relevant conditions for emergency supply which it could not deny
The Board has not challenged this part of the High Court s decision and the same is not relevant for purposes of the present appeal
Reliance on behalf of the appellant has been placed on the earlier part of the letter directing it to limit its drawal to 875 KW
Mr Gupta explained the situation thus The contract demand as per the original agreement and the subsequent agreements by the date on which the letter was issued admittedly was 3490 KW
If the Board s case that the appellant s capacity to generate electricity from its own sets was assessed at 2500 KW be accepted as correct then the appellant would have been held entitled to draw KW only and not 1250 KW as mentioned in the letter
Mr Gupta invited us to consider this aspect along with the Board s earlier letter Annexure R  dated 28121979 page 158 of Vol
II informing the appellant that additional power to the extent of l90 KW had been sanctioned
The admitted position in regard to different agreements between the parties is that initially the parties entered into a contract with respect to 1500 KW only which was later raised to 2500 KW
The Regulation and Generation Orders came into existence at that stage
In July 1979 a supplementary agreement was executed between the parties for supply of additional 800 KW
and in December 1979 the Board further sanctioned l90 KW
The relevant part of the letter relied on by Mr Gupta is quoted below The Board has sanctioned l90 KW additional power over and above 3300 KW at 33 KV subject to the following conditions 1 The Contract Demand shall be reduced in terms of Govt
Control Order No 12542048XIII75 dated 4475 after the decision of the Committee headed by the Electrical Adviser  Chief Electrical Inspector to Govt
of MP regarding re assessment of the capacity of the consumer s generating set is known
 PG NO 1005 The argument is that the Board could mention about a Committee proceeding to assess the capacity of the consumer s captive plant only if there had not been earlier any assessment
The reduction in the contract demand under the Generation Order should have been made after the assessment work was completed but as a matter of fact no such assessment was made and ultimately the letter Annexure U  dated 13101980 was issued arbitrarily without any basis
In absence of an assessment of the capacity under the Generation Order no reduction was permissible
Mr Kacker s reply is that since the appellant for the period of more than 4 years was pleading for emergency supply from time to time on one ground or the other an internal Committee of Superintending Engineers which had visited the Company s plant on 2591980 suggested that the appellant Company be granted additional power to the extent of 260 KW on regular basis instead of examining the grounds relied upon by the appellant every now and then
The latter part of the letter informing the appellant that it would not in the future be supplied additional power on the ground of emergency has been referred to in support of this argument
Mr Kacker further said that unfortunately the Board was held liable for the emergency supply if the necessary conditions were satisfied and thus the appellant has got double advantage and this cannot be the basis for accepting the appellant s case
The learned counsel proceeded to say that the letter Annexure R  was issued in connection with the sanction of 190 KW additional power subject to the Government Orders and the reduction thereunder was only a matter of arithmetical calculation which should have been done without reference to a Committee
The letter was not sent in connection with any controversy about the assessment of the generating capacity under the Generation Order and it cannot be interpreted in the manner as suggested on behalf of the appellant
It was further pointed out that admittedly there was no question of a committee headed by the Electrical Adviser and Chief Electrical Inspector to the Government of Madhya Pradesh to make a fresh assessment under the Generation Order or to undertake the realistic assessment of the additional capacity over again
The assessment had to be made by the divisional Engineer of the Board
It was lastly said that this argument addressed by Mr Gupta before this Court was not advanced before the High Court nor was the point taken in the writ petition or any affidavit there
On a consideration of the documents and the relevant circumstances we agree with Mr Kacker
The use of the word re assessment in the letter quoted above instead of assessment also supports the respondents  case
The term re assessment implies that there had already been an PG NO 1006 assessment earlier
Even interpreting the letter as suggested by Mr Gupta the existence of the earlier assessment by the Divisional Engineer cannot be ignored
If the appellant was not satisfied with it it should have taken appropriate step for getting the same quashed in 1975 itself and should not have waited for four or five years before approaching the High Court and in the meantime taking the benefit of the provisions regarding emergency supply on its basis
Now in this background let us come back to the argument of Mr Gupta as mentioned earlier in paragraph 16 above
In reply Mr Kacker asserted that it is not correct to assume that a machine can function on a regular basis only according to the rated capacity as declared by the manufacturer
By way of illustration he relied upon the specifications relating to a machine issued by the Bharat Heavy Electricals Ltd indicating that the Peaking capacity  of the machine with No time limit was higher than the rated output mentioned
The learned counsel also analysed the report of the Divisional Engineer along with the data mentioned by the Committee which in his opinion indicated that the maximum capacity of the appellant s sets technically feasible was much more than that actually assessed and could not be less by any calculation even before the 6th boiler was erected
After the sixth boiler became available the capacity rose to at least 9700 KW but the Board taking a generous view did not call upon the appellant to generate further additional electricity than that directed earlier
We have heard the learned counsel at considerable length on this aspect and we think that the question as to what should be considered the correct feasible capacity of the appellant s sets is one involving complex technical knowledge and the High Court or for that matter this Court was well advised not to have attempted to determine it
We must reiterate the circumstances which appear to be highly relevant namely i that the Divisional Engineer who has been rightly considered by the Generation Order to have sufficient expert knowledge in this regard reached the conclusion which is under challenge in the present case after personally considering the matter thoroughly along with the Officers of the Company as is apparent by many of the letters ii the figures collected by the members of the Committee are not challenged as incorrect or inaccurate iii it is not suggested that any of the members of the Committee or the Divisional Engineer or for that matter any Officer of the respondent Board or of the Stale Government had any prejudice or bias against the appellant Company PG NO 1007 iv the appellant did not get an independent assessment of its generating sets made by any person having expert knowledge v the appellant avoided to get the correctness of the assessment verified by the parellel running test as suggested by the Board and vi the conduct of both the appellant and the respondent Board as emerging from the documents placed by the parties on the records of the case furnish valuable circumstantial evidence in support of the respondents  case
The argument of the appellant challenging the assessment as illegal must therefore be rejected
Mr Gupta by way of an alternative plea pressed an argument for granting a limited relief
He urged that even assuming that the assessment of maximum feasible capacity of the appellant s sets was correctly made in 1975 so as to be binding on the appellant it is fully established even by the letters of the Board that the position stood materially altered by November 1979 which called for a re assessment
The Board s letters dated 27111979 page 157 Vol II and 28121979 page 158 Vol 11 according to the learned counsel
indicate that irrespective of whether the initial assessment was good or not the Board accepted the position that steps for re assessment had to be taken and after taking into account the circumstances decided to grant an ad hoc benefit of 260 KW by its letter Annexure U  dated 13101980 page 182 Vol
Il discussed earlier
Although the appellant does not agree that the grievance of the appellant was properly met by the grant of the additional 260 KW but since this was allowed by the Board itself the relief should have been granted with effect from November 979 and not from 181980 as mentioned in Annexure U 
The plea of the respondent that this additional power was allowed on account of the recurring demand by the Company for emergency supply under Proviso iii to Clause 3 of the Generation Order has been challenged as incorrect
It is urged that the letter Annexure U  granting additional 260 KW over and above 875 KW the appellant was held entitled to draw must be read in the background of Annexure Q dated 27111979 page 157 Vol
II and Annexure R  dated 28121979 page 158 Vol
These letters have been discussed earlier while dealing with another argument
The argument of the appellant is that the Board had recognised the need of re assessment of the capacity and had decided to entrust the work to a committee and it must be presumed that the team must have submitted some report
However no such report has been placed by the Board on the records of this case and the suggestion is that it is a case of suppression by the respondent and the Board cannot be heard to say that the team did not go i e question of re assessment
Since the matter was raised by the appellant in November 1979 PG NO 1008 which ultimately resulted in the partial relief up to 260 KW about 11 months later the benefit ought to have been allowed with effect from November 1979 if not earlier
The stand of the Board with respect to this additional 260 KW has already been mentioned earlier
It is argued by the Board that the Generation Order contemplates only a single assessment leading to a single direction and the appellant was not entitled to re assessment
The word re assessment in Annexure R  was according to the respondents mentioned due to inadvertence or under a misconception of the exact legal position
In any event the additional energy was allowed as the result of the repeated demand by the appellant for emergency grant
With a view to meet the situation which was arising every now and then a generous attitude was taken to allow additional 260 KW
It is contended that no further claim can be legitimately founded on this act of generosity
As a result of the High Court s decision the appellant s claim for emergency supply was being considered on merits
The appellant is thus having the advantage of the double benefit with effect from 181980
because the Board has neither appealed against that part of the High Court judgment nor has it withdrawn the special benefit of 260KW but a further claim cannot be allowed on account of this sympathetic attitude
In view of our finding that a proper and binding assessment of the capacity of the appellant s generating sets was made in 1975 by the Divisional Engineer in pursuance of which the direction in Annexure O was issued and in view of the further fact that on that basis the appellant from time to time asked for and was allowed emergency relief under proviso iii to Clause 3 of the Generation Order the argument of Mr Kacker appears to be correct
The appellant has in our view
failed to establish any right ot additional relief from an earlier date
The next point taken on behalf of the appellant is that there is no sanction in law for charging at the penal rate for the electricity consumed beyond what is permissible on application of the Generation Order
Section 22B of the 191 Act confers powers of framing subordinate legislation on the State Government for the purposes and to the extent mentioned therein and consequence of contravention of any such Order is provided in s42 e mentioned below 42
Whoever        e makes default in complying with any order issued JIYAJEERAO COTTON MILLS vs ELECTRICITY BOARD SHARMA
J  1009 to him under section 22B or sub section 2 of section 34 shall be punishable with fine which may extend to one thousand rupees and in the case of a continuing offence or default with a daily fine which may extend to one hundred rupees
 The argument is that section 22B cannot be so construed as to include a delegated power to impose penalty of the delegate s choice for the contravention of an order issued under the Section
Since the legislature itself exercised its legislative power in that field by including section 42 in the statute the State had or has no authority to take any further step for the enforcement of its Order except by resorting to section 42
Dealing with section 78 A of the 1948 Act which says that in the discharge of its functions the Board shall be guided by such directions on questions of policy as may be given to it by the State Government
Mr Gupta contended that it cannot be interpreted to effectively clothe the State to direct the Board to do a thing which it is itself nOt empowered to do
The Board therefore should have either prosecuted the appellant under section 42e or disconnected the electric supply altogether but it was not entitled to demand penal charges
Mr Kacker countered by saying that section 42 of the 1910 Act belongs to the group of sections 39 to 50 dealing with Criminal Offences and Procedure as is apparent by the heading just above section 39 and deals with the criminal liability only
The same set of events may give rise at the same time to civil rights as well as to a criminal offence and it is not correct to suggest that merely because provisions arc specifically included in the Act dealing With criminal liability the civil liability is deemed to have disappeared
By way of illustration a simple case of theft ot movable article may be considered the owner ot the property can set the criminal law in motion and at the same time may claim the property or compensation for it under the civil law
Mr Kacker appears to be right in his stand that merely because the appellant became liable to the penalty as mentioned in section 42e it cannot on that ground defend an additional demand on account of supply of the extra energy  if otherwise maintainable under the law
Besides section 48 puts the matter beyond controversy by expressly stating that the penalty imposed by the aforesaid section shall be in addition to and not in derogation of any liability in respect of the payment of compensation which the offender may have incurred
While commencing his argument Mr Gupta had indicated that one of the points on which the appellant relied upon related to the validity of Clause 3 of the PG NO 1010 Generation Order mandatorily requiring a consumer to generate maximum feasible electricity from its own generating set
It was suggested that the provisions in the said Clause being in excess of the power under section 22B were ultra vires
After completing his argument on the other points he said that he was not pressing this point
Mr Kacker therefore did not address us on this aspect
We may not in these circumstances detain ourselves on this question except mentioning the decisions in Adoni Cotton Mills vs AP State Electricity Board   State of UP vs Hindustan Aluminium Corporation   and New Central Jute Mills vs U P State Electricity Board 1986 Supp
SCC 581 showing in unambiguous terms that the power is there
section 22B permits the State Government to issue an appropriate order for regulating the supply distribution and consumption of electricity The expression regulate  occurs in other statutes also as for example the  and it has been found difficult to give the word a precise definition
It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the relevant provisions and as has been repeatedly observed the Court while interpreting the expression must necessarily keep in view the object to be achieved and the mischief sought to be remedied
The necessity for issuing the two Orders arose out of the scarcity of electricity available to the Board for supplying to its customers
The situation did not leave any option to the Board but to make limited supply of electricity to its consumers and it must be held to have in the circumstances the right to stagger or curtail the supply
The Orders were issued in this background and to make the direction mentioned therein effective it was considered essential to impose sanctions which could take any reasonable form either disconnection in case of gross violation or the lesser sanction of enhanced tariff
By the Order issued under section 22B and quoted in paragraph 7 of the judgment in Adoni Cotton Mills case supra the State Government directed a reduction in supply of electricity to the extent of 75 of the previous average monthly demand and provided for payment of the charges for excess consumption at double the tariff rates
The Electricity Board thereafter proceeded to impose further restrictions
Aggrieved by these measures the Adoni Cotton Mills an aggrieved consumer approached the Court but its challenge was repelled
On behalf of the appellant Mr Gupta attempted to distinguish the decision on the ground that the fixing of a higher tariff for the excess consumption was against public policy and that this aspect was not considered by this Court in Adoni Cotton Mills case
We do not find any merit in this argument
The demand of higher chargestariff PG NO 1011 for electricity consumed beyond legally fixed limit is a reasonable deterrent measure providing an appropriate sanction not as harsh as disconnection of supply of energy altogether and cannot be opposed on the ground of public policy
We therefore hold that none of the two Orders is illegal or unreasonable
Mr Gupta alternatively contended that the provisions fixing the electric charges at 4 times the normal tariff for the excess consumption are to be found only in the Regulation Order and since there is no corresponding provision in the Generation Order there is no sanction for demanding the penal rate for the electricity consumed incontravention of the Generation Order
He proceeded to say that there is no language in either of the two Orders to link them with each other
The different measure taken under the two Orders operate under different conditions and circumstances and they cannot therefore be lumped together
In reply to the argument of Mr Kacker that since the Schedule to the Regulation Order refers to the contract demand  which expression denotes the original contract demand as reduced by the provisions of both the Regulation Order and the Generation Order leading to the conclusion that the provisions regarding the payment of penal charges take into account both the Orders together Mr Gupta contended that although it is true that by reason of the Generation Order the contract demand is reduced but it cannot be said that a new contract comes into existence for the reduced amount to justify the argument of Mr Kacker because the reduction is as a result of operation of law
In other words the reduced amount cannot be termed as contract  demand as it is in supersession of the contract demand
The contract demand therefore remains the same as before although there is introduced a statutory bar from drawing it in full measure
Applying this logic it was argued by the learned gcounsel that the Generation Order has to be kept apart while working out the effect of the Regulation Order
He also referred to the subsequent Regulation Order of 1978 in which the relevant Schedule prescribes 50 KW as the minimum entitlement which is inconsistent with the Board s case
It is urged that the argument on behalf of the Board that the two Orders have to be read together must therefore be rejected
The reply of Mr Kacker is three fold he point was not taken in the writ application before the High Court nor in the grounds before this Court and since it is not a pure question of law it should not be allowed to be raised in the argument ii the two Orders were issued on the same date with the common object to remedy the same problem as is evident from their preambles and so they cannot be read in PG NO 1012 isolation and iii in any event the Electricity Board in levying and making the impugned demand must be deemed to have exercised its power under s49 of the 1948 Act which it is certainly entitled to
Gupta said that it was not right to suggest that the point was not raised in the High Court
He placed before us the review petition filed in the High Court after the disposal of the writ case and relied on the statement in paragraph 3 of the judgment disposing of the review petition
He stated that the written arguments of the Company consisted of three parts under the heads list of dates notes of argument  and a reply 
Mr Gupta fairly conceded that the point was not taken in the writ petition before the High Court and he was not in a position to assert that it was actually argued on behalf of the Company in the first argument addressed before the High Court
but he claimed that the Company did press the point during the final reply
He could not deny that the point was not taken when the present appeals were filed in this Court
The judgment of the High Court does not deal with the point
In the circumstances the question arises as to whether the question should be allowed to be urged now and if so how should it be answered 
35 Mr Gupta contended that merely because the two Orders are issued under the same provision of law on a particular date they cannot be dovetailed
The similarity in the preamble of the two Orders is described as not great consequence as it merely borrows the language from s22B
Many Orders are issued under section 3 of the Essentila Commodities Actthe argument proceeds and it cannot there fore be suggested that the penalty imposed in one has to be applied to the other without express language to that effect in either of two Orders
We do not think in view of the fact that the point was not taken on behalf of the Company while instituting the writ application in the High Court and filing the present appeals in this Court it should be allowed to be urged at the hearing
Let us assume that the argument of Mr Gupta is correct
Immediately the next question would arise as to whether the Board is otherwise authorised in law to levy and demand charges for the excess electricity at the higher rate and if so whether the Board can be said to have exercised its power in this regard
Mr Kacker contended that apart from the power of the state Government to limit the supply of electricity to the consumers by an order under section 22B and direct payment of penal charges for excess consumption the Board is also empowered to impose sanctions by charging enhanced tariff and the authority to do so is derived both under section 493 PG NO 1013 of the 1948 Act and section 491 read with the original argeement
The relevant provisions are quoted below 49
Provision for the sale of 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          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 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
Reliance was placed on several decisions of this Court of the High Courts
It was further contended that it is not essential for the Board to frame regulations tot the exercise of such power
The leaned counsel appears to be right
In Adoni Cotton Mills  case supra the State Government had made an order under section 22B of the 1910 Act limiting the supply to 75 of the previous consumption as was done in the present case and directed the payment of punitive rates for excess consumption
The Board made supplementary orders for placing further onerous conditions on certain groups of consumers
This was challenged before the High Court inter alia on the ground that since the State Government had already acted under section 22B the Board could not further pass supplementary orders and that in any event since the Board had not made regulations laying down the principles under section 79j of the 1948 Act the orders were bad
Both the points along with several others raised by PG NO 1014 the appellant in that case were rejected by this Court
Referring to section 491 of the 1948 Act the Court observed that the power to enhance the tariff is included in the Section and the expression that the Board may supply electricity  upon such terms and conditions as the Board thinks fit in section 491 iS related to the terms and conditions of the agreement between the parties
Sub section  1 confers power on the Board to supply electricity upon such terms and conditions as it thinks fit and the terms and conditions include the power of the Board to enhance the rates
section 493 permits the Board to fix different rates for the supply of electricity having regard to certain conditions mentioned therin and  any other relevant factors
It was held that the expression any other relevant factors could not be considered ejusdem generis because there is no genus of the relevant factors
In New Central Jute Mills Co Ltd vs UP State Electricity Board supra the situation again was similar to the present case
The argument pressed before the Supreme Court inter alia was that the Board had no authority to make the demand in excess of the agreed rate under the agreement
Repelling the contention the Court observed in paragraph 4 of the judgment that the agreement itself did not envision the supply of electricity in violation of the ban imposed by the State Government in exercise of its power under section 22B of the 1910 Act nor did the agreement stipulate the rate at which such supply should be charged if notwithstanding the ban against the supply a consumer drew electricity in excess of the permissible quantity
In the circumstances the Board was justified in invoking the power under section 493 of the 1948 Act which authorised it to supply electricity by charging different tariff having regard to certain conditions and  any other relevant factors
section 493 was interpreted to be wide enough to cover a situation where electricity in excess of the quantum is drawn in disregard of the ban imposed under section 22B of the l9 10 Act
We do not consider it necessary to multiply the decisions as there does not appear to be any doubt that either under section 491 of the 1948 Act read with the agreement or under section 493 or under both the provisions the respondent Board is fully authorised to levy and to make a demand at a higher rate than the usual tariff
It is also clear that it is not essential for the Board to make regulations indicating the basis for such levy before making the demand
The appellant has not been able to successfully show before us that the power by the Board has to be exercised in a particular manner and by adopting a particular mode
If it is assumed that a particular formality has to be completed before a demand can be legitimately raised the appellant cannot be allowed to claim now that the same is lacking in the present case in the absence of a proper pleading in the original writ petition before the High Court
If the point had been raised in time the respondent Board could have placed relevant materials on the issue
If at the end of the hearing of the case in the High Court the point was mentioned in the appellant s final reply and included in the PG NO 1015 last instalment of its written argument it cannot cure the defect in the pleading specially when the judgment of the High Court dismissing the writ application does not deal with the point
In that view it is not necessary to test the correctness of the argument of Mr Kacker that the appellant s entitlement to receive the quantum of electricity from the Board at the normal tariff can be determined only by a combined reading of the two Orders
We do not therefore consider it necessary to decide as to what would have been the precisely correct answer if the point had been properly raised before the High Court at the appropriate stage
We do not find any merit in any of the points urged on behalf of the appellant
We were informed by the learned counsel for the parties that the appellant does not accept the correctness of the calculations in the letter P  series and the question is being examined by the High Court in a pending case
The appellant also asserts that even during the period commencing from November 1979 the Company had pleaded for emergency supply
The High Court has in the present case directed the prayer for emergency supply to be considered on merits
Since these questions are not involved in the present appeals arguments relating to these points have not been addressed before us
We in the circumstances make it clear that any observation made in the present case shall not be treated to have decided those points which are the subject matter of a pending case in the High Court
It was also pointed out at the Bar that several interim orders were issued by this Court during the pendency of the present appeals and final direction should be given in regard to them
While granting special leave this Court by its order dated 5111982 directed the appellant Company as condition for interim relief of restoration of electric connection to pay a sum of Rs5000000 within a fortnight and another sum of Rs 15000000 within six months with interest from l 11983 at the rate of 12 per annum until payment
The future payment of the electricity bills was ordered to be made within four weeks from the service of the bills
The Court also said that the applications made by the appellants for consideration of emergency supply of the electricity should be expeditiously disposed of by the Board on merit and all payments by the appellants will be subject to adjustment in the light of the decision on the emergency applications
By the order dated 24111982 the time for payment of Rs5000000 was extended to 6121982
With respect to the payment of Rs 15000000 the Court by its order dated 651983 permitted the amount to be deposited in PG NO 1016 two equal instalments
The Court also said that if it was ultimately found that the appellant had paid any amount in excess of the total liability the Board shall repay such excess amount with interest at the rate of 12 per annum
By a subsequent order dated 2341984 the appellant was required to pay a sum of Rs 12800000 to the Board by the 10th of May 1984 and to keep the bank guarantee alive till the final disposal of these appeals as condition for continuance of the interim order
During the hearing of the appeal a grievance was made on behalf of the respondent Board that the bank guarantee had not been effectively renewed and the learned counsel for the appellant undertook on behalf of the Company to correct the defect
Subsequently it was stated at the Bar that proper bank guarantee had been furnished in accordance with the Court s direction
In view of our present decision the respondent Board besides being entitled to retain the amount already paid to it in pursuance of this Court s direction is further entitled to enforce the bank guarantee
The appellant Company therefore must arrange to make the payment withount delay failing which the Board shall be entitled to take steps for enforcement of the bank guarantee
The dispute regarding the appellant s claim to receive emergency supply is pending before the High Court
The appellant shall be entitled to adjustment in the light of the final decision on this point


Summary:
The respondents sixteen in number were members of a riotous mob comprising 4050 persons who were armed with deadly weapons
They along with others went inside the complainant s oil mill where respondent No 1 Laisal Haque opened fire with his pipegun at Gulam Rabbani which ultimately resulted in his death
They also assaulted other persons inside the mill
Forty two persons were arraigned to stand their trial under section 148 and sections 302 and 324 read with section 149 IPC
The Additional Sessions Judge also framed a separate charge against respondent No 1 Laisal Haque under section 302 simpliciter and convicted him under section 148 as well as under section 302
The Additional Sessions Judge convicted the other respondents under section 147 or section 148 and section 324 read with section 149 and acquitted the remaining 26 accused persons
The High Court in appeal directed retrial of the respondents on the ground of material defect in the framing of the charges which had occasioned a failure of justice
The High Court held that there was no warrant of framing a separate charge against respondent No 1 under section 302 simpliciter without making that charge as an alternative charge 
Allowing the appeals and remitting the appeals to the High Court for a decision afresh on merits it was HELD 1 The High Court was wrong in its view that there was a fundamental defect in the framing of the charges
This was clearly a case to which section 221 of the Code of Criminal Procedure 1973 which is an exception to section 218 of the Code applies
875G H PG NO 870 PG NO 871 2 Section 218 embodies the general rule as to the trial of accused persons which provides for separate trial of each accused person for every distinct offence and is based on the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet
Section 221 applies to a case only when from the evidence led by the prosecution it is doubtful which of several offences has been committed by the accused person
There must not be any doubt as to a single act or series of acts  which constitutes the transaction that is to say there must not be any doubt as to the facts
The doubt must be as to the inference to be deduced from these facts thus making it doubtful  which of several offences the facts which can be proved will constitute
In the instant case there is no doubt as to the facts
875H 876A B 3 There are serious infirmities in the order rendered by the High Court
Section 215 of the Code provides that no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission and it had occasioned a failure of justice
There is no material on record in the instant case on which the High Court could have reached to such a conclusion878A B 4 In judging a question of prejudice as of guilt the Court must act with a broad vision and look to the substance and not to the technicalities and their main concern should be as to see whether the accused had a fair trial whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself
That test is clearly fulfilled in the facts and circumstances of the instant case
878F H Willie William Slaney vs State of Madhya Pradesh  KC Mathew  Ors
vs State of Travancore Cochin   Gurbachan Singh  Ors
vs State of Punjab AIR 1957 SC 623 Eirichh Bhuian  Ors
vs State of Bihar 1963 Suppl
2 SCR 328 and State of Maharashtra vs Ramdas Shrinivas  Anr   referred to
5 The High Court failed to appreciate that in an appeal by the respondents under section 3742 of the Code the order of acquittal passed by the Additional Sessions Judge as against the 26 other accused could not be interfered with
879B C
PG NO 872 6 The High Court also failed to appreciate that there cannot be a piecemeal trial
The retrial directed by the High Court must necessarily revise the prosecution and must result in a trial de novo against the 42 accused
The 26 other accused acquitted by the Additional Sessions Judge were not impleaded as parties to the appeals before the High Court
In the absence of an appeal preferred by the State Government against their acquittal the High Court could not under section 386b on an appeal by the respondents against their conviction alter the acquittal nor can there be a splitting up of the trial
879C E State of Karnataka vs Narsa Reddy   referred