Case: The Amalgamated Electricity Co. Ltd Vs. N.S. Bhathena And Another

Sarkar, J.1. The appellant is a company carrying on business as supplier of electricity in a certain area in the State of Bombay. The respondents Bathena and Tendulkar were consumers of electrical energy supplied by the appellant. The present appeals arise out of disputes between these consumers and the appellant concerning the legality of the charges made by the appellant for electricity supplied by it.2. The supply of electrical energy is controlled by two statutes and the questions involved in the present cases will turn on them. These statutes are Electricity Act, 1910 and the Electricity (Supply) Act, 1948. I will first consider the Act of 1910. Section 3 of this Act gives power to the Government to grant a licence to a party to supply electrical energy in any specified area and to prescribe in the licence the limits of price to be charged by it for the supply. This section further provides that the provisions in the Schedule to the Act would, unless otherwise directed, be deemed, to be incorporated in the licence. Paragraph XI of that Schedule states that a licensee would not be entitled to exceed the limits of price fixed in his licence. This paragraph, however, gives power to the Government to alter these limits on the recommendation of an Advisory Board appointed under S. 35 of the Act. It is not necessary to refer to the other provisions of this Act.3. The appellant had been supplying electricity under a licence issued in 1932 by the Government of Bombay under the Act of 1910. The licence fixed the limits of the prices which the appellant could charge but these limits were altered by an order made by the Government on December 30, 1942 under paragraph XI of the Schedule and stood thereafter as follows:A. For lights and fans annas -/5/- (31 nP.) per unit and,B. For motive power. (i) upto 4 B.H.P. anna -/1/- (0.06 nP.) per unit in addition to a standing charge of rs. 2/- per month per B.H.P. connected, (ii) over 4. B. H.P.-/-/9 pies (0.05nP.) per suit in addition to the standing charge at the same rate of Rs. 2/- per B.H.P. per month.4. Due to the conditions brought abut by the Second World War, certain orders were made from time to time permitting the licensees to add a surcharge not exceeding -33 1/2 per cent to the existing charges. Lastly, on September 30, 1946 an Act was passed by the Bombay legislature called the Bombay Electricity (Surcharge) Act. 1946, hereinafter referred to as the Surcharge Act, which continued the surcharges specified therein for a period of three years. This Act expired on September 30, 1949. It is said that even thereafter the appellant continued charging the consumers at rates which included the surcharge under the Surcharge Act, and, therefore, at rates in excess of those fixed by the Order of December 30, 1942 and that was illegal. The appellant on its part claims that its charges after the expiry of the Surcharge Act were all justified under the Act of 1948 the relevant provisions of which came into force on September 10, 1948. This Act will be referred to later.5. The respondent Bathena commenced taking electricity from the appellant sometime in 1954. Soon thereafter he started disputes about the legality of the charges realised from him by the appellant in respect of energy supplied for purposes of motive power of over 4 B.H.P. and in 1955 filed a suit against the appellant for refund of amounts alleged to have been illegally collected from him in excess of the limits fixed by the Order of December 30, 1942, namely, an excess standing charge of 0-69 nP. per B.H.P. per month over that fixed by the Order of December 30, 1942 and a similar excess unit charge of 0-01 nP. per unit. That suit is still pending and with the disputes involved in it I am not concerned in this judgment.6. On September 25, 1958, the appellant gave notice to its customers that with effect from November 1, 1958 it would charge for motive power 0-09 nP. per unit plus a standing charge of Rs. 2.69 per B.H.P. per month. The unit charge mentioned in the notice was in excess of that prescribed in the order of December 30, 1942 by 0-04 nP. per unit. There is no dispute that this notice revised the unit charge existing at its date but it seems that it did not enhance the then existing standing charge. The notice gave rise to further disputes as a result of which two suits were filed against the appellant on March 31, 1959 in the court of the Civil Judge, Belgaum. The first of these suits was filed by the respondent Bathena acting for himself and all other consumers of electricity supplied by the appellant for purposes of motive power over 4 B.H.P. for the following reliefs:"(a) That a declaration be granted by this Honble Court that the standing charges of 2.69 nP. per B.H.P. per month and the excess sum of 0-04 nP. per unit of energy consumed, for motive power whether connected or otherwise, are illegal and unauthorised, inoperative and ultra vires of the Defendant company and the Plaintiff is not bound to pay the same and that the Defendant Company have no authority to control or interfere in the supply of electric energy or its use, and that the restriction imposed in Notice dated 25-9-58 are illegal, bad in law, and(b) an injunction restraining the Defendant-Company, its servants its agents or its representatives from levying and recovering the excess and illegal charges, i.e., 6 nP. Per unit of consumed energy from the plaintiff, by means of any coercive measures and from interfering or controlling with the electric supply.The other suit was filed by the respondent Tendulkar also in a representative capacity in respect of the charge of 0-37 nP. per unit for electricity supplied for lights and fans, and it sought the following reliefs."(a) That a declaration be granted by this Honble Court that the excess sum 6 nP. per unit of energy consumed for lights and fans are illegal and unauthorised, inoperative and ultra vires of the Defendant-company and the plaintiff is not bound to pay the same.(b) An injunction restraining the Defendant-Company its servants, its agents or its representatives from levying and recovering the excess and illegal charges, i.e., 6 nP. per unit of consumed energy from the plaintiff by means of any coercive measures and from interfering or controlling with the electric supply."Various persons were on their own applications later added as plaintiffs in these suits.7. The suits were decreed by the trial Court but that decision was reversed on appeal by a District Judge. On second appeal, however, the High Court of Mysore set aside the decision of the learned District Judge and restored that of the trial Court. The present appeals are against the judgment of the High Court.8. I will first take up the suit relating to the charges for motive power. To clear the ground it may be stated that this suit is not concerned with any charge made prior to the date that it was filed. As earlier stated, it asks for a declaration and an injunction. An injunction cannot of course be in respect of a past period and the declaration sought must also, therefore, be confined to the future. In any case since the declaration is sought in respect of the charges as revised by the said notice as from November 1, 1958 it is clear that no question as to the legality of any charge made before November 1, 1958 was sought to be raised. It would have been noticed that the suit was concerned with disputes about two charges, namely, the unit charge of 0.09 nP. per unit fixed by the notice of September 25, 1958 and the standing charge of Rs. 2.69 per B.H.P. per month.9. I will first consider the dispute about the unit charge. Could the appellant enhance the charge? It is not disputed that a licensee can on his own enhance his charges upto the maximum limit fixed in the licence or otherwise fixed by the Government. The dispute is as to the right to enhance them beyond that limit and in this judgment I will be discussing such enhancement only. It is not in controversy that under the Electricity Act of 1910 it could not do so but as already stated, the appellant bases its claim to enhance the charge on the Electricity (Supply) Act, 1948 as amended by Act 101 of 1956 with effect from December 30, 1956. It will be noticed that this amendment was in force when the revised rate came into force under the notice of September 25, 1958. The relevant provisions of this Act so amended are these:S. 57."The provisions of the Sixth Schedule and the Seventh Schedule shall be deemed to be incorporated in the licence of every licensee, not being a local authority-(a) in the case of licence granted before the commencement of this Act. from the date of the commencement of the licensees next succeeding year of account; and(b) in the case of a licence granted after the commencement of this Act, from the date of the commencement of supply,and as from that said date, the licensee shall comply with the provisions of the said Schedules accordingly, and any provisions of the Indian Electricity Act, 1910 (9 of 1910), and the licence granted to him thereunder and of any other law, agreement or instrument applicable to the licensee shall, in relation to the licensee, be void and of not effect in so far as they are inconsistent with the provisions of Section 57A and the said Schedules.Section 57A."(1) Where the provisions of the Sixth Schedule and the Seventh Schedule are under S. 57 deemed to be incorporated in the licence of any licensee, the following provisions shall have effect in relation to the said licensee, namely:(a) the Board or where no Board is constituted under this Act, the State Government -(i) may, if satisfied that the licensee has failed to comply with any of the provisions of the Sixth Schedule; and(ii) shall, when so requested by the licensee in writing, constitute a rating committee to examine the licensees charges for the supply of electricity and to make recommendations in that behalf to the State Government.x x x x(c) a rating committee shall .....report to the State Government.....making recommendations .....regarding the charges for electricity which the licensee may make.....(d) within one month after the receipt of the report under clause (c), the State Government....may....make an order in accordance therewith fixing the licensees charges for the supply of electricity.....and the licensee shall forthwith gives effect to such order:Sixth Schedule(1) "Notwithstanding anything contained in the Indian Electricity Act, 1910 (9 of 1910), and the provisions in the licence of a licensee, the licensee shall so adjust his rates for the sale of electricity whether by enhancing or reducing them that his clear profit in any year of account shall not, as far as possible, exceed the amount of reasonable return;x x x xx x x x10. Now the first paragraph of the Sixth Schedule to the Act of 1948 clearly gives a licensee the power to adjust and therefore also to enhance his rates on his own. It, however, fixes a limit for the enhancement and that is, so as not as far as possible, to make his "clear profit for the year exceed the amount of "reasonable return. The methods of determining "clear profit and "reasonable return are stated respectively in cls. (2) and (9) of paragraph XVII of the Schedule but it will not be necessary for me to go into their details. Now under paragraph I of the Sixth Schedule the rates can be enhanced "Notwithstanding anything contained the Indian Electricity Act, 1910 (9 of 1910), and the provisions in the licence of a licensee. Nothing to the contrary, therefore, contained in the Act of 1910 or the licence can make the enhancement of the rates by the licensee in terms of this paragraph illegal. It would follow that the power under paragraph I of the Sixth Schedule would justify an enhancement of the rate beyond that fixed by the licence or any order of the government. This seems to me to be perfectly plain. It will be remembered that paragraph XI of the Schedule to the Act of 1910 prohibited a licensee from charging a rate in excess of the maximum fixed by the licence. That provision, however, was repealed by Act 101 of 1956. This was obviously done because it was realised that paragraph I of the Sixth schedule to the Act of 1948 made the prohibition in paragraph XI of the Schedule to the Act of 1910 quite ineffective. Then as we have S. 70(1) of the Act of 1948 which provides that"No provision of the Indian Electricity Act, 1910 (9 of 1910), or of any rules made thereunder or of any instrument having effect by virtue of such law or rule shall, so far as it is inconsistent with any of the provisions of this Act, have any effect.This provision also supports the view that the power to enhance the rates given by the act of 1948 is not in any way affected by anything in the Act of 1910 or the licence granted under it.11. Learned counsel for the respondents however, first contended that the power to enhance cannot be exercised by the licensee on its own. If it wants an increase in its rates it has first to ask the Government under S. 57A of the Act of 1948 to constitute a rating committee. This contention appears to me to be entirely unfounded. No doubt a licensee can ask the Government to constitute a rating committee under that section and if the Government does so and fixes rates on the basis of the recommendations of that committee the licensee would be bound by such fixation of rates. But I find nothing in S. 57A or anywhere else in the Act of 1948 to lead to the view that the licensee cannot increase his rates except after a rating committee has recommended such increase and the Government has permitted it. Such a view would largely render paragraph I of the Sixth Schedule nugatory. Nor do I think that there is any conflict between S. 57A and paragraph I as was contended by the respondents. Quite clearly S. 57A gives a licensee the power to call for the constitution of rating committee. If he does so, he does not take the risk of fixing an enhanced rate on his own with the possible consequences of having to refund part of the amounts collected under provisions to which reference will be made later. That seems to be the only reason why the licensee has been given the right to ask for the constitution of a rating committee. If he does not mind taking the risk of these consequences, I find nothing in the Act of 1948 requiring him to ask for the constitution of a rating committee before he can proceed to enhance the rates on his own.12. Learned counsel for the respondents then relied on sub-s. (2) of 70 of the Act of 1948 which states that :"Save as otherwise provided in this Act, the provisions of this Act shall be in addition to, and not in derogation of, the Indian Electricity Act, 1910."He contended that this showed that an attempt has to be made to harmonise the two Acts and therefore, the power to enhance the rates given by the Act of 1948 must be confined to an enhancement upto the maxima limits specified in the licence granted or any order made by the government. I am wholly unable to agree that sub-s. (2) of S. 70 of the Act of 1948 requires the two Acts to be harmonised. In fact sub-s. (1) of S. 70 of the Act of 1948 provides that when there is inconsistency between the two Acts, the earlier Act is not to have effect. There can be no question of harmonising unless there is inconsistency and sub-s. (1) says what is to happen in the case of inconsistency; it is that one is to give way to the other and not that an attempt should be made to harmonise the two. Furthermore sub-s. (2) of S. 70 of the Act of 1948 says that "Save as otherwise provided in this Act" the later Act is not to be read as in derogation of the earlier Act. When therefore, it is otherwise provided in the Act of 1948, this Act might be read as in derogation of the Act of 1910. Now S. 57 of the Act of 1948 and paragraph 1 of the Sixth Schedule to it clearly provide that the provisions therein contained are to override the provisions of the earlier Act. It would thus be against the express terms of the Act of 1948 to attempt to harmonise the power to enhance the rates given to the licensee by it with any of the provisions of the licence or the Act of 1910.13. Lastly, learned counsel for the respondents relied on Babulal Chaganlal Gujerathi v. Chopda Electric Supply Co. Ltd., ILR (1955) Bom 42 : (AIR 1955 Bom 182 ) to support his contention that under paragraph 1 of the Sixth Schedule to the Act of 1948 a licensee had the power to enhance the rates only upto the maxima limits specified in the licence or governments order but not beyond those limits. It was no doubt so decided in that case but then it turned on Paragraph 1 of the Sixth Schedule as it stood before the amendment in 1956. Before the amendment, that paragraph did not contain the words "Nowwithstanding anything contained in the Indian Electricity Act, 1910 (9 of 1910) and the provisions in the licence of a licencee."It seems to me plain that these words have made a material change in the provisions and as it now stands, it cannot be said that the enhancement permitted must be restricted to the limit fixed in the licence or an order by the government. The decision cited, therefore, is of no assistance in interpreting Paragraph 1 of the Sixth Schedule as it stands after the amendment in 1956. Whether Chaganlals case. ILR (1955) Bom 42 : (AIR 1955 Bom 182 ) was correctly decided in view of the terms of Paragraph 1 as it stood before the amendment is not a question which arises for determination in this case and on that question I express no opinion. I think that it must be held on the terms of Paragraph 1 of the Sixth Schedule to the Act of 1948 as it stood at the time of the notice that a licensee had power to enhance the rates and such power was not limited to an enhancement up to the limits fixed by the licence or otherwise by any order of the government.14. On the question whether under Paragraph 1 of the Sixth Schedule to the Act of 1948 a licensee could enhance his rates beyond the limits fixed by the government or in the licence the High Court took the same view as I have done and held that the respondents could not claim any relief solely on the ground that the rates charged had exceeded those limits. The High Court, however, observed that the appellant had failed to establish that it had revised its rates as provided by the Act of 1948 before its amendment in 1956 and, therefore, held that the appellant must be taken to have illegally continued the surcharge which it was levying under the Surcharge Act. 1946 even after its expiry on October 1, 1949. It is somewhat difficult to understand these observations. As I have earlier said, no question as to the legality of any charge made before the suit or at any rate, before November 1, 1958, arises in this case. Therefore, even if the appellant had not revised its charge prior to the amendment, no grievance on that account can be made on the plaint on which the present suit is based. Furthermore I do not see why the burden of proving that those charges were the charges duly revised under the Act of 1948 prior to its amendment should be upon the appellant. No issue on this question also appears to have been framed by the trial Court at all. Even the plaint does not say that what the appellant had done was to continue an illegal charge. I repeat that whether the charges made before November 1, 1958 were illegal or not, is not a question that arises for decision in these cases. Admittedly the notice of September 25, 1958, revised the unit charge and, therefore, in fact there was no continuation of an earlier illegal charge, assuming the earlier charge to have been illegal.15. The High Court, however, also held that the appellant was under a statutory duty under the Act of 1948 to adjust its rates so that its clear profit did not exceed the amount of reasonable return and it had not established that it had done so after the Act was amended, nor had it proved that the enhancement mentioned in the notice of September 25, 1958 would not result in its clear profits exceeding the amount of reasonable return. Lastly, the High Court observed that "Even otherwise the enhancement is the continuation of the illegal charges and that by itself is invalid." It was on these grounds that the High Court decided the cases in favour of the respondents. I am unable to agree with the High Court on any of these points.16. I will take the last point first. With respect to the learned Judges of the High Court. I do not understand what exactly is meant by the enhancement being the continuation of the illegal charge. That there was a revision of the rates by the notice of September 25, 1958 is the respondents own case in the plaint. I will assume that the revision raised the rates to the figures that were chargeable under the expired Surcharge Act of 1946. But the identity of the figures cannot by itself make the enhancement illegal if it was legal under the Act of 1948 as amended. Indeed as there was admittedly a revision there was really no continuation of a previous charge. This point must, therefore, be rejected.17. The other points on which, as stated above, the High Court based itself, appear to me to be equally untenable. These points are really one and that is whether the appellant has established that the revised rate fixed by the notice of September 25, 1958 would not make its clear profit exceed the amount of reasonable return. As already stated, it is admitted in the plaint that there was a revision of the unit charge by the notice. So it is not in dispute that after the amendment of Paragraph 1 of the Sixth Schedule the appellant had revised its unit charge.I am unable to agree that the onus of establishing that the revision did not make the appellants clear profit exceed the amount of a reasonable return should be on the appellant. I think that onus should be on the respondents because it is they who allege that "the rates mentioned by the defendant are exceeding the reasonable return". The more serious objection to this point, however is that it does not seem to me that it is competent for a civil court to go into the question whether the enhanced rates are illegal because they take the clear profit beyond the amount of the reasonable return, and to give any relief on that basis. The reasons for this view will now be stated.18. Paragraph 1 of the Sixth Schedule to the Act of 1948 no doubt prohibits the licensee from enhancing his rates beyond a figure which would make his clear profit exceed the amount of reasonable return. The Act, however, at the same time provided the consequences of a breach of the prohibition. Thus the fourth and the last proviso in Paragraph 1 of the Sixth Schedule to the Act of 1948 states. "Provided further that if the rates of supply fixed in pursuance of the recommendations of a rating committee constituted under S. 57A are lower than those notified by the licensee under and in accordance with the proceeding proviso, the licensee shall refund to the consumers the excess amount recovered by him from them". One consequence of the breach of the prohibition therefore, is the liability to refund the difference between the enhanced rate which has to be notified under the third proviso and that fixed by the rating committee. But a rating committee may not have been constituted, for it is constituted only where the licensee wants it, or the Government if entitled to constitute it under S. 57A (1) of the Act of 1948. Where a rating committees is not constituted, there is no liability to refund but the provisions of Paragraph II of the Schedule would then apply and this equally whether there is an enhancement of the charge under Paragraph 1 and where there is none. That paragraph is in these terms :Paragraph II (I). If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return one-third of such excess, not exceeding five per cent of the amount of reasonable return, shall be at the disposal of the undertaking. Of the balance of the excess, one-half shall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half shall either be distributed in the form of a proportional rebate on the amounts collected from the sale of electricity and meter rentals or carried forward in the accounts of the licensee for distribution to the consumers in future, in such manner as the State Government may direct.This provision shows that where there was a revised rate and that rate exceeded the limit prescribed in Paragraph I, a consumer might get a refund of a part of the excess but that too only at the discretion of the government. He had clearly no right to any refund even in such a case. Quite obviously if the consumer could obtain refund of the whole excess as determined by a civil court, these provisions would be completely meaningless. Equally obviously if a civil court could decide that the charge made had exceeded the limit and was, therefore, illegal, it could also direct a refund of the amount illegally realised. Therefore, it seems to me clear that the question of a breach of the terms of the first part of Paragraph I of the Sixth Schedule was not intended to be canvassed in a civil court; a civil court has no power to decide that question nor can it give any relief in respect thereof. Indeed if this were not so; the consequences would be most anomalous. If the civil court could decide the question whether the enhanced rate resulted in the clear profit exceeding the amount of the reasonable return, then it is conceivable that different courts might come to different conclusions on different materials placed before them and the result of that would be to destroy the uniformity of rates chargeable by a licensee. Such a situation could not have been intended. Again the Act of 1948 did not give to the consumer the right to have a rating committee constituted. This was obviously because it would be impossible to work a public utility concern like an electric supply business if every consumer could get a rating committee to go into the question of rates. There may then be a continuous succession of rating committees and there would be no fixity of the rates chargeable. The convenience of all had to be kept in mind. Power was hence given only to the Government to take steps when a licensee committed a breach of its obligations. Therefore, in my opinion, the High Court was in error in holding that the appellant should have shown that the enhancement did not result in its clear profit exceeding the amount of reasonable return and in deciding in favour of the respondents on that basis. I hold that the respondents were not entitled to canvass in a civil court any question as to the rates of a licensee being in excess of the limit prescribed in Paragraph 1 of the Sixth Schedule to the Act of 1948. A civil court could not declare that the rates charged by a licensee were illegal as they made its clear profit exceed the reasonable return. If there was such excess, the relief could be obtained only if the Government set up a rating committee, a refund became due thereupon under the last proviso to Paragraph 1 of the Sixth Schedule to the Act of 1948 or if relief was available under Paragraph II (1) of that Schedule.19. Then it was said that the revision by the notice of September 25,1958 was bad in any case because under the third proviso to Paragraph 1 in the Sixth Schedule there could be no revision of rates under that paragraph unless a notice in writing of the intention to enhance was given by the licensee to the Government or to the State Electricity Board and no such notice was in fact given. That proviso no doubt require a notice to be given but the contention is nonetheless clearly without foundation for as I shall immediately show such a notice was in fact given. Now Ex. 62 is a copy of a letter received by the appellant from the Secretary of the State Electricity Board and it refers to a letter. "No AMAL/BEL/C2; dated 7-8-1958" written by the appellant to the Board and the letter last mentioned, which is Ex. 60, is the notice by the appellant to the Board expressing its intention to revise the rates. It is quite clear, therefore, that notice had been given to the Board of the proposed enhancement. This point, it may be stated, does not seem to have been taken in the High Court.20. It was also said that the notice was bad as it did not state that the standing charge was being increased from Rs. 2/- to Rs. 2.69 per B.H.P. per month. This again is an unfounded contention for the standing charge had not been increased by the notice at all. Indeed the plaint itself in Paragraph 5 states that prior to November 1, 1958 the appellant had been levying standing charges at the rate of Rs. 2.69. So there was no enhancement of this charge by the notice and, hence no question of giving any notice of any enhancement of the standing charge arises.21. Lastly, it was said that in the notice to the consumers it was stated that the power supply would be restricted between certain hours but the notice to the government did not mention this restriction in the supply. The notice to the consumers no doubt stated that the revised unit charge would be in respect of restricted hours of supply but that does not make the contention of any substance. There was nothing in the notice to show that the supply would be restricted. Further it is neither alleged in the plaint nor does it appear from anything on the record, that there was in fact any restriction in the supply. That being so, the failure to give notice to the government of the restriction in the supply is wholly immaterial. I have not, further, been shown any provision under which notice to the government of a restriction in the supply of electricity is necessary. It is certainly not required by anything in Paragraph 1 in the Sixth Schedule to the Act of 1948.22. I am, therefore, of the opinion that there is no reason to hold that the appellant was not entitled to levy the charge mentioned in its notice of September 25, 1948.23. I come now to the standing charge of Rs. 2.69 per B.H.P. per month. As in the case of the other charge and for the same reasons. I am not concerned with any question as to its legality in respect of any period prior to the suit. It has to be remembered that there is no complaint that this rate had been increased, by the notice. Lastly, as already stated, a civil court cannot go into the question whether a charge is illegal inasmuch as it has been revised to an amount exceeding the limit mentioned in Paragraph 1 of the Sixth Schedule to the Act of 1948. The only ground on which this charge is questioned is put up in Paragraph 23 of the plaint in these words : "any standing charges along with the usual Unit Charges is against equity and law, it being double charge for the industry to pay for the enrichment of the defendants"; the legality of the standing charge is not challenged on any other ground. Now where a charge is permitted by a statute no question of its being inequitable can be raised in a court of law neither can the question whether the charge is in excess of the limit justified by the statute be canvassed in such a court. Therefore, the respondents cannot in these cases challenge the legality of the standing charge.24. What I have said so far disposes of the appeal in the suit concerning the rates charged for the supply of motive power. That appeal must therefore be allowed.25. The appeal in the suit with regard to the charges for lights and fans can be disposed of substantially on the grounds earlier discussed. The High Court also placed its decision in respect of this matter on the same ground on which it had disposed of the other matter. The only point made in this case is that the appellant had been wrongfully charging a rate in excess of the limit fixed by the order of December 30, 1942 by 0-06 np. per unit. On this basis a declaration that the excess charge was illegal was sought and also an injunction restraining the appellant from levying it. It will be observed that in this case there was no notice given by the appellant of any increase in the charge. No question of the charge being illegal by reason of any enhancement, therefore, arises. The only complaint is that the charge is illegal as it is in excess of the limit fixed by the government. As I have said, under Paragraphs I and II of the Sixth Schedule to the Act of 1948 a licensee can charge any amount so that his clear profit does not exceed his reasonable return and if he exceeds the limit he only exposes himself to the consequences mentioned in them and a consumer cannot go to a court of law for relief on the ground that the licensee had exceeded this limit. Therefore, the respondent cannot ask for any relief in a civil court on the basis that the appellant had exceed the limit. As in the other case, in this case also I am not concerned with the legality of any charge made prior to the date of the suit; the only question is the legality of the charge made since March 31, 1959. That question has to be decided under Act of 1948 as amended in 1956. It follows that in this case also the respondents can get no assistance from the decision in Babulal Chaganlal, ILR (1955) Bom 42 : (AIR 1955 Bom 182 ) even if that case was rightly decided.

Decision:
1[ds]This provision also supports the view that the power to enhance the rates given by the act of 1948 is not in any way affected by anything in the Act of 1910 or the licence granted undercontention appears to me to be entirely unfounded. No doubt a licensee can ask the Government to constitute a rating committee under that section and if the Government does so and fixes rates on the basis of the recommendations of that committee the licensee would be bound by such fixation of rates. But I find nothing in S. 57A or anywhere else in the Act of 1948 to lead to the view that the licensee cannot increase his rates except after a rating committee has recommended such increase and the Government has permitted it. Such a view would largely render paragraph I of the Sixth Schedule nugatory. Nor do I think that there is any conflict between S. 57A and paragraph I as was contended by the respondents. Quite clearly S. 57A gives a licensee the power to call for the constitution of rating committee. If he does so, he does not take the risk of fixing an enhanced rate on his own with the possible consequences of having to refund part of the amounts collected under provisions to which reference will be made later. That seems to be the only reason why the licensee has been given the right to ask for the constitution of a rating committee. If he does not mind taking the risk of these consequences, I find nothing in the Act of 1948 requiring him to ask for the constitution of a rating committee before he can proceed to enhance the rates on hisam wholly unable to agree that(2) of S. 70 of the Act of 1948 requires the two Acts to be harmonised. In fact(1) of S. 70 of the Act of 1948 provides that when there is inconsistency between the two Acts, the earlier Act is not to have effect. There can be no question of harmonising unless there is inconsistency and(1) says what is to happen in the case of inconsistency; it is that one is to give way to the other and not that an attempt should be made to harmonise the two. Furthermore(2) of S. 70 of the Act of 1948 says that "Save as otherwise provided in this Act" the later Act is not to be read as in derogation of the earlier Act. When therefore, it is otherwise provided in the Act of 1948, this Act might be read as in derogation of the Act of 1910. Now S. 57 of the Act of 1948 and paragraph 1 of the Sixth Schedule to it clearly provide that the provisions therein contained are to override the provisions of the earlier Act. It would thus be against the express terms of the Act of 1948 to attempt to harmonise the power to enhance the rates given to the licensee by it with any of the provisions of the licence or the Act ofwas no doubt so decided in that case but then it turned on Paragraph 1 of the Sixth Schedule as it stood before the amendment in 1956. Before the amendment, that paragraph did not contain the words "Nowwithstanding anything contained in the Indian Electricity Act, 1910 (9 of 1910) and the provisions in the licence of a licencee."It seems to me plain that these words have made a material change in the provisions and as it now stands, it cannot be said that the enhancement permitted must be restricted to the limit fixed in the licence or an order by the government. The decision cited, therefore, is of no assistance in interpreting Paragraph 1 of the Sixth Schedule as it stands after the amendment in 1956. Whether Chaganlals case. ILR (1955) Bom 42   : (AIR 1955 Bom 182  ) was correctly decided in view of the terms of Paragraph 1 as it stood before the amendment is not a question which arises for determination in this case and on that question I express no opinion. I think that it must be held on the terms of Paragraph 1 of the Sixth Schedule to the Act of 1948 as it stood at the time of the notice that a licensee had power to enhance the rates and such power was not limited to an enhancement up to the limits fixed by the licence or otherwise by any order of thethink that it must be held on the terms of Paragraph 1 of the Sixth Schedule to the Act of 1948 as it stood at the time of the notice that a licensee had power to enhance the rates and such power was not limited to an enhancement up to the limits fixed by the licence or otherwise by any order of theeven if the appellant had not revised its charge prior to the amendment, no grievance on that account can be made on the plaint on which the present suit is based. Furthermore I do not see why the burden of proving that those charges were the charges duly revised under the Act of 1948 prior to its amendment should be upon the appellant. No issue on this question also appears to have been framed by the trial Court at all. Even the plaint does not say that what the appellant had done was to continue an illegal charge. I repeat that whether the charges made before November 1, 1958 were illegal or not, is not a question that arises for decision in these cases. Admittedly the notice of September 25, 1958, revised the unit charge and, therefore, in fact there was no continuation of an earlier illegal charge, assuming the earlier charge to have been illegal.15. The High Court, however, also held that the appellant was under a statutory duty under the Act of 1948 to adjust its rates so that its clear profit did not exceed the amount of reasonable return and it had not established that it had done so after the Act was amended, nor had it proved that the enhancement mentioned in the notice of September 25, 1958 would not result in its clear profits exceeding the amount of reasonable return. Lastly, the High Court observed that "Even otherwise the enhancement is the continuation of the illegal charges and that by itself is invalid." It was on these grounds that the High Court decided the cases in favour of the respondents. I am unable to agree with the High Court on any of these points.16. I will take the last point first. With respect to the learned Judges of the High Court. I do not understand what exactly is meant by the enhancement being the continuation of the illegal charge. That there was a revision of the rates by the notice of September 25, 1958 is the respondents own case in the plaint. I will assume that the revision raised the rates to the figures that were chargeable under the expired Surcharge Act of 1946. But the identity of the figures cannot by itself make the enhancement illegal if it was legal under the Act of 1948 as amended. Indeed as there was admittedly a revision there was really no continuation of a previous charge. This point must, therefore, be rejected.17. The other points on which, as stated above, the High Court based itself, appear to me to be equally untenable. These points are really one and that is whether the appellant has established that the revised rate fixed by the notice of September 25, 1958 would not make its clear profit exceed the amount of reasonable return. As already stated, it is admitted in the plaint that there was a revision of the unit charge by the notice. So it is not in dispute that after the amendment of Paragraph 1 of the Sixth Schedule the appellant had revised its unit charge.I am unable to agree that the onus of establishing that the revision did not make the appellants clear profit exceed the amount of a reasonable return should be on the appellant. I think that onus should be on the respondents because it is they who allege that "the rates mentioned by the defendant are exceeding the reasonable return". The more serious objection to this point, however is that it does not seem to me that it is competent for a civil court to go into the question whether the enhanced rates are illegal because they take the clear profit beyond the amount of the reasonable return, and to give any relief on that basis. The reasons for this view will now beprovision shows that where there was a revised rate and that rate exceeded the limit prescribed in Paragraph I, a consumer might get a refund of a part of the excess but that too only at the discretion of the government. He had clearly no right to any refund even in such a case. Quite obviously if the consumer could obtain refund of the whole excess as determined by a civil court, these provisions would be completely meaningless. Equally obviously if a civil court could decide that the charge made had exceeded the limit and was, therefore, illegal, it could also direct a refund of the amount illegally realised. Therefore, it seems to me clear that the question of a breach of the terms of the first part of Paragraph I of the Sixth Schedule was not intended to be canvassed in a civil court; a civil court has no power to decide that question nor can it give any relief in respect thereof. Indeed if this were not so; the consequences would be most anomalous. If the civil court could decide the question whether the enhanced rate resulted in the clear profit exceeding the amount of the reasonable return, then it is conceivable that different courts might come to different conclusions on different materials placed before them and the result of that would be to destroy the uniformity of rates chargeable by a licensee. Such a situation could not have been intended. Again the Act of 1948 did not give to the consumer the right to have a rating committee constituted. This was obviously because it would be impossible to work a public utility concern like an electric supply business if every consumer could get a rating committee to go into the question of rates. There may then be a continuous succession of rating committees and there would be no fixity of the rates chargeable. The convenience of all had to be kept in mind. Power was hence given only to the Government to take steps when a licensee committed a breach of its obligations. Therefore, in my opinion, the High Court was in error in holding that the appellant should have shown that the enhancement did not result in its clear profit exceeding the amount of reasonable return and in deciding in favour of the respondents on that basis. I hold that the respondents were not entitled to canvass in a civil court any question as to the rates of a licensee being in excess of the limit prescribed in Paragraph 1 of the Sixth Schedule to the Act of 1948. A civil court could not declare that the rates charged by a licensee were illegal as they made its clear profit exceed the reasonable return. If there was such excess, the relief could be obtained only if the Government set up a rating committee, a refund became due thereupon under the last proviso to Paragraph 1 of the Sixth Schedule to the Act of 1948 or if relief was available under Paragraph II (1) of that Schedule.19. Then it was said that the revision by the notice of September 25,1958 was bad in any case because under the third proviso to Paragraph 1 in the Sixth Schedule there could be no revision of rates under that paragraph unless a notice in writing of the intention to enhance was given by the licensee to the Government or to the State Electricity Board and no such notice was in fact given. That proviso no doubt require a notice to be given but the contention is nonetheless clearly without foundation for as I shall immediately show such a notice was in fact given. Now Ex. 62 is a copy of a letter received by the appellant from the Secretary of the State Electricity Board and it refers to a letter. "No AMAL/BEL/C2; datedwritten by the appellant to the Board and the letter last mentioned, which is Ex. 60, is the notice by the appellant to the Board expressing its intention to revise the rates. It is quite clear, therefore, that notice had been given to the Board of the proposed enhancement. This point, it may be stated, does not seem to have been taken in the High Court.20. It was also said that the notice was bad as it did not state that the standing charge was being increased from Rs. 2/to Rs. 2.69per B.H.P. per month.This again is an unfounded contention for the standing charge had not been increased by the notice at all. Indeed the plaint itself in Paragraph 5 states that prior to November 1, 1958 the appellant had been levying standing charges at the rate of Rs. 2.69. So there was no enhancement of this charge by the notice and, hence no question of giving any notice of any enhancement of the standing charge arises.21. Lastly, it was said that in the notice to the consumers it was stated that the power supply would be restricted between certain hours but the notice to the government did not mention this restriction in the supply. The notice to the consumers no doubt stated that the revised unit charge would be in respect of restricted hours of supply but that does not make the contention of any substance. There was nothing in the notice to show that the supply would be restricted. Further it is neither alleged in the plaint nor does it appear from anything on the record, that there was in fact any restriction in the supply. That being so, the failure to give notice to the government of the restriction in the supply is wholly immaterial. I have not, further, been shown any provision under which notice to the government of a restriction in the supply of electricity is necessary. It is certainly not required by anything in Paragraph 1 in the Sixth Schedule to the Act of 1948.22. I am, therefore, of the opinion that there is no reason to hold that the appellant was not entitled to levy the charge mentioned in its notice of September 25, 1948.23. I come now to the standing charge of Rs. 2.69per B.H.P. per month.As in the case of the other charge and for the same reasons. I am not concerned with any question as to its legality in respect of any period prior to the suit. It has to be remembered that there is no complaint that this rate had been increased, by the notice. Lastly, as already stated, a civil court cannot go into the question whether a charge is illegal inasmuch as it has been revised to an amount exceeding the limit mentioned in Paragraph 1 of the Sixth Schedule to the Act of 1948. The only ground on which this charge is questioned is put up in Paragraph 23 of the plaint in these words : "any standing charges along with the usual Unit Charges is against equity and law, it being double charge for the industry to pay for the enrichment of the defendants"; the legality of the standing charge is not challenged on any other ground. Now where a charge is permitted by a statute no question of its being inequitable can be raised in a court of law neither can the question whether the charge is in excess of the limit justified by the statute be canvassed in such a court. Therefore, the respondents cannot in these cases challenge the legality of the standing charge.24. What I have said so far disposes of the appeal in the suit concerning the rates charged for the supply of motive power. That appeal must therefore be allowed.25. The appeal in the suit with regard to the charges for lights and fans can be disposed of substantially on the grounds earlier discussed. The High Court also placed its decision in respect of this matter on the same ground on which it had disposed of the other matter. The only point made in this case is that the appellant had been wrongfully charging a rate in excess of the limit fixed by the order of December 30, 1942 bynp. per unit. On this basis a declaration that the excess charge was illegal was sought and also an injunction restraining the appellant from levying it. It will be observed that in this case there was no notice given by the appellant of any increase in the charge. No question of the charge being illegal by reason of any enhancement, therefore, arises. The only complaint is that the charge is illegal as it is in excess of the limit fixed by the government. As I have said, under Paragraphs I and II of the Sixth Schedule to the Act of 1948 a licensee can charge any amount so that his clear profit does not exceed his reasonable return and if he exceeds the limit he only exposes himself to the consequences mentioned in them and a consumer cannot go to a court of law for relief on the ground that the licensee had exceeded this limit. Therefore, the respondent cannot ask for any relief in a civil court on the basis that the appellant had exceed the limit. As in the other case, in this case also I am not concerned with the legality of any charge made prior to the date of the suit; the only question is the legality of the charge made since March 31, 1959. That question has to be decided under Act of 1948 as amended in 1956. It follows that in this case also the respondents can get no assistance from the decision in Babulal Chaganlal, ILR (1955) Bom 42   : (AIR 1955 Bom 182  ) even if that case was rightlyare drawing; attention to this provision to indicate thebetween the two Actsthe Electricity Act, 1910 and the Supply Act, 1948.So far as the 1st point is concerned viz., whether the maxima prescribed by Government under the Electricity Act, 1910 still continues to bind the licensee after the coming into force of the Supply Act, we feel no hesitation in agreeing with the submission of the Appellant which found favour with the High Court. Section 57 of the Supply Act, 1948both as originally enacted and as amended in 1956 expressly provided that the provisions of the VIth Schedule shall be deemed to be incorporated in the license of every licensee and "that the provisions of the Indian Electricity Act, 1910 and the license granted thereunder and any other law, agreement or instrument applicable to the licensee shall be void and of no effect in so far as they are inconsistent with the provisions of the section and the said Schedule. Read in the light of S. 70 of the Supply Act it would follow that if any restriction incorporated in the licence granted under the Electricity Act, 1910 is inconsistent with the rate which a licensee might charge under Para I of Sch. VI of the Supply Act, 1948, the former would, to that extent, be superseded and the latter would prevail.43. Para I of Sch. VI both as it originally stood and as amended, as seen already empowered the licensee "to adjust his rates, so that his clear profit in any year shall not, as far as possible, exceed the amount of reasonable return. We shall reserve for later consideration the meaning of the expression "so adjust his rates. But one thing is clear and that is that the adjustment is unilateral and that the licensee has a statutory right to adjust his rates provided he conforms to the requirements of that paragraph viz., the rate charged does not yield a profit exceeding the amount of reasonable return. The conclusion is therefore irresistible that the maxima prescribed by the State Government which bound the licensee under the Electricity Act of 1910 no longer limited the amount which a licensee could charge after the Supply Act, 1948 came into force, since the "clear profit and "reasonable return which determined the rate to be charged was to be computed on the basis of very different criteria and factors than what obtained under the Electricity Act.With great respect to the learned Judge we are unable to agree with this decision, for, in our opinion, the provisions of the Supply Act, 1948 to which we have adverted are to strong to permit the construction, that the maxima prescribed under the Electricity Act of 1910 survives as a fetter on the rights of the licensee under paragraph I of the VIth Schedule. If there was any room for any argument of this kind on the terms of Para I of Sch. VI as originally enacted, the matter is placed beyond possibility of dispute by the amendment effected by Act 101 of 1956 to the VIth Schedule where the opening paragraph commences with the words notwithstanding anything contained in the Indian Electricity Act and the provisions in the licence of a licensee. We, therefore, consider that the first submission of learned Counsel for the Appellant that the limit imposed by the maxima prescribed by the State Government ceased to be in force after the Supply Act of 1948 came into force is wellother words, where no change is needed, it might be presumed that no adjustment was needed. In view of the machinery that it provided for complaints in the event of the licensee deriving more than a reasonable return as contemplated by the VIth Schedule we consider that the failure consciously to adjust the rates by working out the details so as to reach at the same rate as was charged previously does not constitute a failure "to adjust the rates as required by Paragraph 1.Taking up, first, the question of lights and fans (and the standing charges for the supply of power would be governed by similar considerations) the position would be that the Appellant must be deemed to have adjusted his rates under Paragraph 1 of the VIth Schedule when after the lapse of the Bombay Act of 1946 it continued to levy the same charges. When in 1949 or 1950 it is deemed to have adjustment, Paragraph I which empowered it to make this adjustment contained a proviso which we shallthat the licensee shall not be considered to have failed so to adjust his rates if the clear profit in any year of account has not exceeded by more than 30 per cent of the amount of the reasonableproviso, no doubt, uses a double negative "not be considered to have failed but expressed in positive terms it would mean that where the licensee adjusted his rates so that his clear profit exceeds by more than 30 per cent the reasonable return to which it was entitled, it could not be said to have adjusted his rates. In other words, such an adjustment would not be an adjustment at all as is contemplated by Paragraph 1. Paragraph 2 of the VIth Schedule proceeds on the basis that there is an adjustment within Paragraph 1; in other words, that the rate charged would yield to the licensee a clear profit which would not exceed the reasonable return by more than 30 per cent. It is only on that basis that the percentages specified in Paragraph 2 could be properly appreciated, for it proceeds to take the excess over the reasonable return, divide it by 3 and of that 1/3rd allot a proportion not exceeding 7 1/2over to the licensee himself. Of the balance half is to be appropriated to the Tariffs and Dividend Control Reserve and the other half is directed to be given to the consumers by granting them proportional rebates. From the percentages named in Para II read in conjunction with the absolute prohibition against a rate which would yield more than 30% over the reasonable return it appears to us that the lawfully adjusted rate contemplated by Paragraph 1 is one where the amount of clear profit does not exceed the "reasonable return by more than the maximum specified i.e., 30 per cent. The other paragraphs of the VIth Schedule deal with the creation and disposal of certain funds and reserves to which it is not necessary to refer.49. We thus reach the position that there could be a unilateral adjustment of the rates by a licensee but that such an adjustment must not leave him with more than the reasonable return plus another 30 per cent, this being an absolute limitation on the power to "adjust. Where the amount of "reasonable return is exceeded Paragraph 2 comes into play and the excess over the reasonable return is distributed in the manner laid down in thatresult of this would obviously be that there should have been a further adjustment by licensees so as to conform to the revised pattern. Here again, the question would arise whether there should be a conscious readjustment. Applying the rule of construction we have explained, earlier in relation to "adjustment  in 1949 or 1950 it would be seen that if the rate previously charged yielded a profit over the "reasonable return" of 15% or less there need be no readjustment and if the rate charged yields more than this permitted profit there should be a readjustment. The result would, therefore, be that unless it is established that the rate, charged by the Appellant for lights and fans and for the standing monthly charge for supply of power resulted in a profit to it of more than 15% over the reasonable return, the Appellant would be held to have properly adjusted these rates in conformity with the requirements of the relevant provisions of the Supply Act as amended by Act 101 of 1956.51. We shall, when dealing with the question relating to the jurisdiction of a Civil Court to entertain suits relating to infractions by licensees of their obligations under Para 1 of the VIth Schedule which is the last of the matters debated before us, also examine the question as to the party on whom the burden of proof would lie to establish that the adjustment which is made or which could be deemed to be made by a licensee by the continuance of arate contravenes the statutorylicensee notified to the consumers on September 25, 1958 his intention to enhance the unit rate for the supply of power. Previous thereto in terms of that proviso a notice in writing had been issued to the State Government intimating its intention to enhance the rate, and thereafter the consumers were notified of this increase in rates. It would be seen that the 3rd proviso to para I requires a notice to the State Government of the intention of the licensee to enhance the rates. On August 7, 1958 the Appellant intimated the Government of Mysore setting out the clear profit it had made inand the estimated working position inand its intention to increase the unit rate for supply of power from 6 nP to 9 nP. unit. Thereafter, on September 25, 1958, it notified the consumers that on and after November 1, 1958 it would be charging the enhanced unit rate together with the previously existing standing charges of Rs. 2.69per B.H.P. per month.The only point that was suggested as invalidating the notice to the Government was that the Government were not informed that the licensee was effecting an enhancement of the rates as regards the standing charges and that the notice was, therefore, bad. We do not consider that there is any substance in this objection, Rs. 2.69 was the charge which had been made prior to the notice as standing charges and if, as we have held, that was the rate which must be deemed to have been adjusted and which the appellant was entitled to charge when Sch. VI as it originally stood, the continuance of the same charge after the amendment of the Schedule would not make it an enhancement.53. There is, however, one circumstance to which it is necessary to advert. As already stated, the rate charged prior to the Supply Act, 1948 and which was continued thereafter would be a lawful rate only if the profit that it left to the licensee was less than 30% over the reasonable return. This was the position when the Supply Act, 1948 came into force. By reason of the amendment effected by Act 101 of 1956 the percentage of permissible profit was reduced to 15% and so the adjusted rate would be valid if it was within this permissible limit. Unless the adjusted rate prior to the amendment of 1956 was in excess of 15 per cent permitted by the 1st proviso to paragraph 1 the continuance of such rate could not be objected to as an enhancement or as a violation of the paragraph 1 of the VI the Schedule. The question as to the burden of proof as regards this requirement and whether the same has been discharged in these cases we shall reserve for later consideration. Subject to this so far as regards the unit charge, the requirement of the third proviso to paragraph 1 was complied with. There was thus no illegality or invalidity attaching to the notice to the Government issued under proviso 3 to paragraph 1 and the contention raised in that behalf by respondents must be rejected.It is undoubted that these provisions have laid down a specific procedure for violations by the licensee of the requirements of Sch. VI. There being no express bar to the jurisdiction of the Civil Court, we have to determine the scope and extent of the bar that could be implied from the existence of these provisions. One thing, however, is clear; the bar cannot extent beyond the scope and limits of the jurisdiction of the rating committee; or expressed in other words, the jurisdiction of the civil court could not be held to be excluded in respect of those matters which are no assigned by S.to the Rating Committee, or in regard to which the rating committee cannot afford the consumer relief against an infraction of a statutory provision by which he isis doubtless a serious argument which requires careful examination. In this context and in support of this submission stress was laid on the words "the licensee has failed to comply with any of the provisions of the Sixth Schedule occurring in S. 57, A (1) (a) (i) and it was urged that for any and every default of the licensee resort must be had to the Board or the Government and could not be had to the civil courts. But from these provisions it does not in our opinion, follow that the jurisdiction of a civil court is barred in respect of the infraction of every obligation cast on a licensee by Sch. VI. Broadly speaking, the utmost that could be urged would be that the bar to the jurisdiction of a civil court would bewith and be restricted to the powers of the rating committee and the reliefs which the committee could grant under S.few examples of breaches of Sch. VI which a licensee may commit and in regard to which a reference to the rating committee is not contemplated would make our meaning clear. The first proviso to paragraph 1 specifies that "such rates shall not be enhanced more than once in any year of account. Let us suppose that the licensee contravenes this prohibition and enhances the rate more than once. There is no provision in S.for the rating committee to control the licensee in the event of his transgressing a positive prohibition of this sort and, indeed, it would be most anomalous to say that the statute having made a provision that the rates shall not be enhanced more than once in a year, the consumer is left without a remedy if the Government does not choose to appoint a rating committee which, as we said earlier, has no power to afford redress to the affected consumer. In such a case it appears to us that by no principle of construction can the jurisdiction of a civil court to grant a declaration and an injunction be denied. It would also follow that if that rate is collected, the court could order a refund of the illegal collection. Take next the case where a licensee in contravention of the 3rd proviso enhances the rates for the supply of electricity without giving the requisite notice of his intention to the Government and to the Board. Here again, the rating committee does not come into the picture for preventing the continued charging of the rates in contravention of the 3rd proviso and here we consider it impossible to contend that the jurisdiction of the civil court to grant a declaration and an injunction are affected by the provisions of S.therefore arrive at this position that notwithstanding the generality of the words in S.(1) (a) (i) referring to the failure on the part of the licensee in complying with the requirements of the "Sixth Schedule, there are some "failures in regard to which the jurisdiction of the civil court is it is clear notproviso casts an absolute obligation on the licensee not to exceed this limit. There is thus a statutory prohibition against the licensee of fixing a rate which would yield such excessive profit, and if he does so he would not be acting in terms of the VIth Schedule at all or by virtue of a power conferred by that Schedule and therefore he would be amenable to the jurisdiction of the court which would be competent to issue an injunction restraining him from charging that rate. No doubt, the proviso also adds that if he does so he would be failing to comply with the requirement of the main part of paragraph 1. It would therefore follow that in a case where in adjusting his rate the licensee fixes it so high as to contravene this proviso, it would be open to the aggrieved consumer to approach the Board or the State Government to appoint a rating committee. But from this circumstance we are not prepared to hold (a) that the action of the licensee in charging a prohibited rate is any the less and illegality not countenanced by the statute and (b) that where such an illegality is made out the jurisdiction of a civil court to afford relief is ousted. It is possible to hold, and we do not desire to express a final opinion on a point which is not directly involved in these appeals, that the jurisdiction of the court may be confined to granting a declaration as to the invalidity of the adjustment and injunction against the violation of the statutory prohibitions; and not to grant a refund. It is only necessary to add that the relief sought in these two suits was merely a declaration regarding the invalidity of the rates charged and an injunction restraining the appellant from continuing to charge them.60.We are, therefore, satisfied that the mere existence of S.does not by itself and without reference to the particular violation complained of by the licensee, bar the jurisdiction of a civil court and the argument in the extreme form presented to us by the learned