Case: Oswal Woollen Mills Ltd Vs. Punjab State Electricity Board

it to persons other than the licensees. While exercising the said power the Board would be governed by the general terms which may be issued by the State in terms of Section 79 of the Act. Surcharge by way of additional rate or penalty can be levied only in terms of a tariff notification. Such a power, therefore, can be exercised by the Board only in exercise of its statutory power and not by reason of an executive power. In terms of a circular letter issued by the Board, therefore, neither any surcharge nor any penalty could be levied. 11. In the year 1991, indisputably, the said circular letter dated 21.01.1991 was followed by the tariff notification issued in terms of Sections 46 and 49 of the Act. The subsequent circular letter dated 03.05.1991 was, however, not followed by any notification making the tariff applicable with retrospective effect. 12. We have noticed hereinbefore that the tariff notification dated 26.07.1991 speaks of levy of such surcharge inter alia on Arc furnaces. Similar is the position in regard to the notification dated 01.02.1994. The Board, therefore, could levy surcharge only in terms of the notification and not by reason of any circular letter. As in the notification, it has clearly been stated that 17 =% surcharge on the above tariff should be leviable for all the Arc furnace load consumers which were being given the supply at 11 KV, the High Court clearly fell in error in arriving at the finding that by reason of the said notification, the circular letters dated 21.01.1991 and 03.05.1991 were not superseded. The Board being a statutory authority, its power to issue bills for consumption of the electricity would be governed solely by the tariff notification. It being a statutory authority must act within the four-corners of the statute. 13. The High Court, therefore, in our opinion was clearly wrong in arriving at the finding that the earlier notifications dated 21.01.1991 and 03.05.1991 were not superseded. The High Court failed to pose unto itself the correct question, namely, as to whether after issuance of the tariff notification, the Board could levy any surcharge @ 17 =% on the tariff on those consumers who did not have Arc furnace. The High Court, therefore, misdirected itself in law in passing the impugned order. 14. The question which falls for consideration is from which date the period of one year could have started. Although on the basis of the aforementioned finding, the Company could have contended that from 13.05.1991, no surcharge could have been levied, but it did not raise such a contention before the High Court. We have seen that herein also a limited notice was issued. 15. It is not in dispute that for the purpose of giving effect to the offer made by the Board in terms of its letter dated 30.05.1991, no surcharge could have been levied immediately. A Division Bench of the High Court, as noticed hereinbefore, by an order dated 29.01.1992 clearly stated that the period of one year would start from the date when the feasible point is pointed out. The observation of the High Court in the earlier writ petition was in the nature of a direction. 16. The submission of Mr. Ranjit Kumar, the learned Senior Counsel appearing on behalf of the Board, in this behalf, cannot be accepted. Normally the period should be counted from the date of issuance of the notification and not from the date of the High Courts judgment. The High Court, however, made observations, whereupon both the parties acted. The said observations were made in terms of the affidavit affirmed on behalf of the Board itself. The High Courts direction leads only to one conclusion that the cut-off date would be considered to be one in futuro, i.e., a date after 29.01.1992 alone was required to be fixed. Once the final notice by the Board had been issued, the negligence on the part of the consumer to point out the actual site had not been condoned by the courts. 17. The High Courts observations might be incorrect; but then the same was accepted. As indicated hereinbefore, the parties acted thereupon. The period of one year in terms of the judgment of the High Court, therefore, was to start from the date when the feasible point for installation of Sub Station at the factory premises by the Board was pointed out. Selection of a site for the purpose of drawing 33 KV line was not an empty formality. Several factors including the convenience of the Board were required to be taken into consideration. In some cases probably compensation for acquisition of land was required to be paid. 18. All the courts had arrived at a finding of fact, having regard to the Boards letter dated 03.12.1992 that the final notice in terms of the said circular had been given only on 13.05.1992. The company had contended that actual feasibility was found out on 28.05.1994, but as noticed hereinbefore, the court did not accept its plea that even the date of the said notice could not have been considered to be the date for the purpose of the starting point of the period of one year. 19. For the reasons aforementioned, although Mr. R.K. Jain, the learned Senior Counsel appearing for the company, may be right in his submission that the Board has no jurisdiction to levy surcharge after 29.01.1992, but as the said contention had not been raised and furthermore as notice was issued by the court on a limited question, we are of the opinion that the company is liable to pay the surcharge with effect from 13.05.1992. We may furthermore notice that the actual amount of surcharge payable from that date has already been paid by the company to the Board. However, in view of our findings aforementioned, there cannot be any doubt that the surcharge @ 17 =% was not required to be paid in terms of the tariff notification dated 01.02.1994. 20.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The High Court, therefore, in our opinion was clearly wrong in arriving at the finding that the earlier notifications dated 21.01.1991 and 03.05.1991 were not superseded. The High Court failed to pose unto itself the correct question, namely, as to whether after issuance of the tariff notification, the Board could levy any surcharge @ 17 =% on the tariff on those consumers who did not have Arc furnace. The High Court, therefore, misdirected itself in law in passing the impugned orderThe High Courts observations might be incorrect; but then the same was accepted. As indicated hereinbefore, the parties acted thereupon. The period of one year in terms of the judgment of the High Court, therefore, was to start from the date when the feasible point for installation of Sub Station at the factory premises by the Board was pointed out. Selection of a site for the purpose of drawing 33 KV line was not an empty formality. Several factors including the convenience of the Board were required to be taken into consideration. In some cases probably compensation for acquisition of land was required to be paidAll the courts had arrived at a finding of fact, having regard to the Boards letter dated 03.12.1992 that the final notice in terms of the said circular had been given only on 13.05.1992. The company had contended that actual feasibility was found out on 28.05.1994, but as noticed hereinbefore, the court did not accept its plea that even the date of the said notice could not have been considered to be the date for the purpose of the starting point of the period of one yearFor the reasons aforementioned, although Mr. R.K. Jain, the learned Senior Counsel appearing for the company, may be right in his submission that the Board has no jurisdiction to levy surcharge after 29.01.1992, but as the said contention had not been raised and furthermore as notice was issued by the court on a limited question, we are of the opinion that the company is liable to pay the surcharge with effect from 13.05.1992. We may furthermore notice that the actual amount of surcharge payable from that date has already been paid by the company to the Board. However, in view of our findings aforementioned, there cannot be any doubt that the surcharge @ 17 =% was not required to be paid in terms of the tariff notification dated 01.02.1994.