Case: Jiyajeerao Cotton Mills Limited And Another Vs. Madhya Pradesh Electricity Board And Others

2. 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 27.10.1971 with the respondent No. 1 Madhya Pradesh Electricity Board (in short the Board) a licensee under the Indian Electricity Act, 1910 (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 2,500 K.W. on A.T. basis with effect from 1.11.1973. 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 State of Madhya Pradesh under Section 22B of the 1910 Act on 4.4.1975 called as the Madhya Pradesh Electricity (Supply and Consumption Regulation) Order, 1975 and the Madhya Pradesh Electricity (Generation. Control and Consumption) Order, 1975. 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 Boards power to disconnect the supply in 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 17.5.1975 (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 2,700 K.W. In view of the contract under which the Board was to supply 2,500 K.W. with effect from 1.11.1973, 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 10.10.1975 (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 2,500 K.W. with effect from 31.10.1975.4. 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 11.11.1979 additional power was drawn by the appellant without the Boards prior approval and a letter Annexure T dated 5.8.1980 was ultimately sent to the Company explaining the situation and telling it that the supply availed by it with effect from 12.11.1979 would be billed at the penal rate. In the meantime two additional contracts were executed by the parties; the first one on 11.7.1979 (Annexure C) for supplying additional 800 K.W., and the second one dated 26.2.1980 (Annexure D for additional 190 K.W. Thus the total demand under the agreements added to 3,490 K.W. The Board by its letter Annexure U dated 13.10.1980 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 12.11.1979 to 30.9.1980 amounting to Rs. 94,41,745.60 was served on the appellant Company by the letter Annexure X dated 15.1.1981. The further bills were also sent on the same basis.5. On 5.8.1981 the application under Article 226 of the Constitution was filed before the Madhya Pradesh High Court challenging Annexures 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 Boards demands for the period 12.11.1979 to 25.2.1980 and from 26.2.1980 to 31.7.1980 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 23.9.1982. The Company thereafter filed an application for review, which was dismissed by a speaking order of 19.10.1982. The present appeals have been filed by special leave against these two judgments.

Court's reasoning:
10. 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 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 OrderThe 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 10.10.1975.The argument of Mr. Kacker appears to be well founded.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.Instead of advancing the appellants 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.On behalf of the appellant it was said that the Company had no knowledge of this letter in 1975.letter mentions an inspection of the Companys 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 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 10.10.1975 (at page 136 of the Paper Book Vol. II), mentioned earlier. This second direction which was effective from 31.10.1975 naturally superseded the earlier one under Annexure H. The Boards impugned demand does not relate to any period before 31.10.1975 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.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. Theletter mentions an inspection of the Companys 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 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 10.10.1975 (at page 136 of the Paper Book Vol. II), mentioned earlier. This second direction which was effective from 31.10.1975 naturally superseded the earlier one under Annexure H. The Boards impugned demand does not relate to any period before 31.10.1975 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.We think that in view of the revised order of the Divisional Engineer passed on 10.10.1975, vide Annexure O, earlier correspondence is not material for the purpose for which the appellant is trying to use them.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.think that in view of the revised order of the Divisional Engineer passed on 10.10.1975, vide Annexure O, earlier correspondence is not material for the purpose for which the appellant is trying to use them.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 OrderThe above is obviously an arbitration clause in case of a dispute and since the maintainability of the appellants 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.18. 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 Boards 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.The learned Counsel for the parties before us explained the scientific implications of the test by parallel running, but we do not consider it necessary to go in its technical details. The Board requested the Companys consent for such a test, to be communicated positively within a week. By its reply dated 25.8.1975 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 Boards supply we would be doing the paralleling of the sets, which was not safe. In reply thereto the Board satisfactorily met the objections by its next letter Annexure M dated 25.10.1975 (page 134, Vol. II). It was pointed out that the parallel running test will be undertaken only for a short period after which the captive sets would be separated from the Boards system; and a disturbance free period could be chosen for the same. Besides, the objections to the suggested test have to be rejected as frivolous in view of the stand of the Company itself as indicated in the letter Annexure N (page 135, Vol. II) dated 6.11.1975, 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 assessment or to go in for a further check as mentioned by the Board. The appellant did not pursue the matter at all and observed silence on the suggestion for the parallel running test.The argument of Mr. Kacker appears to be well founded.It is significant to note that the appellant had not accepted the offer as wrongly claimed by it, on the basis of the letter Annexure N, but at the same time the said letter does indicate that the suggested parallel running test was feasible and there was no justification to reject it on the flimsy grounds mentioned by the appellant on 25.8.1975 (Annexure L). The conclusion is irresistible that the appellant Company backed out without adequate reason from the realistic test proposed by the Board to check the correctness of the assessment.The letter is not only conspicuous by the absence of the objections which were taken later in 1980 before filing of 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 Companys factory and the appellant was supplying electric energy to the other factory illegally and without the permission of the BoardA 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 28(1) of the 1910 Act, the Company was prohibited from supplying any energy to the other factory. This aspect was stressed in term 2(b) of the agreement between the appellant and the Board as per Annexure A (page 62 of Vol. II). It was not the appellants case then or before us now that it had obtained the previous sanction of the State Government for so doing. Under Clause 4 of the Generation Order, which reads as follows, jurisdiction was vested in the Divisional Engineer of 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 generation4. If the consumer having own generating set(s) can have, as 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 set(s) 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 set(s) and(iv) the consumer having the set(s) 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. 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 assumed that the appellant was making the contribution to its sister concern by creating artificial shortage of supply to its mills. The appellants 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.22. Another letter which calls for a detailed consideration was sent by the appellant on 30.5.1979 and is included at pages 16 to 20 of Vol. IV. 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 K.W. should be allowed to be drawn for the period mentioned therein.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,This letter dated 30.5.1977 confirms the conclusions derived from the earlier letter dated 14.2.1977 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 30.5.1978, 29.6.1978, 7.7.1978 and 9.9.1978 are all consistent with a correctly made binding assessment of the feasible additional capacity from the generating sets belonging to the Company.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 4.6.1975 (document No. 1, 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 to 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 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 of 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 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 Boards case.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 of 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. kacker 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 of the Generation Order was limited to the original contract demand as reduced by the Regulation Order. It was, therefore, important for the 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 whatsoever. 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 appellants letter dated 30.5.1977 (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 Boards power during the emergency we will intimate the B.E., MPEB, Gwalior as well as S.E.MPEB, Gwalior and send a copy of our letter to the Director (Com), MPEB, Jabalpur.ii(a) In case 6th boiler is out and other boilers are 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 1200 KW.(c) In case 6th boiler is not and one of our M.V. 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.By this letter the appellant was informed that the contract demand of 3490 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 1.8.1980. 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 of the Generation Order the Board was under a duty to permit the appellant to draw additional electricity on satisfaction of the relevant conditions for emergency supply, which it could not deny. The Board has not challenged this part of the High Courts decision, and the same is not relevant for purposes of the present appeal.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 190 KW.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 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.29. 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 appellants 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 State Government had any prejudice or bias against the appellant Company; (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 parallel 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.our finding that a proper and binding assessment of the capacity of the appellants 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 of additional relief from an earlier date.Mr. Kacker appears to be right in his stand that merely because the appellant became liable to the penalty as mentioned in Section 42(e) 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.32. 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 Generation Order mandatory 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 v. A.P. State Electricity Board [1976] 4 SCC 68 ; State of U.P. v. Hindustan Aluminium Corporation [1979] 3 SCC 229 ; and New Central Jute Mills v. 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 Essential Commodities Act, 1955, 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 charges/tariff 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 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.The similarity in the preamble of the two Orders is described as not of great consequence as it merely borrows the language from Section 22B. Many Orders are issued under Section 3 of the Essential Commodities Act, the argument proceeds, and it cannot, therefore, be suggested that the penalty imposed in one has to be applied to the other without express language to that effect in either of the two Orders. We do not think that 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.It was further contended that it is not essential for the Board to frame regulations for the exercise of such power.The learned 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 79(j) of the 1948 Act, the orders were bad. Both the points (along with several others) raised by the appellant in that case were rejected by this Court. Referring to Section 49(1) 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 49(1) is related to the terms and conditions of the agreement between the parties 7 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 49(3) permits the Board to fix different rates for the supply of electricity having regard to certain conditions mentioned there in 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. v. U.P. 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 49(3) 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 49(3) 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 1910 Act. We do not consider it necessary to multiply the decisions as there does not appear to be any doubt that either under Section 49(1) of the 1948 Act read with the agreement or under Section 49(3) 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 appellants final reply and included in the last installment 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 appellants 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.36. 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 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.37. 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 5.11.1982 directed the appellant Company as condition for interim relief of restoration of electric connection to pay a sum of Rs. 50,00,000 within a fortnight and another sum of Rs. 1,50,00,000 within six months with interest from 1.1.1983 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 24.11.1982 the time for payment of Rs. 50,00,000 was extended to 6.12.1982. With respect to the payment of Rs. 1,50,00,000 the Court by its order dated 6.5.1983 permitted the amount to be deposited in two equal installments. 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 23.4.1984 the appellant was required to pay a sum of Rs. 1,28,00,000 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.