M/S. Northern India Iron & Steel Co Etc. v. State of Haryana & Anr .

UNTWALIA, J-In these appeals by special leave the common question for determination is whether the Haryana State Electricity Board (briefly, the Board), respondent no. 2, is entitled to claim any demand charge from the appellants in respect of the supply of electric energy to them and whether the State of Haryana, respondent no. 1 is entitled to charge any duty under the Punjab Electricity (Duty) Act, 1958 on the demand charge. Several connected Writ Petitions were disposed of by the High Court of Punjab & Haryana ·by a common Judgment and this judgment will govern all the cases which had been heard together by us.

Civil Appeal No. 1306/1975 is by M/s Northern India Iron & Steel Co. Ltd. and arises out 0£ Writ Petition No. 733/1975. We may state a few necessary facts of this case; those of the other cases being more or less similar. The appellant owns a factory and manufactures alloy steel and steel castings. It is a large consumer of electricity supplied by the Board. As per the contract between the appellant and the board the total connected load of the installation in question is 8687, of 649 Kilowatts and its contract demand is the same. At the ratio one K.V. to 0.85 KW, the corresponding K.V. ,_-of the contract demand works to 10,221 K.V. .The appellant was allotted 1,06,590 units on daily basis as its power quota by the Board. t There was shortage of electric energy in the State of Haryana. The State Government, therefore, issued orders and directions for main-taining the supply and securing the equitable distribution of the energy. Orders were issued by the State Government under section 228 of the Indian Electricity Act, 1910-hereinafter called the 1910 Act, restricting considerably the supply of electric energy by the Board to the large industrial consumers as a result of which power cut was introduced. It is not necessary to give the facts and figures of the amount of power cut, sutlice it to say that at the relevant time there -<.. were substantial power cuts and the appellant was not able to get

supply of energy according to· its demand as per the quantity men-tioned in the contract. ln these circnmstances a dispute arose bet-ween the parties as to whether the Board was entitled to get any demand charge, if so to what extent, and whether the State could demand any duty on such charge. Under Section 49 of the Electri-J city (Supply) Act, 1948 herein.after called the 1948 Act, the Board

may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame u~1iform tariffs of course, the power of the Beard is subject to the other provisions of the Act and regulations, if any, made in this behalf.

There are two well-known systems· of tariffs-one is the .fiat rate system and the other is known as the two-part tariff system. Under the former a fiat rate is charged on unit 01' energy consumed. The latter system is meant for big consumers of electricity and it com-prised of ( 1) demand charges to cover investment, installation and the standing charges to some extent a1nd (2) energy charges for the actual amount of energy consumed. The Board has framed in exercise of its power under section 49 of the 1948 Act certain terms and conditions and procedure in regard to supply of electricity to its consumers. They are applicable in the cases of the appellants also. Demand Charge has been defined in clause 1 (h) thus :

"Demand charge" shall mean the amount chargeable per month in respect of B_oard's readiness to serve the con-sumer irrespective of. whether he consumes any energy or not, and is based upon the connected load, the maximum demand or the contract demand, as the case may be and as prescribed in the relevant schedule of tariff.

And in _sub-clause (i) "Energy Charge" has been defined thus :

- "Energy charge" shall mean the charge for energy actually taken by the consumer and is applicable to the units consumed by him \n any month. This is in addition to any demand charge, if applicable.

A schedule of tariff for supply of energy which is amended from time to time has been framed by the Board. Such schedule of tariff for steel furnace power supply mentions in item 2 the character of service. Clause 3 provides for tariff and clause 4 deals with the demaud assessment. The two part tariff mentioned in clause 3 in case of the appellant was "Demand Charges Rs. 12/- per KVA per month PLUS Energy charges Rs. 7.00 paise per Kwh". There was some surcharge on the above rates. The relevant Sub-clauses of clause .,., 4 i.e., Demand Assessment may now be quoted here : ·

"(a) The demand for any month shall be defined as the

highest average loa_d_ measured in Kilovolt amperes during any consecu_tive minutes period of the month. (b) The monthly demand charges shall be based on

(i) the actual maximum demand during the month or (ii) 65% of the contract demand or (iii) 75% of the highest maximum demand during the preced-ing eleven months or (iv) 100 KVA whichever is the highest. For the first 11 months from the com-mencement of Supply alternative (iii) shaii not be applicable.

. (c) The contract demand means the maximum K.W I

kV A for the supply of which the Board undertakes to provide facilities from time to time.

NOTE-In case the consumer exceeds his contract demand in any month by more than n% a surcharge of 25 % will be levied on the SOP /Monthly minimum charges (industrial. Factory lighting a:ad colony supply).

(d) If in any case the maximum demand is being mea-

sured in KW the same shall be converted into KV A by the use of actual power factor and KV A tadff applied for working out the demand charges.

( e) In case the supply has been given on restricted

hours basis then a reduction of 30% in demand charges will be given if supply is for 12 hours or less, occasional break downs or shut downs if any, on the part of the supplier, shall, however, not entitle a consumer to any reductions.

(f) Force Majeurc : In the event of lock out, fire or

any other circumstances considered by t11e supplier to be beyond the control of the consumer, the con-sumer shall be entitled to a proportionate reduction of demand charges/minimum charges. provided he serves at least 3 days notice on the supplier for shut down of not Jess than 15 days duration.

It appears from the juqgment of the High Court that some reduc-tion (perhaps upto 60%) was given by the Board in the demand charges because of the inability of the Board to supply energy as per the requirement of the appellant consumers due to power cuts im-_ posed by the Govcrn1nent. Hut the appellant seems to have taken the stand that either there should be no demand charge at all when the Board was not in a position to supply electric energy as per its requirement or there shQJild be a proportionate reduction of the demand charge. Hence it filed a Writ petition. The High Court has noted the reduction made by the Board and has held that the Board is entitled to the demand charge. It has, however, not been .decided •as to what should be the basis tor and in what proportion the demand charges be reduced.

The stand of the appellant as respects the charge of duty by the State Government under the Punjab Electricity (Duty) Act, 1958-hereinafter called the Duty Act, was that no duty could be levied on the demand charge. The High Court has. repelled this contention.

The two questions which fall our determination in these appc:als are:

j (1) Whether on the facts and in the circumstances of

the cases the Board is entitled to ciaim any demand charge; if so, to what extent ?

(2) Whether uny duty is leviable on the demand charge;

if so, to what extent ?

An argument was advanced before us in the first instance by counsel for the appellants with reference to the definition of the demand cha~ge in clause 1 (h) of the terms and conditions of supply framed by the. Board that since the Board was not ready to serve the consumer and the consumer was ready to consume maximum electric energy the former was not entitled to ask for any demand charge. This argument, in the beginning was combated with equal force, if not more, on behalf of the Board ::rnd it wa5 asserted that the Board was entitled to assess and claim the full demand charge as per clause 4 of the tariff irrespective of the fact _whether it was in a posi-tion to supply the energy according to the demand of the consumer or not. · Such an extreme stand on either side appeared to us a bit puzzling and leading to inequitable .results. The difficulty was not easy to solve. If we were to hold that for the Board's inability to supply a fraction of the consumer's demand as per the contract it could claim only the energy charge and not the demand charge, it would have been very hard and injurious to the Board and the con-sumer would have unjustifiably got the supply at a very cheap rate If on the other hand, we were to say that the consumer was liable to pay the entire demand charge as per the method of assessment pro-vided in clause 4 of the tariff even when for no fault of it, it could get only a fraction of its demand fulfilled, resulting in its not being able to run the industry to its full capacity, it would be liable to pay a huge amount per month, and this will not only be uneconomical but would seriously affect its economic structure. But we were happy to find that a just, equitable and legal solution of the difficulty was provided during the course of the argument on either side and that is with reference to sub-clause ( f) of clause 4 of the tariff. It is, therefore, not necessary to resolve the extreme stand taken on either side.

Under clause 4(f) the consumer is entitled to a proportionate re-d~ction of demand charges in the event of lock-out, fire or any other Clfcumstances considered by the supplier beyond the control of the consumer; that is to say, if the consumer is not able to consume any part of the electric energy due to any circumstance beyond its control and which is considered by the Board tQ be so, then it shall get a pro-portionate reduction in the demand charge. The circumstance of power cut which disabled the Board to give the full supply to the appel-lant because of the Govemment Order under section 228 of the 19 fO Act, undoubtedly would be a circumstance which disabled the con-sumer from consuming electricity as per the contract. And this was circums.tance which was beyond its control and could not be consider-ed otherwise by the Board. lt entitled the consumer to a propor-tionate reduction of the demand charges. This interpretation of sub-clause (f) of clause 4 of the tariff was accepted to be the correct, legal and equitable interpretation on all hands. In our opinion it i& so. In a circumstance like this, it is plain, the obligation of the consumer to serve at least 3 days notice on the supplier as per the latter part of sub-clause (f) was not attracted, as the requirement of notice was only in the case of shut down of not less than 15 days duration.

We are, therefore, of the view that the inability of the Board to. supply electric energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the cons11mer which prevented it from consum-ing electricity as per the contract and to the extent it wanted to con-sume. .The monthly demand charge for a particular month will have to be assessed in accordance with sub-clause (b) of clause 4 of the tariff and therefore from a proportionate reduction will have to be made as per sub-clause (f). We hope, in the light of the judgment, there will be no difficulty in \Y,Orking out the figures of the propor-tionate reduction in any of the cases and for any period. In case of any difference or dispute as to the quantum of the demand charge or the proportionate reduction, parties will be at liberty to pursue their remedy as may be available to them in accordance with law.

Coming to the question of duty, we have no hesitation in an out-right rejection of the extreme c_ontention put forward on behalf of the appellants that no duty is leviaple at all on the demand charge. But it is clear, and this was fairly conceded to by the Solicitor General appearing for the State of Haryana, that the amount of duty payabk will be on the actual amount of demand charge realisable from the consumer after the proportionate reduction under clause 4(f) of the tariff.

Section 3 of the Duty Act says that there shall be levied and paid to the State Government on the energy supplied by the Board to a consumer a duty to be called the "electricity duty'', computed at the rates indicated in the various clauses of sub-section ( 1) of section 3. The expression used in the various clauses is "where the energy is supplied" to a particular type of consumer, then the rate of duty will be as specified therein. On the basis of the said expression the argu-ment put forward on behalf of the appellant was that the duty could be levied only on tl1e energy charges for the actual amount of energy supplied. Such an argument is too obviously wrong to be accepted. Reading· the clauses as a whole it would be seen that the duty is chargeable on the price of energy supplied in a month. The price of energy in a two-part tariff system would mean and include the energy charge as also the demand charge. This is made further, clear by the manner of calculation provided in Rule 3 of the Punjab Electricity (Duty) Rules, 1958. Sub-rule (1) says:

"The duty under clause (iii) and (iv) of sub-section ( 1) of section 3 of the Act shall be calculated on the price l of the energy recoverable at the net rate of the Board which

will include the demand charge when the Supply is govern-ed by a two-part tariff." · It is therefore, manifest that the duty under the Duty Act is chargeable not only on the energy charge but also on the demand charge when the supply is governed by two-part tariff and it is charge-able on the actual amount of demand charge realisable from the con-sumer.

For the reasons stated above, we allow these appeals in part to the extent indicated above. ln the circumstances we shall make no order as to costs in any of the appeals.

CIVIL APPELLATE JURISDJCTION: Civil Appeal Nos. 1306, 1310, 1370-1380 and 1422 to 1424 of 1975.

Appeals by special leave from the judgment and orders dated the ~·.'~ 9th July 1975 of the Punjab & Haryana High Court at Chandi_garh in Civil Writ Petitions Nos. 733, 595, 725, 681, 720, 723, 726, 728, 777, 780, 781, 833, 892, 884, 885 and 887 of 1975 re&pectivcly.

M. C. Bhandare, (In 1306) and Mrs. S. Bhandare for the appel-· lants in C.As. 1306, 1370-1980 and 1422-1424 of 1975.

F. S. Nariman, A. K. Srivastava and B. P. Singh for the appd~ !ants in C.A. 1310.

A. K. Sen, (In CA 1306), Dr. L. M. Singhvi, (In 1310), K. K.

Jain, Bishamber Lal, S. K. Gupta and P. Dayal for the Respondent No. 2 in all the appeals.

L. N. Sinha, Sol. General (In CAs. 1306 and 1310) and R. N. Sachthey for Respondent No. 1 in all the appeals.