1. The petition for review under Rule 1 Order XL of the Supreme Court Rules, made by the appellants in respect of the judgment dated May 13, 1992 in Civil Appeal No. 1841 of 1988 is taken up for hearing after notice to the respondents and the learned Counsel for the respondents 1 to 5 has appeared and filed counter affidavit to the said petition for review. The review of the judgment has been sought by the appellants on the ground that the appellants who were the Writ Petitioners before the Karnataka High Court contended in the writ proceedings that as per the Tripartite agreement entered into between the Writ Petitioner Company and the State Government and the Electricity Board on August 1 7, 1976, any revision in the rates of electricity in terms of Clause 6(b)(ii) would become effective on and from the date the Government of India would allow the consumer, namely, the Writ Petitioner Company to make the necessary adjustment in the selling price of aluminium or communicate to the consumer that no price increase would be made of after the expiry of six months from the date of the said notice whichever was earlier. Admittedly, such notice dated July 3, 1980 of the levy of surcharge, that is, enhanced rate of electricity was received by the petitioner Company namely Indian Aluminium Company Ltd. whereby a surcharge of two paise per unit was sought to be levied. The Ordinance of 1980 followed by the Act amending Section 49 of the Electricity (Supply) Act, 1948 came into force with effect from November 21, 1980. According to the appellants, the enhanced date of electricity could not be legally given effect to for the period between July 1, 1980 and November 21, 1980 even if the amended provisions of Section 49 become operative. It is the case of the appellants that such contention of the Writ Petitioners/appellants though specifically raised before the High Court was not decided by the High Court and although this Court had noticed such contention of the appellants, has not decided the said contention presumably because in the judgment of the High Court appealed from, no decision was rendered on this contention.
2. Mr. Parasaran, learned Counsel for the appellants, has contended at the hearing of the review petition that the appellants challenged the vires of the amended provisions of Section 49 on various grounds but such contentions have not been accepted either by the High Court of Karnataka or by this Court in disposing of the appeal. But even if such amendment is operative as held by this Court, the petitioners/appellants are entitled to claim that the surcharge of two paise per unit will not be operative for the period from July 1, 1980 to November 21, 1980 when the amended provisions came into force in view of the existing provisions of Tripartite agreement. Since such contention has not been considered by this Court in disposing of the appeal, the relief should be given by directing that in terms of the Tripartite agreement, the State Electricity Board of Karnataka cannot enforce the said levy of surcharge of two paise per unit from July 1, 1980 to November 21, 1980.
3. Mr. Narasimha Moorthy, learned Counsel appearing for the Karnataka State Electricity Board and its Officers has however submitted that a Writ Petition is already pending decision before the Karnataka High Court on the true import of Clause 6 of the said Tripartite agreement. In the aforesaid circumstances, the appellants should raise such contention, if they so desire, before the High Court so that upon hearing the parties the proper adjudication may be made in the pending Writ Petition. He has, however, submitted in fairness, that although implication of Clause 6(b)(ii) is not the subject matter in dispute in the pending Writ Petition but since the import of Clause 6 as a whole is required to be considered for the disposal of the said pending Writ Petition, it will be only appropriate if the appellants raise the contention about the true scope and import of Clause 6(b)(ii) in support of the claim of the appellants that the said surcharge of two paise per unit could not be levied for the aforesaid period. In our view such submission of Mr. Narasimha Moorthy appears to be reasonable. We, therefore, make it clear that the claim of the appellants about the inapplicability of the surcharge of two paise per unit during the period between July 1, 1980 and November 21, 1980 since imposed by the Karnataka State Electricity Board on the appellant Company is kept open with liberty to the appellant Company to raise the question of liability to pay the said surcharge in view of the aforesaid Tripartite settlement in the pending Writ Petition before the Karnataka High Court, if necessary, by amending the Writ Petition suitably. We make it clear that the judgment delivered by this Court on May 13, 1992 in Civil Appeal No. 1841 of 1988 will not be construed as implied rejection of the said contention of the appellant Company by this Court.
4. The appellants have also contended that while considering the case of the appellants that the smelter plant should be separately categorised and should not be broadly classified as a High Power Intensive Industry, this Court proceeded on the basis that the Smelter plant was classified in 1978 as a High Power Intensive Industry and that the said category continued till the decision was made by this Court. Since such premise was not factually correct which would be evident from the compilation of all the tariff schedules for the years 1981, 1983, 1985 and 1987, the judgment requires a reconsideration about the justification of the classification of the smelter plant of the appellant Company by the Electricity Board in order to enforce the amended provisions of Section 49 of the said Act. We are, however, not impressed with such contention of the appellants. Even assuming that subsequently in tariff schedules for the years 1981, 1983, 1985 and 1987, the smelter plant was given a different treatment, the fact remains that in 1978 the smelter plant was classified as a High Power Intensive Industry. It is, therefore, apparent that there is basis for such classification and if the plant of the appellant Company was broadly classified as High Power Intensive Industry, for giving effect to amended provisions of Section 49 it cannot be contended that such classification was made without any basis whatsoever and such classification was made malafide for the purpose of enforcing the amended provisions of Section 49 so as to avoid the existing agreement. It is not necessary for us to decide as to whether or not the smelter plant of the appellant Company deserves a special consideration and a special categorisation because of the unique role of electricity in the manufacturing process in the smelter plant. As a matter of fact, it has been indicated in the judgment that the question of tariff for the supply of electricity to the smelter plant requires a sympathetic consideration and we have also indicated in the judgment that it is only desirable that the interest of both the Karnataka State Electricity Board and the aluminium industry is to be reconciled with a pragmatic approach and the Central Government, concerned State Governments and Electricity Boards would try to evolve a proper policy by which the interest of both the Boards and the aluminium industry is safeguarded as far as practicable.
5. Mr. Parasaran, learned Counsel appearing for the appellants, has also submitted that despite such observation, no consideration has been made by the State Electricity Board or the State Government of Karnataka. It is, therefore, only appropriate that a specific direction should be given by this Court to the State Electricity Board of Karnataka and also to the Karnataka Government to consider the case of special categorisation of the smelter plant in the matter of tariff rates of the Karnataka Electricity Board. Mr. Narasimha Moorthy, learned Counsel for the respondents, has, however, submitted that no specific representation has been made by the appellant Company either to the State Government of Karnataka or to the Karnataka State Electricity Board. Accordingly, the question of consideration of the representation has not arisen. He has submitted that if a representation is made by the appellant Company, there is no manner of doubt that the concerned authorities will give proper consideration to the representation to be made by the appellant Company. There is force in the aforesaid submission of Mr. Narasimha Moorthy. We may also indicate here that we have not given any direction nor do we intend to give any direction to the State Government of Karnataka and Karnataka State Electricity Board to consider the said contention of the appellant Company. We, however, reasonably expect that if a representation is made by the appellant Company, the concerned authorities will consider the same as early as practicable.
6. The appellants have also contended that at pages 50 and 51 of the judgment, it has been indicated that in view of the applicability of Sub-sections 5 and 6 of Section 49 of the Electricity (Supply) Act as amended, the Tripartite agreement which was operative stood annulled. Mr. Parasaran has submitted that it should be clarified by this Court that the entire agreement does not stand annulled in view of the amended provisions of the said Act but the agreement in so far as it relates to the rate and price of the electricity consumed by the appellant Company stood annulled. Such contention of the learned Counsel for the appellants appears to be justified and Mr. Narasimha Moorthy, learned Counsel for the respondents, also does not object in clarifying the judgment to that extent. It is, therefore, made clear that the Tripartite Agreement which was operative at the time of enforcement of the amended provisions of Section 49 of the Electricity (Supply) Act does not stand annulled as a whole but provisions of the said agreement relating to the applicability of the rate and price of the electricity consumed by the appellant Company stand annulled in view of the said amended provisions of the Act. The annulment of the said Tripartite agreement should, therefore, be understood in such limited extent whenever such expression appears in our judgment. The Review Petition is accordingly disposed of without any order as to costs.