Judgment:
Malimath, C.J.
1. The petitioner owns an air-conditioned theatre in Trichur. The Licencee competent to supply electric energy within the limits of Trichur Municipality is the Trichur Municipal Council, the 1st respondent. Electric energy is being supplied by the first respondent from the year 1971. It is the case of the petitioner that till May. 1982 electricity charges were being fixed by the first respondent at the same rate at which the Kerala State Electricity Board was prescribing from time to time. In May 1982 the first respondent increased the maximum demand charge from Rs. 30 per KVA per month per month to Rs. 50/- per KVA per month. The same was subsequently enhanced to Rs. 95/-with effect from 1-12-1982. The petitioner has challenged the said enhancement in this writ petition.
2. The principal contention of the learned counsel for the petitioner is that the first respondent had no competence to increase the tariff without due authorisation in this behalf from the State Government as required by Section 58 of the Electricity (Supply) Act. 1948 (to be brief, Supply Act). To appreciate thecontention of the petitioner. Section 58 of the Supply Act is extracted as follows :
'58. Power to direct amortisation and tariffs policies of licensees being local authorities--The Board, or where no Board is constituted under this Act, the Stale Government shall have power to direct the amortisation and tariffs policies of any licensee, being a local authority with respect to his licensed undertaking in such manner as the Board or the State Government as the case may be, after giving the local authority a reasonable opportunity of being heard, considers expedient for the purpose of the Act; and the licencee being a local authority, the provisions of the other law or of any rules made or directions given thereunder notwithstanding, shall give effect to any such directions of the Board or the State Government, as the case may be : Provided that the Board shall not issue any directions under this section except after obtaining the prior approval of the State Government.'
As the Board has been constituted under the Supply Act, the power under SECTION 58 in this case can be exercised by the State Government. The power conferred on the State Government is to direct the local authority which is the licencee, amortisation and tariffs policies to be followed. If a direction in this behalf is issued by the State Government the Licencee is required to abide by the same, it is not disputed that the State Government has not issued any direction under SECTION 58 of the Supply Act to the Licensee, the 1st respondent. The contention of the learned counsel for the petitioner is that it is only when there is a direction by the State Government under Section 58 of the Supply Act that the first respondent could exercise the power of enhancing the tariff and not otherwise. The language of Section 58 does not permit acceptance of such a contention. Section 58 confers power on the State Government to give certain directions to the Licensee in respect of tariff policies to he followed by them. Section 58 of the Supply Act is not the source of power of the licensee to fix the tariff. Section 58 only gives the superior power to the StateGovernment to regulate the otherwise existing, power of the licencee in the matter of tariff policies if the State Government considers it expedient to issue such directions. Therefore it follows that if no directions are issued by the State Government under Section 58, of the Supply Act, there would be no limitation on the power of the Licensee in the matter of prescribing the tariffs. We say that Section 58 of the Supply Act is not the source of power of Licensee in the matter of fixing the tariff, as such a power has been expressly conferred by Section 23 of the Indian Electricity Act (for brief, the Act), which reads as follows :
'23. Charges for energy to be made without undue preference.-- (1) A licensee shall not in making any agreement for the supply of energy, show undue preference to any person.
(2) No consumer shall, except with the consent in writing of the licensee, use energy supplied to him under one method of charging in a manner for which a higher method of charging is in force.
(3) In the absence of an agreement to the contrary, a licensee may charge for energy supplied by him to any consumer-
(a) by the actual amount of energy so supplied, or
(b) by the electrical quantity contained in the supply, or
(c) by such other method as may be approved by the State Government.
(4) Any charges made by a licensee under Clause (c) of Sub-section (3) may be based upon, and vary in accordance with, any one or more or the following considerations, namely.
(a) the consumer's load factor, or
(b) the power factor of his load, or
(c) his total consumption of energy during any stated period, or
(d) the hours at which the supply of energy is required.''
Sub-sec. (3) of Section 23 makes it clear that in the absence of an agreement to the contrary the licencee may charge for the energy supplied by him to the consumer in the mannerspecified therein. The source of power of the Licensee in the matter of fixing the tariffs is to be found in Section 23 of the Act. The power to fix tariff having been statutorily conferred by Section 23 of the Act, the said power can be exercised again and again as provided in Section 14 of the General Clauses Act. Therefore the fact that the first respondent had fixed the tariff at the rate of Rs. 30/- in May, 1982 would not preclude the first respondent from exercising the very same power again and again for fixing different tariffs either by way of enhancement or by way of reduction. The power of fixing the tariff which the first respondent enjoyed under Section 23 is of course subject to regulation by directions issued by the State Government under Section 58. But as the State Government has not exercised its power under Section 58 of the Supply Act and has not issued any directions, the exercise of power by the 1st respondent/local authority under Section 23 cannot be successfully challenged in this writ petition.
3. The learned counsel for the petitioner however invited our attention to Section 57 of the Supply Act which provides inter alia that the provisions of the Sixth Schedule shall be deemed to be incorporated in the Licence of eveny licensee not being a local authority. The Sixth Schedule provides that notwithstanding anything contained in the Indian Electricity Act, 1910 (9 of 1910) except Sub-section (2) of Section 22A, and the provisions in the licenses of a licensee, the licensee shall so adjust his charges 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. But it has to be pointed out that Section 57 of the Supply Act has no application in this case as it expressly states that it applies to Licensees not being local authority. Besides what is provided in the Sixth Schedule is that the tariffs shall be so fixed as far as possible not to exceed a reasonable return. It only fixes the maximum limit subject to which a licensee other than local authority can fix the tariff. We fail to see how any asistance can be derived either from Section 57 of the Supply Act or the Sixth schedule for sustaining an argument that the power of the first respondent/local authority in the matter of fixing the tariff stands abridged in any manner.
4. For the reasons stated above, this writ petition fails and is dismissed.