N.J. Cyriac and ors. Vs. State of Kerala and ors. - Court Judgment

Bhaskaran Nambiar, J.

1. The petitioners in these Original Petitions are Low Tension consumers of electrical energy in this State. They are bound by the Kerala State Electricity Board Low Tension (other than Public Lighting) Tariff Order, 1985, issued under Section 49 of the Electricity (Supply) Act. This Order fixed the tariff rates applicable to various categories of Low Tension Consumers. As the points raised in all these writ petitions are similar and the main contention was advanced in O.P. No. 9449 of 1986, we are referring to the facts and exhibits in this Original Petition. The petitioner in O.P. No. 9449 of 1986 comes under category LT VI(b)

'applicable to Display lighting, Circus, Cinema theatres and Cinema studios (including air conditioned ones, for both) Commercial premises, Hotels, Show rooms, Business houses, Lodges, etc.'

2. Failure of the north east monsoon and delay in the setting in of the south west monsoon in 1986 acutely affected the storage position in the hydel reservoirs of the State rendering it impossible to supply electrical energy to the consumers 'even partially to their needs.' Therefore, on 11-6-1986, the Government issued an order (Ext.Pl) under Section 22B of the Indian Electricity Act, imposing a 100 per cent power cut to High Tension and Extra High Tension consumers, prohibiting use of electrical energy for illumination or display purposes and directing that no new connections will be given to any category of consumers. It is also stated therein that supply of electrical energy to cinema theatres having low tension service connections shall be limited to a single show daily and that 'for commercial purposes, for shops and establishments, supply of electrical energy shall be available only till 8 p.m.'

3. On 14-8-1986, when power from Karnataka and Tamil Nadu States started flowing to Kerala on a steady basis, the Government issued yet another order under Section 22B, directing that this imported power which is costly, compared to the power generated in the State, should be distributed at a no loss no profit basis to the consumers. This order, (Ext.P2),)Withdrew the power cut and so far as the petitioners in these cases are concerned, provided thus :--

'Commercial consumers, i.e. shops and establishments may draw power according to their requirement, subject to the condition that 50% of their consumption will be paid for at the normal tariff rates and the balance 50% will be paid for at Rs. 1.50 per unit'.

4. Thereafter, on the same date, the Board, in exercise of its powers under under Section 49 of the Electricity (Supply) Act, 1948 fixed tariff rates (excluding statutory levies) for imported energy payable by L.T. consumers thus :- (Ext. R2(a))

'The tariff rates (excluding statutory levies) for the imported energy/power payable by the L.T. consumers in the State shall be as follows :--

(a) LT Industrial consumers -- Ps. 100 per unit.

(b) LT Non-domestic consumers -- Ps. 150 per Unit'.

The Board, therefore, insists that the petitioners do pay at the tariff rate as specified in Ext. R2(a) dated 14-8-1986.

5. Bills have been issued to the petitioner in O.P. No. 9449 of 1986 based on the order of the Government under Section 22B and the tariff rate fixed by the Board under Section 49 of the Electricity (Supply) Act The petitioners, therefore, challenge the notifications and the tariff order, Exts. Pl and P2, the bills issued in pursuance thereof and claim refund of the excess amount paid pursuant to the bills.

6. The petitioners contend that the Government have no jurisdiction to exercise its powers under Section 22B of the Electricity Act, when there was sufficient power including imported energy in the State for supply to all consumers. In other words, the contention, seems to be that Section 22B can be invoked only when there is short supply of electricity.

7. Section 22B of the Electricity Act is a reserve power vested in the Government to be exercised whenever in their opinion it is expedient and necessary to regulate the supply, distribution, consumption and use of electrical energy and to ensure its equitable distribution. The Act does not state that this provision can be invoked only when there is shortage of power/energy. Shortage of power may not be the sole reason for taking action under Section 22B. Even in cases where there is adequate supply of energy, a situation may arise when for equitable distribution of energy, general orders may be expedient and necessary to be issued by the Government to regulate and assure equitable distribution of electrical energy. The power of the Government is thus sufficiently wide and cannot thus be restricted by conditions which are not implied or implicit in Section 22B itself.

8. It was on 14-8-1986 that the power cut was restored subject to certain conditions. If there was no power to issue this order, Ext.P2, the result would be to revive the earlier order and restore the power cut. Nobody, not even the petitioners bargain for any such position. Apart from the futility of this exercise of challenge to Ext. P2, this contention based on the scope of Section 22B has to be rejected.

9. The second contention urged is that the Government in exercise of its power under Section 22B have no authority to fix tariff rates for the supply of energy. The fixation of tariff is incidental to the power to regulate supply, distribution, consumption and use of electrical energy. Fixation of tariff is also part of the regulatory process of equitable distribution of electrical energy. While it cannot be assumed that the Government would in all cases encroach on the primary authority of the Board to fix tariff rates, it has to be held t hat in the specified regions of Section 22B, when that jurisdiction is invoked, the Government have the power to fix tariff as well. This contention also has no merit. Even otherwise, in these cases, apart from the Government directive, there is the independent order of the Board itself, Ext. R2(a), fixing tariff rate for L.T. non-domestic consumers under Section 49 of the Electricity (Supply) Act. This contention, therefore, does not advance the case of the petitioners.

10. The third contention is that the cinema theatres are not covered by the Government Order dated 14-8-1986. It is submitted that the Board has classified the cinema theatres as LT VI(b) category in the 1985 order and this category is not specifically included in Ext.P2 notification, for, it uses the word only 'commercial consumers'.

11. The 1985 order was issued by the Board under Section 49 of the Electricity (Supply) Act for fixing tariff in respect of the Low Tension consumers. It was not necessary for the Government to follow the same classification adopted by the Board when it exercised power under under Section 22B of the Electricity Act and the Government was well within its power either to ignore the said classification or to make a fresh classification. The fixation of the tariff rate by the Board in 1985 or the classification made therein cannot, therefore, be a basis to challenge an order passed by the Government under an independent statutory power.

12. Even otherwise, the contention of the petitioners on this count has to fail. In the Government order dated 11-6-1986 electrical energy to cinema theatres having low tension service connection was limited only to one show. It is also stated therein that for 'commercial purposes, for shops and establishments' supply of electrical energy shall be given only till 8 p.m. Admission to cinema theatres is regulated by tickets and there is a price charged for admission. Cinema is entertainment for the public, but business for the owner. There can be no doubt that cinema theatre is a commercial establishment and thus it was bound by the two restrictions contained in this order, both in regard to the number of shows that could be shown and the time during which energy was made available. In the second order of the Government dated 14-8-1986, it is expressly mentioned that commercial consumers, that is, shops and establishments, may draw power subject to the conditions that 50% of that consumption would be paid at the normal tariff rate and the balance 50% will be paid at Rs. 1.50 per unit. Commercial establishments are covered by this order and naturally cinema theatres also come within the purview of this order. The petitioners are therefore bound by the Government Order issued under Section 22B and are therefore liable to pay at the rate fixed therein.

13. The Board's power to fix tariff under Section 49 of the Electricity (Supply) Act is not open to challenge and the low tension domestic consumers have to pay at the rate of Rs. 1.50 per month. The Board was bound by the orders issued by the Government under under Section 22B and therefore they were justified in fixing the same tariff as directed by Government in respect of domestic and non-domestic consumers. Thus the Board's order does not make any distinction between commercial consumers and non-commercial consumers. The classification is between industrial consumers and non-domestic consumers and the petitioners admittedly, are non-domestic consumers coming within the purview of the Board's order dated 14-8-1986 (Ext. R2(a)).

14. The last contention that was urged was that the petitioners did not consume imported energy and therefore they should not have been charged at this high rate. Steady flow of electrical energy was ensured only after importing energy. The petitioners derived the benefit of import of energy. The Board has the power to classify the customers and fix different tariffs having regard to the geographical position, nature of the supply, purpose for which supply is required and any other relevant factor. See K.S.E. Board v. M/s. S.N. Govinda Prabhu & Bros. AIR 1986 SC 1999. Tariff could therefore be increased to low tension consumers of electrical energy. This contention of the petitioners also cannot stand. These Original Petitions therefore fail and are dismissed but, in the circumstances of the case, no costs.