PETITIONER:
ADONI COTTON MILLS ETC. ETC.
Vs.
RESPONDENT:
THE ANDHRA PRADESH STATE ELECTRICITY BOARD &OTHERS
DATE OF JUDGMENT06/08/1976
BENCH:
RAY, A.N. (CJ)
KRISHNAIYER, V.R.
SINGH, JASWANT
CITATION:
1976 AIR 2414 1977 SCR (1) 133
1976 SCC (4) 68
ACT
Indian Electricity, Act 1910--Section 22B--Electricity
Supply Act 1948-Section 18, 49 and 79(j)--Whether Section 49
invalid for excessive delegation Whether Electricity Board
can reduce the quota of consumption if the State Government
has done so--Board having determined the quota, whether
can further reduce it--Whether Board can fix the quota
without framing regulations-Practice and procedure--Whether
appellant can be allowed to raise a new question of facts
for the first time.
HEADNOTE
Section 22B of the Electricity Act, 1910, authorises
the: State Government if it is of the opinion that it is
necessary or expedient so to do for maintaining the supply
and securing equitable distribution of energy to provide by
an order for regulating the supply, distribution, consump-
tion or use of the electricity.
Section 18 of the Electricity Supply. Act, 1948 provides
that it shall the duty of the Board to provide electricity
as soon as practicable to persons requiring such supply.
Under section 49 subject to the provisions. of the Act
and the regulations if any made, the Board may supply elec-
tricity to any person upon such terms and conditions as the
Board thinks fit. It further provides that in fixing the
tariffs and terms and conditions for the supply of electric-
ity the Board shall not show undue preference to any person.
Under the prescribed agreement the Board is given
unilateral right to vary from time to time the terms and
conditions of supply under the agreement by special or
general proceedings.
The State Government made an order under s. 22B provid-
ing that the maximum demand limit will he 75 per cent of the
average monthly maximum demand over a certain period. It
further provided that the supply to consUmers who violated
the restrictions was liable to be cut off without notice.
Without prejudice to the right to disconnect the supply the
Board was also authorised to bill the energy and maximum
demand utilised in excess of the limits prescribed at double
the tariff rates. The order of the State Government was
occasioned because the water position in the Hydro Electric
Reservoirs in the State became very unsatisfactory because
of failure of monsoon. Secondly, sufficient power was not
available to meet the needs of the State and thirdly it
became necessary to conserve available water with a view to
ensure regular and uniform supply of electrical energy
during the coming months.
The State Electricity Board fixed quotas for consump-
tion because power generated was not adequate to meet the-
requirements. An extra charge for consumption of energy
beyond the limits of quotas was also introduced by the
Board. The Board further cut the quota and enhanced the
extra charges.
Thereafter, the Board passed an order increasing the
power cuts at different percentage in different industries.
The Board also increased charges to be paid for the excess
consumption. This action of the Board was necessitated
because of great depletion of levels in the Hydel reservoirs
and because no assistance was forthcoming from the neigh-
bouring States and because there was a heavy increase of
agricultural loads.
The appellants filed writ petitions in the High COurt
praying for a writ or direction that the respondent should
be ordered not to collect from the appellants more than
normal charges for consumption of electricity and not to
disconnect their supply and for a declaration that the
restrictions with regard
to the imposition of quota and the levy of penalty charges
was illegal.
134
The High Court held that the Board has power to fix
quotas or otherwise to restrict consumption of electrical
energy and collect charges at 4 times the normal rates.
The appellants obtained special leave limited to the
question whether under s. 22B of the Electricity Act, 1910’,
it is open to the Board to reduce the supply to anything
less than 75 per cent and levy extra charges for excess
supply.
In an appeal by special leave the appellants contended:
1. Section 22B of 1910 Act empowers the State
Govt. to control the distribution and consumption
of energy. The State Government exercised its
powers and reduced the quota to 75%. Therefore,
any further reduction by the Board would be ille-
gal.
2. Section 49 of the 1948 Act does not confer
power on the Board to effect rationing of supply
because that would involve excessive delegation of
legislative power. There is no guideline in s. 49.
to reduce the supply and therefore, section is bad.
3. In the alternative, the contention was that
unless the Board made regulations under s. 79(j)
it could not ration the supply in exercise of
powers under s. 49.
4. The Board cannot fix different percentages of
cuts in the supply to different consumers nor can
the Board impose penalty.
Dismissing the appeal,
HELD .: (1) Section 49 which requires the Board not to
show undue preference to any person embodies the principle
enumerated in Article 14 of the Constitution. It is the
principle of equity or non-discrimination. However, it is
fairly settled that equality before law does not mean that
the things which were different will be treated as though
they were the same. It does not mean an economical equal
treatment. It would be justifiable to treat different
industries and institutions with reference to their urgencY,
social utility and also the impact on the conservation and
economies in the available supply of electric power. [142
B-E]
(2) The recognition of the fact that the Board can
introduce rationing by making a regulation under s. 79(j) of
the 1948 Act necessarily involves a concession that the
Board has a power to enforce rationing and to enunciate the
principle and scheme. of such rationing. The making of a
regulation is not a new source of power but is the exercise
of power which exists. The language of s. 48 "’if any"
shows that the power can be exercised without making any
regulation. The powers conferred on the State Government
under s. 22B do not exhaust the power of the Board under s.
49 of the 1948 Act. There is no conflict in the existence of
power at different levels. The higher authority may have
the power to override the order of the lower authoritY.
Powers under s. 22B of the 1910 Act and s. 49’ of the 1948
Act may have some overriding features. Section 49,, howev-
er, contains a much larger power because the Board is the
authority primarily charged with all aspects of development
and supply under the 1948 Act. [142 E-G, 143 A-D]
(3) The appellants cannot be allowed to raise the con-
tention which was not raised in the High Court that the cut
imposed by the State Government under s. 22B was effective
throughout. If such facts were pleaded in the High Court,
the Board could have produced materials denying such allega-
tions. [143-D-F]
(4) The orders of the Government and the Board were
cumulative ,and not contradictory. The Board is empowered
to fix different rates "having regard to" the geographical
position of any area, the nature of the supply and purpose
for which supply is required and any other relevant factors.
The expression "any other relevant factors’ is not to be
construed ejusdem generis because there is no germs of the
relevant factors. [144 B-D, E-F]
135
(5) If there is shortage of electricity there has to be
restriction on supply.The Board can disconnect supply if the
quota is exceeded. The Board can also impose higher rates
if the quota is exceeded. The imposition of higher rates
is only to sanction the rigour of ration by making
persons who exceed the quota liable to pay higher rates.
[144 G-H, 145 A]
JUDGMENT
CIVIL APPELLATE JURISDICTION: CIVIL APPEALS NOS: 1241,
1245, 1506-1525 & 1770-1771/75-(Appeals by Special Leave
from the Judgment and Order dated 26.8.1975 of the Andhra
Pradesh High Court in Writ Petitions Nos: 874/75, 5894/75,
7068/74, 876/75, 1661, 930, 2326, 149, 3385/75, 6891/74,
825, 2247, 2409,3021, 6931/75, 6932, 7106, 7178/74, 123,
133, 235, 2241, 7170,731/75 respectively) and
CIVIL APPEALs NOS :--1242, 1253, 1443, 1456-
1461 1664-1666, 1772, 1774-1775, 1995-1996/75 & 164-
165/76:(Appeals by Special Leave from the Judgment and
Order dated 26.8.1975 of the Andhra Pradesh High Court in
Writ Petitions Nos :-6796/74, 5886/74, 732/75, 1583/75,
7297/74, 512/75, 6121/74, 6902/74, 6791/74, 215/75, 6287/74,
5854/74, 2871/75,. 2871/75, 6890/75, 1634/75, 525/75,
5843/74, 1635/75, 2053/75, 159, 311, 2298/75, 6478/74,
2218/75, 3360/75, 1509, 2040, 202, 244./75, respectively)
and
CIVIL APPEALS NOS: 1244, 1462-1465, 1467-1498, 1500-
1505, 1662, 1667, 1776-1780, 1991-1994/75 & 166/76: (Appeals
by Special Leave from the Judgment and Order dated 26.8.1975
of the Andhra Pradesh High Court in writ Petitions Nos.
5890/74, 5109/74 6859/74, 185/75, 554/75, 1274, 1943, 2366,
2254, 1015, 1114, 764, 296, 2584/75, 6952, 5880/74, 6505,
2272/75, 6922/74, 205, 114, 251, 6318, 194, 2365, 1567,
6482, 897, 620/75, 6520, 6753/74, 673, 2409, 1395/75,
6724/74, 2760, 231, 1603/75, 6082/74, 2245/ 75, 29/75,
29/75, 356/75, 7042, 1649/75, 29, 2113, 707, 1603, 1194,
1194, 3354/75, 6836/74, 2670/75, 5889/74 respectively) and
CIVIL APPEALS Nos:- 1526-1530, 1663 & 1997 OF 1975
(Appeals by Special Leave from the Judgment and Order dated
26.8.1975 of the Andhra Pradesh High Court in Writ Petitions
Nos :--230, 276, 354, 355, 596, 230 and 230/75 respectively.
CIVIL APPEAL NO. 1532 OF 1975 (Appeal by special Leave
from the Judgment and Order dated 26.8.1975 of the Andhra
Pradesh High Court in Writ Petition No. 4320/74).
CIVIL APPEAL NO. 1533 OF 1975 (Appeal by special
Leave from the Judgment and Order dated 26.8.1975 of the
Andhra Pradesh High Court in Writ Petition No. 2311/75).
CIVIL APPEAL NOS. 1534 & 1661 OF 1975 (Appeals by Spe-
cial Leave from the Judgment and order dated 26.8.1975 of
the Andhra Pradesh High Court in Writ Petitions Nos.
6926/74, and 2019,/75).
A. K. Sen, (In CA. 1245/75), B. Sen (In CA 1506/75} K.
Srinivasamurthy, Naunit Lal and (Miss) Lalita Kohli for the
appellants in Cas. 1241, 1245, 1506-1525, 1770-1771/75.
136
M.C. Bhandare (In CA 1242/75), Eswara Prasad (In CA
1443-1446), A.L. Lakshminarayana (In 1243, 1447-1451/75), A.
Panduranga Rao (In CA. 1460-1461, 1995-1996/75), D. Sudhakar
Rao (In CA 1242/75) B. Kanta Rao for the Appellants in CAs.
1242, 1243, 1443-1454, 1456-1461, 1664, 1666, 1772, 1774-
1775, 19951996/75 and 164-165/76.
B. Sen (C.A. 1462/75) Sachin Chaudhry (CA 1244/75) for
the appellants in C.A. Nos. 1244, 1462-1465, 1467-1498,
1500-1505, 1662, 1667, 1776-1780, 1991-1994/75 and 166/76.
Subodh Markandaya for the appellants in Cas 1526-1530,
1663 and 1997/75.
Rangam and (Miss) A. Subhashani, for the Appellant in
C.A. 1532/75.
A.K. Sanghi for the Appellant in CA 1533/75.
A. Subba Rao for the Appellants in Cas. Nos. 1534 and
1661/75.
Lal Narain Sinha, Sol. Gen. T. Anatha Babu, K.R. Choudhary,
S.L. Setia and (Mrs. Veena Khanna for the Respondents in all
the appeals.
The Judgment of the Court was delivered by
RAY, C.J.--These appeals are by special leave from the
judgment dated 26 August, 1975 of the High Court of Andhra
Pradesh.
The special leave was granted as follows :-
"During the period in question there was an
order of the State Government under section 22-B of
the Electricity Act, 1910 limiting the supply of
electricity to 75 per cent of the previous consump-
tion. The quotas fixed by the Board are very
often below 75 per cent and sometimes as low as 30
per cent. Special leave should be granted
limited to the question whether in the facts of the
order under section 22-B it is open to reduce the
supply to anything less than 75 per cent and charge
penalty of extra charges for that quantity."
The State Electricity Board referred to for brevity as
the Board supplies electricity of two varieties. One is
high tension. The other is low tension. Power is gener-
ated by hydro electrical method by use of river waters and
also by thermal method using coal. The Board fixed quotas
for consumption with effect from March 1972 because power
generated was not adequate to meet the requirements. For a
short period between 7 July, 1972 and 16 August, 1972 these
quotas were lifted. The restrictions were reimposed. An
extra charge for consumption of energy beyond the limits of
quotas was introduced on 25 February, 1973. The charge
was double the usual rate. This continued till 1 August,
1974. The Board introduced on 29 July, 1974 a further cut
in quotas and enhanced the extra charges. The extra
charges were double the usual rates, if the excess consump-
tion was 20 per cent or below that limit over the newly
intro-
137
duced quotas. If the total consumption was in excess of 20
per cent, the extra charge was four times the total excess
consumption. The Board on 20 March, 1973 reduced the quotas
still further retaining the pattern of extra charges.
Weekly quotas instead of monthly ones, were introduced.
A restriction was imposed to the effect that for every 5 per
cent of excess consumption there would be one day’s cut.
It may be stated here that on 29th April, 1971 the usual
tariffs both for high tension and low tension energy were
enhanced. The Board on 1 June, 1974 removed the slab system
and a uniform rate of 14 nP per unit was introduced.
The appellants filed writ petitions in the High Court
for a writ, direction or order to collect from the appel-
lants normal charges for consumption of electricity and not
to disconnect their supply and further order declaring the
restrictions with regard to imposition of quota and the
levy of penalty charges as illegal. The High Court held
that the Board has power to fix quotas or otherwise re-
strict consumption of electrical energy and collect charges
at four times the normal rates.
The appellants obtained leave limited to the question
whether under section 22-B of the Electricity Act, 1910
referred to as the 1910 Act it is open to the Board to
reduce the supply to anything less than 75 per cent and levy
extra charges for excess supply.
The State Government on 6 April, 1972 made an order
under section 22-B of the 1910 Act, inter alia, as follows
:--
"All consumers of electricity (both high
tension and low tension) being billed under high
tension categories I (both normal and alternative
tariffs) II and III and low Tension category V
shall so regulate their use of electricity as not
to exceed in any month, the limits of maximum
demand and energy specified hereunder:
The maximum demand limit will be 75% of the
average monthly maximum demand over the period from
March 1971 to February 1972. The limit for energy
consumption will be 75% of the average monthly
consumption (number of units) over the period from
March, 1971 to February, 1972. The supply to
consumers who violate the restrictions being im-
posed hereunder will be liable to be cut off
without notice. Without prejudice to the right to
disconnect supply, the Board will also bill the
energy and maximum demand utilised in excess of the
limits above prescribed, at double the tariff
rates. Consumers of High tension electricity
being billed under alternative tariff under
Category I will further pay for the excess energy
consumed, energy charges at the rate of 20 paise
per unit and M.D. charges at twice the tariff rate.
X X X X
11--1003 SCI/76
138
The restrictions shall not apply to (i)
Railways, (ii) Hospitals including nursing homes
and Doctors Clinics, (iii) water supply, (iv) for
sanitary arrangements for the public, (v) Radio
Stations (vi) Telephone Exchanges and other catego-
ries totalling 15 in number.
x x x x x x
In the case of consumers who have not availed
supply during the entire period of March, 1971 to
February, 1972 because their loads were seasonal or
for some other reason, the average monthly limits
for maximum demand and energy will be computed with
reference to the period between March, 1971 and
February 1972 during which supply was availed
Of."
This order of the State Government in 1972 was occa-
sioned by three features as recited in the order. First, the
water position in the Hydroelectric reservoirs in the State
became very unsatisfactory because of failure of monsoon. ,
Second, sufficient power was not available to meet the
needs of the State. Third, it became necessary to conserve
the available water with a view to ensuring regular and
uniform supply of electrical energy during the coming
months.
On 8 August, 1975 the State Government stated that the
Government issued several orders commencing 6 April, 1972
and ending 31 July, 1975 placing certain restrictions on the
consumption of electricity "in view of the critical power
supply position." There were several orders on 6 April
1972, 3 May 1972, 16 May 1972, 22 May 1972, 29 May 1972, 9
June 1972 and 22 September 1972. The Government canceled
these orders on 8 August 1975 with effect from 7 July, 1972.
On 20 March, 1975 the Board in its order of that date
referred to its previous orders in the years 1973 and 1974
and the order of 2 January, 1975 and stated as follows:
Because of greatly depleted levels in the Hydel Reservoirs
on account of the low rainfall in the catchmeat areas the
hydel generation in the Andhra Pradesh grid has come down
very much. No assistance was forthcoming from the neigh-
bouring State as from the monsoon of 1974. Two new sets of
Kothagudem Thermal Power Station have not stabilised.
Besides, normal load there has been heavy increase of agri-
cultural loads during the last month due to the onset of
summer. This has resulted in the load going far beyond the
system capability. The graded tariff which was introduced
expecting it to act as a sufficient deterrant to the consum-
ers against exceeding the quotas fixed has not given relief
to the extent expected. It has become impossible to meet
the agricultural demand and save the standing crop at this
crucial stage. The Board in this background decided to
raise power cuts on demand and energy consumption and or-
dered that all high tension and low tension consumers should
so regulate their use of electricity as not to exceed in any
month the limits of maximum demand and energy specified
against each category.
139
Categories mentioned in the order of the Board dated 20
March, 1975 are the Priority Industries, Continuous Process
Industries, Other industries, Essential Services, Low ten-
sion Category-Domestic Supply, Low Tension Category non-
Domestic Supply and Public Lighting. The industries which
had been exempted from power cut before like Fertilizer
Industries, Oil Refineries, Pesticides Manufacturing Indus-
tries, All India Radio were also subjected to 20 per cent
cut both on maximum demand and energy consumption. The
cement industry which was having 100 percent quota was
subjected to. 20 per cent cut. The sugar mills and rice
and Roller Flour Mills continued to, be subjected to 10 per
cent cut both on maximum demand and energy consumption For
closer control over consumption and for disconnecting those
that exceed the quotas, the system of weekly quotas was
revived and was to be implemented. The proportional quota
for the week would be one, fourth of the monthly quota
already fixed. Besides the penal charges already existing,
the Board decided that the services of the consumers would
be liable to be disconnected if they exceeded the quotas
fixed by anything beyond 5 per cent. For every 5 per cent
of excess over the quota the disconnection would be for one
day.
The Board did not subject the low tension domestic
supply category to any restriction. In priority industries
the existing quota of 70 per cent was reduced to 55 per
cent. In food products industries the maximum demand of 50
per cent was not reduced but the energy consumption was
reduced from 60 to 50 per cent. In Continuous Process
Industries the maximum demand and energy consumption were
reduced from 65 per cent to 55 per cent. In other indus-
tries not covered by those categories the existing cut of 50
per cent was not subjected to further cut.
The appellants contend as follows: First, section 22-B
of the 1910 Act gives powers to the State Government to
control the distribution and consumption of energy. The
State Government exercised its powers under section 22-B of
the 1910 Act and reduced the quota to 75 per cent on 6
April, 1972. Therefore any further reduction by the Board
would be illegal. Second, section 49 of the Electricity
Supply Act, 1948 referred to as the 1948 Act does not confer
power on the Board to effect rationing of supply because
that would involve excessive delegation of legislative
power. Further, there is no guidance in section 49 of the
1948 Act to reduce the supply, and therefore, section 49 is
bad. The alternative contention of the appellants is that
unless the Board made Regulations under section 79 (J) of
the 1948 Act it could not ration the supply in exercise of
powers under section 49 of the Act. The appellants contend
that the Board had to lay down the principles in the regu-
lations which the Board is empowered to make under section
79 (J) of the 1948 Act and unless the regulations lay down
the principles under section 79 (J) of the 1948 Act the
Board cannot exercise power under section 49 of the 1948
Act.
The appellants also contend that the State Government
notification dated 6 April, 1972 regulating and restricting
the consumption
140
electricity on the basis of 75% of the average maximum
demand of a consumer between the period March 1971 and
February 1972 remained in force till 2 August 1975, and,
therefore, the Board could not exercise the power of regu-
lating and controlling supply and consumption of electrici-
ty because it was exercised by the State.
The relevant provisions of the 1948 Act are as
follows:--
Section 18: "General duties of the Board: Subject
to the provisions of this Act the Board shall be
charged with generaly duty .. and it shall be the
duty of the Board .... (c) to supply electricity
as soon as practicable to any other licensees or
persons requiring such supply and whom the Board
may be competent under this Act so to supply."
Section 49: "(1) Subject to the provisions of this
Act and
of regulations, if any, made in this behalf, the
Board may
supply electricity to any person ...... upon such
terms and conditions as the Board thinks
fit .............. (4) In fixing the tariff and
terms and conditions for the supply of electrici-
ty, the Board shall not show undue preference to
any person."
Section 59: "The Board shah not as far as practica-
ble .... carry on its operations under this Act at
a loss and shall adjust its charges accordingly
from time to time."
It is also appropriate at this stage to refer
to.the provisions in the Andhra Pradesh State
Electricity Board Power Tariffs contained in Part F
dealing with general terms and conditions of sup-
ply. The relevant provisions are clauses 6.7 and
6.8 of Power Tariffs which are set out hereunder:--
Clause 6.7: "The Board shall have the unilateral
right to vary from time to time, the terms and
conditions of supply by special or general proceed-
ings. In particular, the Board shah have the
right to enhance the rates chargeable for supply of
electricity according to exigencies."
Clause 6.8: "The Board shall endeavour to afford
continuous supply and to restore interrupted supply
as early as possible. The Board shah have the
right to stagger consumer or consumers according to
operational and other exigencies. The Board shall
not be responsible for any loss or inconvenience
occasioned to any consumer, by any interruption of
supply of any kind, whatever be the reason
therefor, unless the interruption is exclusively
attributable to the negligence of the Board."
Reference is also necessary to the form of
agreement for purchase of electricity supply con-
sumption. There are forms and agreements
141
for high tension as well as low tension. The
relevant terms in the form of high tension agree-
ment are as follows:--
"Clause 5: Obligation to comply with requirements
of Acts, and Terms and Conditions of supply:
I/We further undertake to comply with all the
requirements of the Indian Electricity Act, the
Electricity (Supply) Act, 1948, the Rules thereun-
der and the terms and conditions of supply notified
by the Board from time to time."
"Clause 10: Board’s right to vary terms of Agree-
ment:
I/We agree that the Board shall have the unilateral
right to vary, from time to time, the terms and
conditions of supply under this agreement by spe-
cial or general proceedings."
The Low Tension agreement contained inter alia the
following:
Clause 9: "Obligation of consumer to pay all
charges levied by Board:
From the date this agreement comes into force, I/We
shall be bound by and shall pay the Board maximum
demand charges, energy charges, surcharges, meter
rents and other charges, if any, as prescribed in
the terms and conditions of supply notified by the
Board from time to time for the particular class of
consumer to which I/We belong.
"In particular, the Board shall have the
right to enhance the rates chargeable for supply of
electricity according to exigencies."
Clause 10: "Board’s right to vary terms of Agree-
ment:
I/We agree that the Board shall have the unilateral
right
to vary, from time to time the terms and conditions
of supply under this agreement by special or gener-
al proceedings."
These provisions indicate that the Board is under a duty
to supply electricity to consumers who enter into contracts
with the Board. The duty to supply however is inherently
limited by its capacity. If the Board is unable to supply
electricity to meet the full demand of consumers then neces-
sarily it can only make limited supply.
Clause 6.8 of the Terms and Conditions of the Power
Tariffs establishes these features. The first part of
clause 6.8 speaks of the duty of the Board to make all
endeavours to meet the whole demand of the consumers.
Clause 6.8 also confers power on the Board to stagger sup-
ply. It is obvious that if the Board cannot generate the
energy required to meet the .full demand of the consumer it
will have to curtail the supply.
The appellants realise that the Board has power to
curtail supply. But the appellants contend that the Board
has no. power to, exempt certain categories of consumers and
impose different percentage of cut.
142
The appellants contend that the Board has no power
under section 49 of the 1948 Act either to impose different
percentage of cuts in the supply to consumers or to impose
penalty. The appellants contend that only if the Board
introduced principles by making regulations under section
79(j) of the 1948 Act then the Board could have applied
these principles in imposing cuts.
The contentions of the appellants are unsound. Sec-
tion 49(4) of the 1948 Act states that in fixing the tariffs
and terms and conditions for the supply of electricity the
Board shall not show undue preference to any person. This
section embodies the same principle which is enunciated in
Article 14 of our Constitution. The Board is a State for
the purpose of Part III of our Constitution. In the
present case, we, are, however, not concerned with the
application of Article 14. All that requires to be appre-
ciated is that the provisions of Article 14 of our Constitu-
tion and section 49(4) of the 1948 Act are similar in prin-
ciple. It is the principle of equality or non-discrimina-
tion. Section 49(4) of the 1948 Act does not mean a mechan-
ical equal treatment, It is fairly settled that equality
before the law does not mean that things which are different
shall be treated as though they were the same. The obliga-
tion not to discriminate involves both the right and the
obligation to make reasonable classification on the basis of
relevant factors. To illustrate, cutting down 50 per cent
of the needs of a hospital and the needs of industries
producing consumer goods cannot be treated on the same
footing. It would be justifiable to treat them with refer-
ence to their urgency, their social utility and also the
impact on the conservation and economics in the available
supply of electric power. The guidance is clearly fur-
nished by the principles embodied in section 49(4) of the
1948 Act similar to Article 14 of our Constitution.
The recognition of the fact that the Board can introduce
rationing by making a regulation under section 79(j) of the
1948 Act necessarily involves a concession that the Board
has the power to enforce rationing and to enunciate the
principle for determining the scheme of such rationing. A
regulation can be made only in the exercise of a power which
exists in the Act. The making of a regulation is not a new
source of power but regulates the exercise of power which
exists. Section 49(1) of the 1948 Act therefore gives a
general power which could be regulated by making of a regu-
lation. The language: of section 49 of the 1948 Act
shows that the power can be exercised without making any
regulation. The expression "regulation" occurring in
section 49(1) is qualified by the expression "If any". It
is, therefore, manifest that if the power is existing, it
must be exercised according to valid principles consistent
with the provisions of section 49(4) of the 1948 Act. This
Court rejected the suggestion that the President or the
Governor cannot settle terms and conditions of the public
servants without making rules under Article 309 of the
Constitution. If regulations were made, such regulation
would have to be in conformity with section 49(4) of the
1948 Act and in the exercise of its power the Board would
have to abide by regulations.
143
The argument of the appellants that section 22-B of the
1910 Act which confers power on the State Government to form
an opinion as to the necessity or expediency of taking
action for the maintenance of the supply and securing the
equitable distribution of energy, exhausts the power of
distribution of energy and the Board has no power under
section 49 of the 1948 Act to operate upon the field of
supply of electricity is unsound. Section 22-B of the 1910
Act is only enabling while the Board must inevitably curtail
supplies. If the Board must curtail supplies it is curious
to. suggest that the cuts must not be based on rational
equitable basis consistent with principles of reasonable
classification within the meaning of section 49(4) of the
1948 Act. Section 22-B of the 1910 .Act was introduced in
1959. It did not expressly or impliedly repeal or cut down
the content of the power of the Board in section 49 of the
1948 Act which was enacted in 1948 and reproduced in 1966.
There is no conflict in the existence of power at different
levels. The higher authority may have the power to over-
ride the order of the lower authority. Powers under sec-
tion 22-B of the 1910 Act and under Section 49 of the 1948
Act may have some overlapping features. Section 49 contains
a much larger power because the Board is the authority
primarily charged with all aspects of development and supply
under sections 18 and 49 of the 1948 Act.
It may be stated here that on 6 April, 1972 the State
order effected cut in supply. The Board also fixed quotas
from March, 1972. Between 7 July, 1972 and 16 August, 1972
there was no cut in supply. The order under section ’22-B of
the 1910 Act was not effective after the month of July,
1972. The orders of the Board effecting cut in supply were
effective prior to July, 1972 and also from August, 1972.
The appellants enjoyed unrestricted supply of electricity at
ordinary rates from 7 July, 1972 to 16 August, 1972. The
appellants did not raise any contention in the High Court
that the State order of April, 1972 was effective all
throughout. If such facts had been challenged the Board
would have given proper materials by way of facts to show
that the Board order was to the knowledge of everybody not
effective after the month of July, 1972. When the Board
on 7 July, 1972 decided to remove all the restrictions
imposed earlier it is manifest that the Board tried best to
maintain the terms and conditions mentioned in clause 6.8 of
the Power Tariffs of the State Electricity Board. The Board
filed in the High Court the statement showing consumer
requirement of energy in one column, actual generation in
another column, consumers’ requirement of demand in Mega
Watts in another column and actual demand in Mega Watts in
still another column from the month of February 1973 right
upto June, 1975. The High Court held’ that the correctness
of the statement was not disputed by the appellants and the
High Court did not doubt the accuracy of the statement.
The High Court held that the actual consumer requirement has
all throughout been more than the actual generation. The
fact that the actual generation has been lower than the
consumers requirements shows that the Board has in a fair
and just manner imposed cuts whenever situation merited the
same.
There is no, conflict between the order of the Govern-
ment in April, 1972 and the orders of the Board in the year
1975 for these
144
reasons. The restrictions imposed by the Government ceased
on 7 July 1972 when in the opinion of the Government scarci-
ty conditions disappeared. This is manifest from the
Government Order dated 2 August, 1975. The appellants
cannot be allowed to urge that the Government Order of the
year 1972 continued after 7 July, 1972. The appellants
acted upon the footing that the restrictions had been lifted
and consumption was even more than their normal maximum
demand on normal rates. Even if the Government Order of
1972 continued the restrictions imposed by the Government
Order and the Board Order were cumulative and not contradic-
tory. The Government Order was addressed to the consumers
not to consume in excess of 75 per cent of their normal
maximum demand. If the appellants sought any relief in
respect of consumption in violation of the order under
section 22-B of the 1910 Act it would be an offence under
section 41 of the 1910 Act. Such a contention cannot be
allowed to be raised.
Section 49(4) of the 1948 Act casts a duty on the Board
not to show any undue preference in fixing the tariff and
terms and condition. Clauses 6.7. and 6.8 of the Power
Tariffs. show that the Board shall have the right to stagger
or curtail supply of electricity to any consumer according
to operational and other exigencies. The Board can therefore
release supply or block the same areawise and has no means
of enforcing the quota except through sanctions. Such
sanctions can take any reasonable form either disconnection
in case of gross and persistent defaults or the lesser
sanction of enhanced tariff.
The power to enhance the tariff is included in section
49 of the 1948 Act. The expression that the Board "may
supply electricity on such terms and conditions as the Board
thinks fit" in section 49 (1 ) is related to the terms and
conditions of the agreement referred to above. Section 49
of the 1948 Act in sub-section (1) confers power on the
Board to supply electricity to any person not being a
licensee upon such terms and conditions as the Board
thinks fit. This power contains the power to regulate and
ration supply. The terms and conditions to which reference
has been made make explicit what is implicit in the power.
The terms and conditions contain the power of the Board
to enhance the dates. Section 49(3) of the 1948 Act states
that the Board has power to fix different tariffs for the
supply of electricity having regard to the geographical
position of any area, the nature of the supply and purpose
for which supply is required and any other relevant factors.
The expression "any other relevant factors" is not to be
construed ejusdern generis because there is no genus of the
relevant factors. The combined effect of section 49 of the
1948 Act and the terms and conditions of supply is that
having regard to the nature of supply and other relevant
factors particularly when there is shortage of electricity
the Board has power to enhance the rates. If there is
shortage of electricity there is to be restriction on sup-
ply. The Board can disconnect supply if the quota is
exceeded. The Board can also impose higher rates if the
quota is exceeded. The imposition, of
145
higher rates is only to sanction the rigour of ration by
making persons who exceed the quota liable to pay higher
rates.
The High Court upheld the content of the power of the
Board under section 49 of the 1948 Act and also to charge
enhanced tariff for exceeding the allotted quota. It is
manifest that the requisite power exists in the Board and
this Court did not permit the finding of the High Court to
be re-examined; nor the question whether the power had been
properly exercised within the limits of section 49 and the
terms of the agreement because the terms were directly
corelated to the availability of electricity for being
supplied. From 7 July, 1972 up to 16 August, 1972 the
appellants enjoyed unrestricted supply at ordinary rates.
The appellants took advantage of it. Section 22-B order to
the knowledge of everybody was not effective after July,
1972. The appellant cannot assert the authority that the
Government Order of April 1972 was effective. (See South-
eastern Express Company v.W. 1. Miller(1).
There is no question of excessive delegation because
power is conferred by the statute.
In Indian Aluminium Company etc. v. Kerala State Elec-
tricity Board(2) this Court held that under section 49(3) of
the 1948 Act the Board stipulates for special tariff for
supply of electricity at specified rates from time to time.
For the foregoing reasons the conclusion is that the
Board has power under section 49 of the 1948 Act to regulate
supply and also to fix higher rates for consumption on
excess of quota. There is no conflict between section
22-B of the 1910 Act and section 49 of the 1948 Act with
regard to regulating or restricting highter consumption.
The appeals are therefore dismissed. There will be no
order as to costs because the High Court made similar order.
P.H.P. Appeal
dismissed.
(1) 68 L. Ed. 541.
(2) [1976] 1 S.C.R. 70.
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