DEUII CLO'l1I & GENERAL MILLS <n!PANY LTD. & ANR. v. RAJASTllAN STATE ELECTRICITY BOARD· & ANR.

p. 676 Copy page pinpoint

A ment. As to the claim for the period from January 1, 1971 to , May 31, 1974, the learned counsel urges that the Board is r seeking to'recover from the appellants charges for the supply of electricity as per normal tariff prescriqed under the Board's notification dated April 26, 1969. As to this he mainly relies on the exclusionary clause (3) of the" said tariff notification. As to the period from June 1, 1974 to B February 7, 1976 for which the Board raised a demand for payment of the charges for the supply of electricity at normal tariff framed by the Board's notification dated May 28, 1974, "' apart from relying on similar exclusionary clause contained therein, he submits that the Board never made a demand on the appellants that they would have to pay for the supply of c electrical energy at normal tariff as framed by the Board's tariff notification dated May 28, 1974. In fact, he submits that there was no letter sent by the Board to the appellants like the one dated December 22/24, 1970 by which it made a demand for payment of charges at uniform tariffs framed by the Board's tariff notification dated April 26, 1969. The learned 'I-- D counsel urges that as is clear from the terms of s.49B of the Act, the demand to be validated had to be raised prior to February 7, 1976 and not on a date subsequent thereto. He submits that it was therefore not open to the Board to make a demand from the appellants for payment of charges for the period commencing from June 1, 1974 and ending with February E , 6, 1976 according to the uniform tariff of 1974. There is, in our opinion, considerable force in the argument.

Dr. Chitale tried to impress upon us that s.49A of the Act must after February 7, 1976, the date of prorulgation of :\. the Ordinance, operate on its own force and therefore the F Board was entitled to raise demands at uniform tariffs under schedule LP/HT-1 under the Board's tariff notification dated May 28, 1974 from that date till November 4, 1976 and there- after as pet the revised uniform tariffs as framed by the Board's notification dated November 4, 1976. As regards the past period i.e. as from January 1, 1971 to February 6, 1976 G- he contends that s.49A could still be had recourse to by the Board without the aid of s.49B, The submission proceeds upon \- the basis that the-power of the State Legislature to make a law under Entry 38 of List III of the Seventh Schedule carries with it the ancillary power to make a law with retrospecth•e H

DELHI CLOTH MILLS v. STATE ELECT, BOARD [SEN, J, ] 677

~effect. It could therefore enact a provision like s. 49A A prescribing a rate of uniform tariff under s.49(1) with retrospective effect as from January 1, 1971,' notwithstanding anything contained in the Act or in any agreement, under- taking, commitment or concession to the contrary entered into by the Board after the first day of April 1964. We find it rather difficult .to uphold the contention. The question does not really arise because the Legislature has not framed a law .-' for the imposition of uniform tariffs on consumers with retrospective effect. S.49A is primarily enacted to override the provisions of the Act or of any agreement, undertaking, commitment or concession to the contrary made by the Board or the Government prior to the first day of April 1964 for the supply of electricity to consumers at a concessional rate relatable to s.49(3) of the Act. That is the clear effect of the non-obstante clause which removes the legal hurdle placed in the way of the Board framing uniform tariffs under s.49(1) of the Act for such class of consumers. Sub-s. (1) of s.49A ----< provides that it shall be lawful for the Board to revise the tariffs from time to time and to frame uniform tariffs for the supply of electrical energy. The words 'it shall be lawful' used in s.49A (1) are essentially in the nature of conferment of a prospective power. Sub-s. (2) thereof however further states that in revis:l.ng or framing such tariffs under sub-s.(l), the Board shall be guided by the principles set out in s.59 of the Act. It then goes on to say that as respects any period commencing on and from September 16, 1966 the Board shall also be governed by the principles laid down in sub-ss.(2), (3) and (4) of s,49A. Sub-s.(3) makes all such .(agreements, undertakings, commitments or concessions as are referred to in sub-s. (1), insofar as they are inconsistent with the provisions of sub-ss.(1) and (2) and to the extent of the tariffs fixed or provisions made therein for such fixa- tion, be void and shall always be deemed to have been void. A combined reading of these provisions shows that the Board is relieved of the shackles of the contractual obligations flow- ing from the agreements relatable to s.49(3), and the Board is empowered in terms of s.49A to revise the tariffs or frame G ._.., <miform tariffs with respect to consumers enjoying special benefits as from September 16, 1966.

As already stated, the Board could not on the strength of s.49A alone recover the difference between the uniform H

678 SUPREME COURT REPORTS [19861 1 s.c.R.

A tariffs fixed from time to time end the agreed rate of supply ,_, from the appellants for the period from January 1, 1971 to February 6, 1976 without the aid of a.49B. S.49B on its terms has no application unless there was a demand raised or created prior to February 7, 1976, the date of pro!Dllgation of the Ordinance. There is therefore insuperable barrier in applying B the uniform tariff under schedule LP/HT-1 framed by the Board's tariff notification dated May 28, 1974 from the bill- ing month of July 1974 i.e. from June 1, 1974 to February 6, ~

1976. Although the uniform tariff under schedule LP/HT-1 of 197 4 was brought into force from the billing month of July 1974 i.e. with effect from June 1, 1974 the Board never inti- c mated the appellants that they would have to pay charges for the supply of electricity to them at that rate. Undoubtedly, no letter like the one dated December 22/24, 1970 demanding payment of charges for the supply of electricity was however written by the Board to the appellants intimating them that they would be governed by the schedule LP /HT-1 framed by the , D Board's tariff notification dated May 28, 1974. That being so, '~ · the appellants would now be liable for the period in question to pay charges at the uniform tariff as per schedule HS/LP/- HT-1 framed by the Board's earlier tariff notification dated April 26, 1969,

E Liability to pay the general surcharge.

Th.at takes us to the question whether the Board had no power under the Act to levy a surcharge. The word 'surcharge' is not defined in the Act. Plainly, the word 'surcharge' means an additional or extra charge or payment: Shorter Oxford ). F English Dictionary, p.2199. As held by this Court in Bisra Stone Lime Coiipany Ltd. & Anr. v. Orissa State Electricity Board & Anr. (1976] 2 s.c.R. 307 a surcharge is in substance an addition to the stipulated rates of tariff and enhancement of the rates by way of surcharge is well within the power of the Board to fix or revise the rates of tariff under the provisions of the Act. In the Indian Almd.niua Collpany's case, supra, there was no provision in the agreement with regard to the revision of tariff, such as we find in cl.18 of the "- agreement. We IDlSt however refer to the decision of this Court in M/s. Titagarh Paper Mills Ltd. v. Orissa State Electricity Board & Anr. [1975] 2 S.C.R. 436 where the Court taking into consideration cl.13 of the agreement therein which was in

DEUII CLOTH MILLS v. STATE ELECT. BOARD (SEN, J.] 679

'<term similar to cl.18, had to consider the scope and effect of ss 149 and 59 of the Act and following the decision in the Tujlfan Alualnillll Company's case stated:

''Neither s. 49 nor s. 59 confers any authority on the Board to enhance the rates of supply of electricity where they are fixed under a stipula- B tion made in an agreement. The Board has no authority under either of these two sections to override. a contractiial stipulation and enhance unilaterally · the rates for the supply of electri- city." ·

The Court accordingly· in Bisra StOll!! Li.ie Collp8ny'a case held c that J:he power of revisi<;m of- rates of the _Board under s.49(1) and (2) as also under s.59 of the Act remained under sus!lended animation during the subsistence of a statutory agreement entered into in conformity with s.49(3) of the Act. But this ---~ pro tempore ban on revision of rates could only last till th~· legislature introduced ss.49A and 49B of the Act empowering the Board to revise the rates and frame uniform tariffs with retrospective effect. This was eonstitutionally permissible as indicated by Bhagwati, J. in the Indian AJqalnf1111 Colllpany'a case in these words :

"(A) case may conceivably arise where there may be an overriding statutory provision which expressly or by necessary implication authorises. the. public authority to set at naught, in· given circumstances, a stipulation though made in exercise of a statutory power." F ·' The Board was therefore well.within its rights in raising a demand by its letter dated February 1, 1971 that the appellants would be subject not only to uniform tariffs under Schedule HS/LP/HT-1 applicable to all large industrial consumers as from January 1, 1971 in terms of cl.18 of the agreement but also be subject to the general surcharge of 15% G _,for the period commencing on and from September 16, 1966, the date mentioned in sub-s.(2) of s.49A. The general surcharge of 15% as also the uniform tariff w~re part of the general burden borne by all consumers alike. Whatever may have been the position ilnder the old s.49, the new section as substituted by H

680 SUPREME COURT REPORTS [19861 1 s.c.R. A the Amendment Act 30 of 1966, makes it plain that the Board ;r can fix uniform tariffs. The power to fix uniform tariffs IDJSt necessarily include power to make uniform increase in tariffs. S.49A had the effect of removing the Board from the shackles of the agreement to supply electricity at a concessional rate entered into under s.49. The effect of the non-obstante clause B in sub-s.(l) of s.49A was to nullify the agreement.

Subsidiary issues : Article 31(2),

DEUll CLOTH MILLS v. STATE ELECT. BOARD [SEN, J,] 681

A interest of a person, detrime.nt is suffered by him, and a corresponding benefi.t accrues to the State, there would be transfer of ownership of such right or interest to the State. The question would always be : . who is the beneficiary of the extinguishment of the right or interest effectuated by the law ? B If it is the State, then there would be transfer of ownership of the right or interest to the State, because what the owner of the right or interest would have lost by reason of the extinguishment would be the benefit accrued to the State."·

The Court observed in K.K. Patbak's case that the direct effect of the impugned Act was to extinguish or put an end to c the debts due from the Life Insurance Corporation to class Ill and Class IV employees. This was not disputed on behalf of the Life Insurance Corporation and the controversy was whether the •.. , extinguishment of these debts involved any transfer of ownership of property to the Life Insurance Corporation. It was conceded by the learned Attorney-Qmeral on behalf of the D Life Insurance Corporation as a proposition of law that an ill.egal deprivation of a pecuniary benefit to which any person is entitled under any law amounts to deprivation of property within the meaning of Art.31(2), He however sought to make a distinction between extinguishment and transfer of ownership of a debt and contended that when ownership of .a debt is E transferred, it continues to exist as a debt in the hands of the transferee, but when a debt is extinguished it ceases to ~exist as a debt and it is not possible to say that the .debtor has become the owner of the debt, In dealing with the contention, the Court observed at p. 368 of the Report, that where by reason of extinguishment of a right or interest of a F person, detriment is suffered by him, and a corresponding benefit accrues to the State, there would be transfer of ownership of such right or interest• to the State. The Court stated that the question would always be : who is the beneficiary of the extinguishment of the right or interest .effectuated by the law? If it is the State, then there would G )jbe transfer of ownership of the right or interest to the State, because what the.owner of the right or interest would have lost by reason of the extinguishment would be benefit accrued to the State. It referred to the view expressed by Hegde, J, in Sta~e of Madhya Pradesh v. Banojirao Shinde, H

682 SUPREME COURT REPORTS [19861 i s.c.R.

[1968] 3 S.C.R. 489, that it was possible to view the aboli-', tion of cash grants under the Madhya Pradesh law impugned in that case as a statutory transfer of rights of the grantees to the State and extended the same principle in judging the validity of s.³ of the impugned Act, and added :

B "When a debt due and owing by the State or a corporation owned or controlled by the State is extinguished by law, there is transfer of ownership·'- of the mqney representing the debt from the creditor to the State or the State owned/controlled corporation, c *** *** *** *** *** The extinguishment of the debt of the creditor with corresponding benefit to the State or State owned/ controlled corporation would plainly and indubi- 'r D tably involve transfer or ownership of the amount representing the debt from the fotmer' to the latter. This is the real effect of extinguishment of the debt and by garbing it in the form of extin- guishment, the State or State owned/controlled corporation cannot obtain benefit at the cost of E the creditor and yet avoid the applicability of Art.³¹, clause(2)."

The Court also observed that the verbal veil constructed by efili)loying the device of extinguishment of debt cannot be per-~· mitted to conceal or hide the real nature of the transaction. F We fail to appreciate the relevance of the decision in M.K. Patbalt's case to the instant case. The fallacy underlying the agreement is that it proceeds on the assumption that there is by reason of ss,49A and 49B of the Act an illegal depriva- tion of any pecuniary benefit to which the appellants were G entitled and the extinguishment of the right they had to the supply of electricity at concessional rate for a period of 20~ years in accordance with the agreement amounted to a depriva- tion of property within the meaning of Art.31(2) of the Cons- titution, While it is true that the concept of 'property' in Art.³¹ is not a narrow concept and is used in a comprehensive H

DELHI CLOTH MILLS v. STATE ELECT. BOARD [SEN, J. ] 683

A 'f sense, any legal right which can be enforced through a court is a right in the nature of property within the meaning of Art.³¹. According to the Court in M.M. Pathak's case, 'Even an actionable claim is 'property' in Art.³¹ and can be compul- sorily acquired under cl.2 thereof'. But it is not necessary B to enter upon the controversy whether the State's power of acquisition of property under Art.31(2) extends to choses of action for purposes of this case. All that we need notice is .~ that the majority in M.M. Patbak's case, accepted the view of Hegde, J. in the ~ Purse case that any right which was enforceable through courts was 'property' , but it does not logically follow that the extingl'.ishment of the right to get electricity at concessional rate by reason of ss.49A and 49B c of the Act for the period subsequent to January l, 1971 neces- sarily attracted Art.31(2). All that the appellants had under their contract with the Board was a defeasible right by reason of cl.34(b) of the agreement as pointed out by us above. The appellants had contracted themselves by cl.34(b) to be subject -.....to any subsequent legislation. All that s,49A of the Act does D is to strike at the agreement between the parties. It is an enabling provision and empowers the Board to revise the tariffs from time to time and to frame uniform tariffs for supply of electricity to a class of consumers enjoying special' benefit under agreement entered into under s.49(3). The Board E undoubtedly was competent to review the tariff in terms of cl.18 of the agreement as from January 1, 1971. S.49A liberates the Board from the constraints of the agr~ed rate under the agreement entered into by the Board with the ~appellants under s.49 of the Act and.empowers the raising of demand according to the uniform tariffs. Here, there was no F debt due or owing to the State or a Corporation owned or controlled.by the State.

Where a law does not, in reality, affect a transfer of ownership or possession, Art.31(2) cannot be attracted. In order to constitute acquisition within the meaning of G Art.31(2), there must be transfer of ownership of property to the State or to a Corporati_on owned or controlled by the -1 State. Cl.2(A) to Art.³¹ introduced by the Constitution (Fourth Amendment) Act, 19S5 made clear what was meant by 'acquisition or requisitioning' within the meaning of cl.(2). Unless the taking of property had taken place in either of the H two ways, there was no obligation to pay compensation under

684 SUPREME COURT REPORTS [1986] l s.c.R.

A the Constitution. It can hardly be suggested that the '>' extinction of the right the appellants had under the contract with the Board to get electric supply at a concessional rate under cl.18 of the agreement for the period after January 1, 1971 when revision of tariff was due under cl. 18 thereof, amounted to acquisition of property under cl.31(2). Further, B there was no question of any transfer of money representing any debt owed by the Board from the appellants which stocid extinguished by reason of ss.49A and 49B of the Act. We are ~ clearly of the opinion that the principles laid down in M.M. Pathalt'a case are in no way attracted to the present case.

c Article 14

The contention based on Art.14 and Art.19( l )(f) and (g) need not detain us for long. Taking up the contention that the raising of demand by the Board by its letter dated February 1, 1971 for Rs.ll,67,959.95p. at normal tarrif for the billing month January 1971 under Schedule HS/LP/HT-1 applicable to all r/ D large industrial consumers as per the Board '.s tariff notification dated April 26, 1969 together with general surcharge of 15% thereon, and by its letter dated March 12, · 1976 for Rs.21,35,506.72 p. at normal tariff for the billing month February 1976 under Schedule LP/HT-1 applicable to such large industrial consumers framed by the Board's tariff notification dated May 28, 1974 together with general surcharge of 15% thereon, was violative of Art.14 and therefore constitutionally impermissible inas1111ch as the public sector undertakings in the State like the Hindustan ~ Zinc Limited and Hindustan Copper Limited which were similarly circumstanced were not subjected to any such liability and such differential treatment was without any reasonable classification. The contention 1111st be rejected at the very threshold. There is no averment made by the appellants in any of the petitions filed before the High Court that while the Board purported to raise or create demands as against the appellants for payment of the difference between the uniform tariifs and the agreed rate as respects the period beginning 1 • from January 1, 1971 by making the uniform tariffs of 1969 and 1974 applicable to them together with the general surcharge of 15% thereon, the large public sector undertakings viz. the Hindustan Zinc Limited and the Hindustan Copper Limited were allowed the privilege of a concessional rate for the supply of

DELHI CLOTH MILLS v. STATE ELECT. BOARD [SEN, J. ] 685

A ~lectrici tyto them by virtue of agreements entered into under s.49. On the cont.rary, the Board in its counter-affidavits specifically pleaded that all large industrial undertakings .with capital investments several times more than that of the appellants were paying for the supply of electricity at the normal tariff. The Board particularly gave the instances of B the two public sector undertakings Hindustan Copper Ltd. and Hindustan Zinc Ltd., which were both industries controlled by ,,,.the Government of India and wer.e taking heavy loads with huge investments, were paying at the normal tariff, For instance, Hindustan Copper Ltd; whose investments were to the tune of over Rs.100 crores were paying for the consumption at the normal tariff although the load of that industry was 31,000 'i!VA comparable with the load of the industry set up by the c appellants which was 29,412 'i!VA. The same was the case with Hindustan Zinc Ltd. We may set out the relevant averment which goes thus

"It is wrong to say that 1.4.64 has been appointed as the date to give any benefit to any Corporation owned or controlled by the Central Government. So far as the Corporations controlled by the Central Government are concerned, it is submitted that Hindustan Copper, which is equally a large consumer as the petitioner company, did not get any supply of electricity at a rate different from what is fixed by the uniform tariff. · As for the other concern namely Hindustan Zinc, it was commissioned in January 1968 and ever since it was charged at the uniform tariff framed in 1964 plus general surcharge of 15% imposed in 1966, No concession was given to it at the time when it started function- ing. The only concession given was that in 1969 when the rates were revised, the revised rates were not applied to Hindustan.Zinc and it was continued to be charged at the uniform tariff of 1964 plus 15% surcharge till April, 1974. Since May 1974 the increased tariff of 1969 was applied to Hindustan

- Zinc also and the new tariff of 1974 ever since its coming into force is applied to it. It is, there- fore, absolutely incorrect to say that 1.4.64 is fixed in order to give any benefit to the Corpora- tions controlled by the Central Government because H

686 SUPREME COURT REPORTS [1986] 1 s.c.R.

A Hindustan Zinc started production someti~ in 1968r and Hindustan Copper llllCh later. The date 1.4.64 is therefore more reasonable being the date on which the uniform tariffs were framed by the Board."

The Board further averred that apart from these two Corporations there are several other industries controlled by ll the Central Government or the State Government commissioned after April 1, 1964, and all these industries were paying at the normal tariffs fixed by the Board from time to time. --

The argument of differential treatment is an argument of despair. The Board has averred that there is one grid which is c fed from supplies from different sources whether thermal, hydel or atomic and it was impossible to say what power calbe from which source. In 1971 the Atomic Power Project started to supply power and the Board was being built at the rate of about 14p. per unit. Later on, due to the breakdown of this source the Board had to purchase large quantum of electricity 'r- - D from various other sources at a cost falling between 18 to 19p. per unit. This was done in order to maintain the supply of electricity to the consumers in the State, including the appellants. It is evident that the cost of generation in the grid was far higher than the concessional rate of 3p. per unit at which the appellants were getting the supply. As a result E the Board was incurring very heavy losses on account of this low rate for a large bulk consumption. lt would have been unreasonable for the Board not to have applied the uniform tariffs to the appellants as from January 1, 1971 when the Board derived the power to revise the rate under cl.18 of the-f:- agreement. The Board by its letter dated December 24, 1970 F after drawing the attention of the appellants to cl.18 of t.he agreement. The Board by its letter dated December 22/24, 1970 after drawing the attention of the appellants to cl. 18 of the agreement, intimated that they would be charged as from January 1, 1971 at the normal tariff schedule HS/LP/HT-1 fram- ed by the Board's tariff notification dated April 26, 1969 G plus 15% general surcharge thereon. It was stated that the component of cost of generation had been worked out in the~ office of the Board and it was higher than 25% of the cost _ fixed at the time of the execution of the agreement, as detailed therein. The component of cost of generation during the year 1969-70 was 5.17p:/Kwh, This, we are informed, works H

DELHI CLOTH MILLS v. STATE ELECT. BOARD (SEN, J,] 687

A '-but to 7.67 p. per unit without the general surcharge of 15% and to 8, 73p. per unit including the surcharge, The conces- sional rate as stipulated in cl. 17 of the agreement was more or less 3p. per unit. The uniform tariff of '1969 works out approximately to 7.67p. per unit, the uniform tariff of 1974 at 14.64p. per unit, the uniform tariff of 1976 at 16.0lp. and B the uniform tariff of 1978 at 18.83p. The appellants were thus practically getting their electricity free of all charge. Even -the uniform tariff under HS/LP/HT-1 was very Ullch less than the price at which the Board was getting its supply, In the premises, there was no reason why the appellants should not be treated alike with all other large industrial undertakings which were all subjected to payment of the uniform tarrifs c fixed from time to time. The contention based on Art.14 U11st therefore fail,

Article 19(l)(g} SDd (g).

The next contention based on Art.19(l)(f) and (g) cannot obviously prevail. The present case concerns only with sale of goods i.e. electricity and the price to be paid therefor, for 'tariff' is nothing but the price. The contract itself provided for revision of the rate under cl.18 of the agreement after January l, 1971. The Board was within its powers in applying .the uniform tariffs to the appellants after the period stipulated for had expired. There was nothing unreasonable for· the Board to have enforced the uniform tariffs as against the appellants as from 'January l, 1971. ~-Reasonableness of the increase in tariff is established by the ....--fact that the Board was not bound to supply electricity to the appellants at a concessional rate by incurring operational losses beyond that date. The appellants have not shown nor produced any material to show that they have suffered any loss on account of the increase i~ tariff, grievance was made on behalf of the Board that the appellants had not despite 1 repeated requests produced the balance-sheets to show how the ' increase in tariff made serious in-roads·on their business. At G It th,e hearing before us, learned counsel for the appellants f ~placed the annual reports of the Delhi Cloth & General Mills Ltd. for the years 1978-79 to 1983-84, and the profit and loss account of Messrs Shriram Vinyl & Chemical Industries from the years 1965-66 to 1982-83, In these reports it is stated that the claim of the Board for payment of the difference between H

688 SUPREME COURT REPORTS [1986] 1 S.C.R.

A the uniform tariffs and the agreed rate had been upheld by. the\-- High Court and that the Company had preferred appeals before this Court. It is further stated that in compliance with this Court's interim order directing them to pay Rs.³ crores on account of the difference in five quarterly instalments commencing from December 1980, ·it had paid the instalments as directed which were debited to the Profit & Loss Account and treated as allowable deduction for computing the provision for taxation in the respective earlier years. It is also stated~ that as at June 30, 1984 there was an unprovided liability on this account of 12 crores 16.44 lakhs which includes interest of 5.09 crores. A memorandum of hypothecation had been executed creating a charge on the whole of the movable plant, machinery and equipment .of the PVC plant at Kota in favour of the Board for a~ amount of Rs.4.57 crores for which Rs,60.92 lakhs in fixed deposit accounts with the banks had been given as security, The Profit & Loss Account of the PVC plant at Kota, it is stated in foot note 4 : From the year 1980-81,, D 100% payment to -RSEB has been made on the basis of uniform " - tariff, under orders of the-Supreme Court. There is nothing to show that the appellants had not the capacity to bear the burden of uniform tariffs. It cannot be said that the impugned demands made by the Board as against the appellants were confiscatory in nature. When all the large industrial E undertakings including the public sector undertakings of the Government of India and the State Government were paying for the supply of electricity at uniform tariffs fixed from time to time, the appellants had no right to claim illlllllnity from it. ~-

F Promissory estoppel.

Question of promissory estoppel does not really arise and, in our opinion, rightly not pressed. The appellants hiive laid no foundation in the pleadings for application of the doctrine of promissory estoppel. There is no question of any G estoppel against the Board inas11J.1ch as the appellants did not open their PVC plant on account of any assurance or promise by \.- ~ the Board. The opening part of the agreement itself shows that the appellants approached the Board for supply of high tension power for their industrial complex and the Board complied With the request. There was thus no question of any promise. Even H otherwise, the appellants have not made out that but for the

DELHI CLOTH MILLS v, STATE ELECT, BOARD [SEN, J. ) 689

A 'i statutory contract for supply of electricity at a concessional rate under s.49 they would not have established their industry. It is significant to note that there were number of incentives offered by the State Government to enterpreneurs to set up their industries in the State, such as, land at conces- sional rates, reduced development charges, facilities of B railway siding free of cost and free of rent, reduced charges for industrial water, special arrangement regarding disposal ~ of affluence, loan for subsidiary housing schemes, etc. In any event, the Board is not the Government and the appellants cannot rely on promissory estoppel for the incentives offered by the Government. c To sum up : (1) By virtue of the provisions contained in ss.49A and 49B of the Electricity (Supply) Act, 1948 as introduced by the Electricity (Supply) (Rajasthan Amendment) Act, 1976, it was lawful for the Rajasthan State Electricity Board to revise the special rate of tariff agreed upon and to raise a demand against the appellants by its letter dated D February 1, 1971 for payment of the difference between the uniform tariff under schedule HS/LP/HT-1 applicable to all large industrial consumers under the Board's tariff notification dated April 26, 1969, and the concessional rate in terms of cl.18 of the agreement between the parties dated July 28, 1961 for the period from January 1, 1971 upto E February 6, 1976 i.e. the date of pro1111lgation of the Electricity (Supply) (Rajasthan Amendment) Ordinance, 1976, as also the general surcharge of 15% thereon levied by the Board by its tariff notification dated April 26, 1969 as from ~ September 16, 1966 onwards. (2) The Board's letter dated March 12, 1976 being subsequent to the date of pro1111lgstion of the F Ordinance, the demand raised by the Board for payment of the revised uniform tariff under schedule LP/HT-1 applicable to all such large industrial consumers under the Board's tariff notification dated May 28, 1974 purporting to act under ss,49A and 49B of the Act read with cl.18 of the agreement, was not validated by s.49B and therefore the Board was only entitled G to recover uniform tariff at the same rate i.e. under schedule r• HS/LP/HT-1 of 1969 for the period from July 1, 1974 to February 6, 1976, that is, prior to the date of pro1111lgation of the Ordinance. (3) The Board was entitled by the terms of $.49A to raise a demand for payment of the revised uniform tariff under schedule LP/HT-1 of 1974 w.e.f. February 7, 1976 H

690 SUPREME COURT REPORTS [19861 l s.c.R. A and thereafter as per the revised uniform tariffs framed from 'y time to time as applicable to all large industrial consumers in term& of cl.18 of the agreement. All other contentioiis viz. that the impugned demands were violative of Art.14, Art.19(l)(f) and (g) and Art.31(2) of the Constitution stand rejected. \. B In that view of the matter, the bill furnished by the Rajasthan State Electricity Board dated March 12, 1976 requir- - ing the appellants to pay an amount of Rs.21,35,506.72p, for the billing month of February 1976 at the revised uniform tariff under schedule LP/HT-1 framed by the Board's tariff c notification dated May 28, 1974 together with the general surcharge of 15% lll18t be quashed, and the Board shall instead raise a fresh demand on the appellants to pay uniform tariff under schedule HS/LP/HT-1 framed under the Board's tariff notification dated April 26, 1969 for the period from July l, 1974 to February 6, 1976 together with 15% general surcharge thereon. It is declared that the Board was entitled under s.49A of the Act to raise a demand against the appellants for payment of the revised uniform tariff under schedule LP/HT-1 of 1974 w.e.f. February 7, 1976 and thereafter as per the revised uniform tariffs, framed from time to time, as applicable to all large industrial consumers together with the general surcharge of 15% thereon in terms of cl.18 of the agreement.

The result therefore is that all the appeals, except C.A.No. 2675/80, lll18t fail and are dismissed. Civil Appeal a No. 2675/80 arising out of the judgment and order of the F Division Bench of the High Court dated September 12, 1980 dismissing S.B. Writ Petition No.8579/80 filed by the appellants challenging the validity of the aforesaid bill dated March 12, 1976 sent by the Rajasthan State Electricity Board for payment of Rs.21,35,S06.72p. for the billing month of February 1976 is partly allowed. The said Writ Petition is allowed to the extent that the bill for payment of Rs.21,35, 506.72p. for the billing month of February 1976 at the revised uniform tariff under schedule LP/HT-1 of 1974 is quashed for I~ the reasons stated above. It is, however, declared that the Rajasthan State Electricity Board is empowered in terms of s. 49A of the Electricity (Supply) Act, 1948, as introduced by the Electricity (Supply) (Rajasthan Amendment) Act, 1976 to

DELHI CLOTH MILLS v. STATE ELECT. BOARD [SEN, J.] 691

A ·J raise a fresh demand for payment under schedule HS/LP/HT-1 of 1969 for the period from July 1, 1974 to February 6, 1976. It is further declared that the Board is entitled to recover· from the appellants charges under schedule LP/HT-1 of 1974 as from February 6, 1976 and thereafter as per the revised uniform B tariffs, framed from time to time, as applicable to all large industrial consumers together 'with the general surcharge of 15% thereon in terms of cl.18 of the agreement.

The appellants having substantially failed IDlSt pay two- thirds of the costs of these appeals to the Rajasthan State Electricity Board. The State of Rajasthan will bear its own costs. c

A.P.J. Civil Appeals Nos. 2676 to 2679/80 dismissed. D Civil Appeal No. 2675 of 1980 partly allowed •