S.B. Majmudar, J.
1. The plaintiff-appellant challenges in this second appeal partial rejection of his suit by the learned Assistant Judge, Junagadh at Porbandar in Regular Civil Appeal No. 126 of 1974 filed by respondent Electricity Board before the District Court.
2. In order to appreciate the controversy between the parties, it is necessary to glance through certain relevant facts leading to this litigation between the respondent-Electricity Board and the appellant-plaintiff, who is the consumer of electricity supplied by the respondent-Electricity Board. His consumer number is 3744. The plaintiff is holding connection of 80 H.P. for industrial purposes and he runs an oil mill in the name and style of Chhabil Oil Mill at Veraval in Junagadh District. According to the plaintiff, he is taking advantage of seasonal rates as per the provisions of the tariff prescribed by the respondent-Board every year and for that purpose an application is required to be made to the defendant before the calendar year during which the benefit is to be claimed. The plaintiff's case is that he was desirous of claiming the benefit of seasonal rates during the calendar year 1972. For that purpose he made an application to the respondent-Board before the beginning of the calendar year 1972 and accordingly he had given that application by December 1971. Thereafter as per the tariff rules of the Board as applicable by the relevant time, he further intimated the respondent at his application 1-7-1972 that he would claim the benefit of seasonal rates during the months of August, September and October and that the said letter was received by the respondent on the same date, i.e. on 1-7-1972. The plaintiff claimed that the respondent had agreed to give to the plaintiff the benefit of seasonal rates during those three months in the year 1972 and accordingly the bills under seasonal rates were issued to him for those months. He claimed to have paid those bills. The plaintiff contended that in spite of that fact, the respondent gave him notice dated 16th May 1973 claiming further amount of Rs. 1738.32 as if that amount is due and not paid by the plaintiff. According to him, the said notice has been given in contravention of the provisions of rules and law and that the respondent has no right to give him such a notice or to recover any such amount as claimed in the said notice. It was further contended that by the said notice the plaintiff has been informed by the respondent that the electric connection of the plaintiff would be disconnected if the plaintiff did not pay the amount mentioned in the said notice. According to the plaintiff, the amount as claimed in the notice is not legally recoverable by the respondent and still the defendant threatened to recover the same under intimation to the effect that the connection of power supply would be discontinued and so he was required, to file the suit to get the relief against the said illegal notice. Accordingly, the appellant-plaintiff filed Civil Suit No. 136 of 1973 in the Court of the learned Joint Civil Judge, Junior Division, Veraval against the Electricity Board, respondent herein, for a declaration that the impugned notice dated 16-5-1973 was illegal, null and void and in contravention of the provisions of law and for a further declaration that the respondent was not entitled to recover the said amount as mentioned in the said notice and further claimed a permanent injunction restraining the respondent through its agent or servant from effecting disconnection of power supply in pursuance of the said notice.
3. The respondent-Board by its written statement, Exhibit 14, resisted the suit and contended that the application made by the plaintiff for availing of seasonal rates' benefit was vague and ambiguous and it was not sufficient to allow him the said benefit. It was further contended that the plaintiff was not treated as a seasonal consumer and he was not entitled to get benefit as a seasonal consumer. It was further alleged that the plaintiff's application dated 1-7-1972 was not received by the respondent Board on the very date i.e. 1-7-1972 but was received late consequently the plaintiff could not get the benefit of seasonal rate for the months of August, September and October, 1972 as alleged by him. It was further contended that the amount mentioned in the notice dated 16-5-1973 was quite proper and correct and the said dues are recoverable as per rules of the respondent-Board. It was further contended that if the application for availing the benefit of seasonal rates is not made within the period prescribed, the said benefit would not be available to the concerned consumer. It is submitted by the respondent-Board that the Board has a right to effect disconnection of power supply if the plaintiff had not paid the dues legally recoverable by the Board under the impugned notice dated 16-5-1973. It was therefore, submitted that the plaintiff's suit was liable to be dismissed.
4. The learned Trial Judge, after framing issues on the basis of the aforesaid pleadings recorded evidence on these issues and came to the conclusion that the plaintiff had made out a case for getting benefit of seasonal rates during the calendar year 1972. According to the learned Trial Judge, once that fact was established, the respondent-Board was not entitled to bill the plaintiff on the basis of monthly minimum charges. The learned Trial Judge further held that the plaintiff had duly served the request notice on the respondent-Board by 1st of July 1972 indicating succeeding three months as months for seasonal benefit. Thus he had applied for the benefit of seasonal rates for the months of August, September and October, 1972 as a seasonal consumer. In that view of the matter, the learned Trial Judge was pleased to hold that the impugned notice. Exhibit 29, served on the basis of minimum monthly charges was misconceived and dehors the scheme of the tariff rules as applicable to the calendar year in question. Consequently the learned Trial Judge decreed the suit. That prompted the dissatisfied respondent-Board to go to the District Court of Junagadh by way of Regular Civil Appeal No. 126 of 1974. The learned Assistant Judge of Junagadh at Porbandar who heard the appeal came to the conclusion that the impugned notice, Exhibit No. 29, was partly legal and partly illegal. The learned Appellate Judge held that the plaint as filed by the plaintiff-appellant clearly stated that for the months of August, September and October 1972, the plaintiff was claiming the benefit of seasonal rates. Secondly according to the learned Appellate Judge, there is no dispute between the parties so far as the billing up to August 1972 was concerned. In that view of the matter, the learned Appellate Judge took the view that the impugned notice could not be challenged by the plaintiff so far as bill for April to July 1972 was concerned in contrast to the billing of the plaintiff for the month of August 1972 and he took the view that for that month the plaintiff had already served the notice to the respondent-Board well in advance, i.e. on 1st July 1972. Thus for the month of August 1972, the plaintiff was entitled to be billed on the basis of seasonal rate, i.e. on the basis of actual energy consumed. While the impugned notice purported to recover from the plaintiff minimum monthly charge of Rs. 480/-which was not disputed, he upheld the impugned notice. Exhibit 29, to the major extent for the months of April to July 1972 but it was held to be illegal for the last month of August 1972. The learned Appellate Judge further held that even this type of billing of the plaintiff was not the final billing and it was a sort of ad hoc billing subject to the final adjustment of accounts on the basis of plaintiff's liability to pay annual minimum charges as a seasonal consumer which had to be done ultimately when the account for the whole calendar year as made. In that view of the matter, the learned Appellate Judge allowed the appeal of the respondent-Board partly and declared that the whole of the notice dated 16-5-1973. Exhibit 29, was not illegal as contended by the plaintiff. It was illegal to the extent of Rs. 480/-claimed under the said notice by way of minimum charges for the month of August 1972, and to that extent only the notice was invalid. But the notice was held to be legal regarding minimum monthly charges for the months prior to August 1972. It is the aforesaid decree of the Appellate Court by which the plaintiff's suit has been dismissed in so far as it challenged the impugned notice, Exhibit 29, for the months prior to August 1972, that has been made the subject matter of present second appeal by the dissatisfied plaintiff. The respondent-Board does not challenge the partial decreeing of the plaintiff's suit by the Appellate Court to the extent of their claim reflected in the impugned notice pertaining to the month of August 1972.
5. Mr. K.M. Chhaya, the learned advocate appearing for the appellant-plaintiff, submitted that the learned Appellate Judge has misconstrued and misinterpreted the tariff rules and consequently has come to a wrong and an erroneous conclusion in law when he held that the impugned notice. Exhibit 29, was invalid to the extent it covered months of year 1972 which preceded the month of August 1972. On the other hand Mr. M.D. Pandya, the learned advocate appearing for the respondent-Board, while supporting the decree passed by the learned Appellate Judge further contended that even for the month of August 1972, the learned Appellate Judge ought to have held that the plaintiff was not entitled to get seasonal benefit as he had not complied with the condition as imposed by the plaintiff rules of serving a calendar month's notice to the Electricity Board by the concerned consumer if he wanted to avail of the benefit of being treated as a seasonal consumer for the succeeding month. In view of the aforesaid rival contention of the parties, the following points for determination arise in this second appeal:
1. Whether the respondent-Board was entitled to serve the impugned notice, Exhibit 29, to the plaintiff on the basis of minimum monthly charges for the concerned months.
2. Whether the Appellate Court had erred in decreeing the plaintiff's suit in so far as it pertains to the requisition made by the impugned notice, Exhibit 29, for the month of August 1972.
6. So far as the first contention is concerned, it is necessary to keep in view certain admitted facts which emerge from the record of the case. It is an admitted fact that the plaintiff-appellant who is running a seasonal industry of an Oil Mill is a regular consumer of electricity as supplied by the respondent-Board in the area in which the plaintiff operates. It is further an admitted position on the record of the case that the plaintiff had applied before the beginning of the calendar year 1972 for being given benefit of a seasonal consumer of electricity and the said application was duly made by him quite in time prior to the beginning of calendar year 1972. It is further established on the record of the case that the plaintiff also served a further notice to the respondent-Board by 1st July 1972 which is in Exhibit 30 on the record of the case intimate to the Board that the plaintiff wanted to treat August, September and October 1972 as months of off-season. It may be stated at this jurisdictions it is a question which was highly disputed between the parties as to whether the second notice was served to the respondent-Board on 1st July 1972 or 10th July 1972. Ultimately both the Courts below, on appreciation of relevant evidence on this aspect, have taken the view that the second notice was served by the plaintiff on 1st July 1972. That is a pure finding of fact and in fairness to Mr. Pandya, the learned advocate for the respondent-Board, he did not challenge the said finding. But his submission on this aspect shall be dealt with by me a little later. It is now a well established fact on the record of the case that the plaintiff did serve the respondent-Board with the requisite notice by 1st July 1972 intimating to the respondent-Board that three succeeding months of August, September and October 1972 shall be treated as off-season for him.
7. It is further an admitted fact that the respondent-Board served the plaintiff with the impugned notice, Exhibit 29, somewhere in May 1973 calling upon the plaintiff to pay the total amount of the notice being Rs. 171832, the break-up of which was spread over five months beginning from April 1972 and ending by August 1972. It is also an admitted fact between the parties that the impugned notice, Exhibit 29, sought to recover from the plaintiff the minimum monthly charges for these five months as contrasted with the amounts which were actually paid by the plaintiff for the concerned months of April and May 1972 on the basis of actual energy consumed. Thus for the month of April and May 1972, the respondent-Board has to recover by way of Exhibit 29 the amount of difference between the minimum monthly charges and the charges in the context of actual energy consumed, while for the months of July and August 1972, as the plaintiff appears not to have consumed any electricity, the minimum monthly charges of Rs. 480/-per mouth are sought to be levied against the plaintiff.
8. In the background of these aforesaid admitted and proved facts, the short controversy which arises for consideration between the parties has got to be resolved. The plaintiff contends that once he is accepted as a seasonal consumer for the calendar year 1972, he cannot be billed on the basis of minimum monthly charges That such a system of billing is dehors the scheme of the tariff provided for seasonal consumers and it is available only in case of non-seasonal consumers or ordinary consumers. According to the plaintiff the only system of billing permissible in the case of seasonal consumers as per the relevant tariff rules is that the final accounting was to be made at the end of the calendar year subject to the consumer's liability to pay the annual minimum charges as provided for seasonal consumers. The plaintiff contends that the annual minimum charges as provided for seasonal consumers work up to a figure much higher than the figure which can be worked out on the basis of the minimum monthly charges as can be recovered from ordinary non-seasonal consumers. But the contention of the plaintiff is that for a seasonal consumer, bills on the basis of minimum monthly charges can never be furnished by the Board. On the other hand, the contention of the respondent-Board is that so far as non-seasonal consumers are concerned, they have to pay electricity charges on the basis of actual electricity consumption or in case they fall short of the minimum monthly charges, the concerned minimum monthly charges are to be paid by such consumers. Once this minimum monthly charges are levied from the non-seasonal consumers, the matter is at an end and no further accounting is involved in such cases. But in case of seasonal consumers, even though by way of an ad hoc system of payment, the seasonal consumers are billed on the basis of minimum monthly charges, these minimum monthly charges are not finally levied against them and they remain items in account to be made annually at the end of the concerned calendar year, that these minimum monthly charges paid by the concerned seasonal consumer will have to be finally adjusted towards the liability of the concerned seasonal consumer to pay the total ceiling amount of minimum annual charges. It was further contended that if in a given case on final settlement of yearly accounts, it was found that a seasonal consumer had actually paid by way of minimum monthly bills any amount which in all fell short of the minimum annual charges payable by him, then the question of meeting the deficit by the concerned consumer would remain for consideration. It was therefore submitted that the impugned bill, Exhibit 29, can never be said to be dehors the scheme of tariff rules as applicable to seasonal consumer as tried to be imagined by the plaintiff. My attention was invited to the electricity Tariff rules as applicable to the calendar year in question. A printed copy of the said tariff was produced before the Trial Court at Exhibit 35. In page 4 of the said Tariff Rules, it has been provided that the LTP-1 Rate as applicable for motive Power service (including water works) for purpose other than agricultural was at various rates as prescribed in column 3 of the Tariff. A mere look at this relevant Tariff shows that for installation charges the consumers have been broadly divided into two categories. For consumers other than seasonal consumers, the minimum bill for installation is provided by Clause (a) of the relevant Tariff which provides (hat payment of Rs. 6/-per month per BHP of contracted or connected load whichever is higher during the month whether energy to that extent is consumed or not is leviable from non-seasonal consumers. It is therefore clear that for a non-seasonal consumer, if he has consumed electricity energy to a smaller extent, he has to pay the minimum charges per month at the rate of Rs. 6 per month per BHP of the connected load. So far as the plaintiff is concerned, it is clear that he has got a connected load of 80 H.P. Thus if he is a non-seasonal consumer, he would be liable to pay Rs. 480 per month as the minimum monthly charge in case his actual consumption for that given month does not amount to Rs. 480 and fell short of it. It is pertinent to note that for a non-seasonal consumer payment of minimum monthly charge as per Clause (a) is a final payment and thereafter no further liability remains for a non-seasonal consumer for that concerned month and the matter is at an end. But the same is not the position for a seasonal consumer. For seasonal consumer Clause (b) of the relevant Tariff Rules provides that consumer taking LTP supply and who is to be styled as a seasonal consumer has to be a consumer such as Ice factory. Ice-candy, machines, Ginning and Pressing Factory, Oil-mill etc. and such other factories as may be approved by the Board from time to time and who works only during the part of the year. This is a described in Sub-clause (ii) of Clause (b) Sub-clause (ii) of Clause (b) provides that any consumer who is taking supply for any of the purposes mentioned in sub-para (i) of Clause (b) and who desires to be billed on annual minimum basis instead of on monthly minimum basis as provided in the Clause (a) for the minimum bill under tariff LTP-1 shall have to intimate to that effect in writing before the commencement of every calendar year (and initially within one month from the date of commencement of the supply in the case of anew connection). The consumer in addition shall also be required to intimate in writing not Jess than one month in advance of each period of off season during which the consumption, if any, shall be mainly for overhauling and maintenance, of the plant and machinery. In the present case as already stated above by me, both these conditions of first and second notice have been fulfilled as found by both the Courts below. The plaintiff did intimate to the Board by the end of 1971 that he desired to take the benefit of the provision of tariff as a seasonal consumer for the calendar year 1972 and also served a notice on 1st July 1972 to the Board for setting the benefit of seasonal rate commencing from August 1972 for three months. He wanted them to be treated as off-season. Then follows sub Clause (iii) of Clause (b) which says that every consumer falling under Sub-clause (i) of Clause (b) and satisfying the condition for seasonal consumer under Sub-clause (ii) of Clause (b) shall have to pay annual minimum charges of Rs. 75/-per BHP or part thereof of the contracted or connected load whichever is high during the year whether energy to that extent has been consumed or not. As stated above, the plaintiff has a connected load of 80 H.P. Consequently the minimum annual charges which he will have to pay as a seasonal consumer will be Rs. 6,000 in all per year. This is the minimum rock bottom annual charge which the plaintiff as a seasonal consumer will have to pay for the calendar year 1972 during which he was accepted as a seasonal consumer. Then follows Sub-clause (ii) of Clause (b) and the said sub-clause provides that the twelve months' period for the purpose of determining annual minimum bill shall be the calendar year in all cases, i.e. 1st January to 31st December. The consumer will be charged every month during the seasonal period at the rate LTP-1 on the basis of actual units consumed during each month (except for the monthly minimum bills). The accounts will be finally adjusted on the basis of annual minimum bill in accordance with sub-para (vi) below which will be payable along with the bill for the last month of the year i.e. December. Sub-clause (v) provides for charging at the rate of 25 paise per unit consumed by seasonal consumer during off-season. And then follows Sub-clause (vi) which states that the amount paid for the consumption during the seasonal period towards the electricity bill, excluding meter rent and electricity duty shall be taken into account while determining the amount towards the annual minimum bill. The electricity bills paid during the off season period shall not be taken into account towards the amount payable against the annual minimum bill. A conjoint reading of various sub-clauses of Clause (b) of the Tariff rate LTP-1 leaves no room for doubt that for a seasonal consumer the minimum charges payable by him are to be worked out on the basis of annual minimum charges of Rs. 75/-per BHP of connected load. But even for such a consumer before final accounts are made as per Sub-clause (vi) of Clause (b) ad hoc payments per month are contemplated by Sub-clause (iv) of Clause (b). The mode of payment of these monthly amounts is also prescribed. If a seasonal consumer consumes energy during the seasonal period which is in excess of minimum monthly bill, he has to pay for the actual consumption of energy in the month. If in a given case, his consumption of energy during the seasonal period is less than the minimum monthly bills provided by the Tariff, he has to pay on the basis of minimum monthly charge. It must be made clear that these minimum monthly bills issued to a seasonal consumer are on ad hoc basis, They have always to be finally adjusted as per Sub-clause (vi) of Clause (b) which has an overriding effect. Thus Sub-clause (iv) and Sub-clause (vi) of Clause (b) act and react on each other. Ultimately the final accounting at the end of the calendar year has to be made and it is the final accounting which really matters. All the ad hoc monthly amounts paid by the seasonal consumer as per Sub-clause (iv) of Clause (b) will be subjected to final accounts and will be items in these accounts. If a seasonal consumer has actually consumed electricity energy to an extent which takes him above the minimum annual charges payable by him as per Sub-clause (iii) of Clause (b) then of course he is to pay the charges for the actual consumption. But if he has not consumed that much energy during the calendar year, then his minimum liability will be to pay at the rate of Rs. 75 per BHP. In order to arrive at this figure and to decide the liability of the seasonal consumer on that basis, whatever monthly amounts are paid in the mean time by the consumer as per Clause (b) Sub-clause (iv) will all be subject matters of accounts and will be items in accounts. This will really eliminate the possibility of any duplication of payment on the part of the seasonal consumer and any alleged fear on the part of such consumers that they will have to pay twice over. In the present case the appellant-plaintiff who is a seasonal consumer for the calendar year 1972 has to pay Rs. 6,000 by way of annual minimum charges as per Clause (b) Sub-clause (iii). If it is ultimately found as a fact that during that year, he actually consumed energy to the extent of more than Rs. 6,000 per year and if he paid accordingly, the matter is at an end. If on the other hand, on making final accounts for the calendar year 1972, it is found that during the whole period of calendar year, the plaintiff could not consume electric energy to the extent of Rs. 6,000 and if by way of monthly minimum payments he was made to pay any amounts, the said amounts will be taken care of and duly allowed for and will be adjusted towards the seasonal consumers year by liability and the balance will be asked for from him at the time of making the final bill about the annual minimum charges. Say, for example, if the plaintiff is actually found to have paid Rs. 5,000 for the whole year by way of minimum monthly charges, he will have to pay a balance of Rs. 1,000 and nothing more. Thus it can never be said that merely because the plaintiff by way of ad hoc monthly payments was made to pay minimum monthly charges as per Clause (b) of Sub-clause (iv), he will be required to pay independently thereof a further annual minimum charge of Rs. 6,000/-as provided in Clause (b) Sub-clause (vi). Thus the apprehension voiced by Mr. Chhaya for the appellant pales into insignificance, once the whole scheme of the minimum charges to be recovered from seasonal consumers is kept in view. It is not as if that the method of charging the seasonal consumers on the basis of minimum monthly charges is extraneous to the scheme of Tariff for seasonal consumers as tried to be suggested by Mr. Chhaya. On the contrary, Clause (b) Sub-clause (iv) while read in the light of Clause (b) Sub-clause (iii) and Clause (b) Sub-clause (vi), makes it clear that even for a seasonal consumer the system of ad hoc payment insisted upon by the Board on the basis of minimum monthly charges is quite justified and proper. The only difference is that once the Board issues minimum monthly charges bill against a non-seasonal consumer, the matter is at an end and the non-seasonal consumer is bound to pay the minimum monthly charge for the concerned month and there is no question of further accounting. While on the other hand, if the minimum monthly bill is insisted upon against a seasonal consumer and even if the seasonal consumer pays that amount, he pays it as an ad hoc amount and that will be ultimately adjusted while the annual electricity charges are to be worked out at the end of the concerned calendar year. Mr. Pandya for the respondent-Board fairly stated that the Board is not interested in asking the seasonal consumers to pay twice over and whatever minimum monthly charges are sought to be recovered from them will all be adjusted ultimately when final yearly accounts are made. It will be a matter of account and these monthly payments will be items in final accounts when the plaintiff's annual minimum charges liability will be ascertained which unfortunately could not be ascertained because of this litigation. Mr. Pandya drew my attention to the finding of the learned Appellate Judge at para 11 of his judgment where it has been observed by him that the annual adjustment is not yet done nor the consumer is called upon to pay extra deposit to cover up the likely short fall in the amount of annual minimum charges as per the said rule when benefit of seasonal rate is claimed. That may be subject to the final adjustment as per the rules and conditions contained in Clause (b) Sub-clause (vi) of the said Tariff Rules which are applicable admittedly. Mr. Pandya, therefore, submitted that the apprehension voiced by Mr. Chhaya for the appellant-plaintiff that the total amount of impugned bill, Exhibit 29, subject of course to the minimum charge of Rs. 480 for August 1972 will amount to a double payment on the part of the plaintiff was totally misconceived. Mr. Pandya stated that whatever the plaintiff pays under Exhibit 29 will be an ad hoc payment which will be subjected to the final accounts between the parties when the plaintiff's liability, as a seasonal consumer, will be ascertained for the entire calendar year 1972 during which was treated as a seasonal consumer. Thus the notice, Exhibit 29 was not reflecting any crystallised liability of the plaintiff to pay as final minimum charges. It was merely a mode of ad hoc payment insisted upon by the Board against all consumers so that the machinery of the Board can be kept working and operating throughout the year and to ensure that there may not be any stalemate in the administration of the Board. On a true construction of the tariff, as discussed by me above, it appears that the plaintiff's apprehension is unjustified. Once it is held that the impugned notice, Exhibit 29, reflects a demand on an ad hoc basis, which will ultimately be adjusted in the final account for ascertaining the plaintiff's annual liability for the whole of the calendar year 1972 and which ultimately will crystallise the liability of the plaintiff to pay either the annual minimum charges of Rs. 6,000 or if it has consumed more energy for that year, to a higher figure worked out on the basis of actual yearly consumption of electric energy by the plaintiff, the very grievance of the plaintiff in the present proceedings evaporates. It must be made clear at this stage that the notice. Exhibit 29, seems to wrongly proceed on an assumption that the plaintiff is not a seasonal consumer. Now it has been held and well established on the record of the case that the plaintiff was treated as a seasonal consumer for the relevant calendar year 1972. Once the plaintiff is held to be seasonal consumer for the calendar year 1972, it is obvious that whatever amount he will be required to pay as per notice Exhibit 29 will be finally adjusted while ascertaining his final liability as a seasonal consumer to pay the minimum annual charges as per Clause (b) Sub-clause (iii) of the Tariff Rate LTP-1. Mr. Chhaya further submitted that there may still remain an apprehension on the part of the plaintiff that once he is made to pay the amount of the notice, Exhibit 29, even though it may be an ad hoc payment and ultimately if it is found after yearly accounts that in fact the plaintiff had paid for the calendar year 1972, by way of actual consumption of electric energy, an amount of more than Rs. 6,000/-(which is the minimum annual charge) than the amount demanded by notice Exhibit 29 and received from the plaintiff as per the said notice may amount to double payment in that eventuality. Really speaking that eventuality is more imaginary than real since final account for calendar year 1972, is still not done. However, in case after final accounts, it is found that the plaintiff has paid more than Rs. 6,000 by way of actual energy consumed during the calendar year 1972, and the amount covered by notice Exhibit 29 is an additional amount which is recovered from the plaintiff, over and above the actual amount paid by the plaintiff by way of consumption charges for the units consumed during the calendar year 1972, then in that case the question of refund of the amount recovered under bill Exhibit 29 may arise. Mr. Pandya for the appellant-Board says that if such a situation emerges on the final accounts being made for calendar year 1972, the Board can never sit tight over the additional amount recovered from the plaintiff by notice Exhibit 29 and in that eventuality the said amount would certainly become refundable to the plaintiff or would be adjusted towards his liability under future bills. This statement of Mr. Pandya must remove all the apprehensions which may be lingering in the mind of the plaintiff.
9. In view of the aforesaid discussion, it is clear that the main plank of the plaintiffs case that the notice Exhibit 29 could not have demanded from him monthly minimum charges for the months during which the plaintiff's Oil Mill had worked in the calendar year in question becomes unsustainable. It must be held that even for a seasonal consumer, the Board has authority to issue monthly bills on the basis of minimum monthly charges subject of course to the condition that these monthly bills shall be treated as being served on ad hoc basis and will be subjected to the final adjustment of accounts which will have to be made in the case of the seasonal consumers at the end of the calendar year in question. It goes without saying that the benefit of paying monthly charges on an ad hoc basis which will be treated as items of account to be adjusted ultimately for ascertaining the annual minimum charges for the relevant calendar year to be levied from a seasonal consumer will be available to only that consumer who has complied with all the requirements of the Tariff for being styled as a seasonal consumer and for being given that benefit for any given calendar year. The first point for determination will therefore have to be answered in the affirmative, that is in favour of the respondent-Board and against the plaintiff.
10. That takes me to the second point for determination which arises from the submission of Mr. Pandya for the respondent-Board. He contended that as per the scheme of the Tariff for a seasonal consumers it was necessary for the consumer concerned to intimate to the Board at least one month in advance before he could call upon the Board to treat the succeeding months to be an off-season. In the present case, it has been found as a fact that for the months of August, September and October 1972, the plaintiff had served the requisite second notice to the Board on 1st July 1972. Mr. Pandya accepts that finding of fact for the purpose of the present second appeal. But he contends that the service of this notice does not comply with the requirement of the Tariff to the effect that at least one calendar month's advance notice must be given to the Board before the succeeding months can be treated as an off-season for the purpose of requisite Tariff. Mr. Pandya submitted that the learned Appellate Judge had wrongly held that service of 30 days advance notice was enough. He stated that it should be a calendar month's notice. Now this contention of Mr. Pandya is not open to him for the simple reason that the learned Appellate Judge has confirmed partially the decree passed by the learned Trial Judge by holding that the notice given by the plaintiff as a seasonal consumer to the Board duly complied with the requirements of the relevant tariff and even though the notice was served on 1st of July 1972, it became fully operative for the next month beginning from August 1972 and on that basis the learned Appellate Judge granted relief to the plaintiff for the month of August 1972 and struck down the impugned notice. Exhibit 29, to that extent. Thus the finding of the learned Appellate Judge is a pure finding of fact and the conclusion arrived at by him against the Board to that effect has crystallised in to a partial decree in favour of the plaintiff for the month of August 1972 and to that extent, the decree passed by the Appellate Court is against the Board. This partial decree has not been subjected to any cross appeal or cross objections. Consequently the finding of the Appellate Judge which has resulted into a partial decree against the Board cannot be challenged in the present second appeal in the absence of any cross appeal or cross objections and that part of the decree has been final on the record of the case. Hence it is not permissible for Mr. Pandya for the Board to seek to reopen the aforesaid partial decree which has become final against the Board. Consequently 1 have not permitted Mr. Pandya to address me in details on the second point for consideration. 1 hold that the second point does not survive for decision at this stage.
11. Consequently it has not been gone into by me. It is therefore held that the second point for determination does not survive for consideration. The result of the aforesaid discussion is that the present second appeal will be liable to fail and is accordingly dismissed subject to the clarification made in the earlier part of this judgment to the effect that the plaintiff is a seasonal consumer and the amount demanded by the suit notice, Exhibit 29, will be treated as an ad hoc demand subject to the final adjustment of the yearly account for the calendar year 1972. There will be no order as to costs of this appeal in view of the facts and circumstances of the case.