M.M. Kasliwal, J.
1. As identical questions of facts and law are involved in these bunch of 47 writ petitions whose list is annexed in Schedule 'A', the same are disposed of by one single order.
2. In order to appreciate the facts and the controversies raised in these cases I would refer the pleadings and the Annexures as contained in S. B. Civil Writ Petition No. 1862 of 1982. The case of the petitioners is that to provide for the rationalisation of the production and supply of electricity and for taking measures conducive to electrical development, the Parliament enacted the Electricity Supply Act, 1948 (hereinafter referred to as 'the Supply Act'). In exercise of powers under Section 5 of the Supply Act, the Government of Raiasthan constituted a State Electricity Board (hereinafter referred to as 'the Board'). In exercise of the powers conferred under Section 49 of the Supply Act the Board has been framing Tariffs for the, supply of electricity to its consumers from time to time. For the first time a general Tariff was introduced by the Board by notification, dated March 18, 1964, which contained a fuel adjustment clause. This Tariff was modified on July 6, 1966 and April 6, 1969, but no change was made in the fuel adjustment clause. The Tariff was again modified on May 28, 1974. and this time the fuel adjustment clause was also modified. Annexure 1 has been filed as an extract of the fuel adjustment clause as contained in the notification, dated May 28, 1974. Subsequently by a notification, dated November 4, 1976, the Board framed a new Tariff, namely. Tariff for supply of Electricity, 1976. This Tariff also contained similar fuel adjustment clause except that heavy water surcharge was additionally included. Under the said clause the rate per unit under the High Tension Tariff Schedule LP/HT-1 was subject to variation according to the annual rate of fuel surcharge, which was to be worked out as per the formula prescribed therein. An extract of the fuel adjustment clause in the notification dated November 4, 1976, has been annexed and marked Annexure 2. Subsequently by a notification, dated December 30, 1978, the Tariff was again amended but we are not concerned as no changes were made in the fuel adjustment clause. Again the Tariff for supply of electricity, 1976 was superseded by a notification, dated July 7, 1981, whereby a new Tariff i. e. Tariff for supply of Electricity, 1981 was framed. The said Tariff also contains a fuel adjustment clause for the large Industrial Load Consumers, and the only modification in respect of fuel adjustment clause was with regard to power supplied to the Board by the Badarpur Thermal Power Station. An extract of fuel adjustment clause contained in the Tariff of 1981 has been annexed and marked as Annexure 3.
3. The case of the petitioners is that the Board had been consistently revising the charges for consumption of electricity from time to time in conformity with the increase in the cost of production resulting from rise in the cost of labour charges establishment expenses etc. By notification, dated March 6, 1982, the Board further amended the Tariff for supply of Electricity, 1981, but we are not concerned with the same. The case of the petitioners is that the Board issued bills for the billing months May, 1974 to April, 1977. levying fuel surcharge on the prevailing rates. The fuel surcharge for these years could have been revised and adjustments made if there was difference between the provisional rate of surcharge and the final rate of surcharge, as worked out according to the prescribed formula, but the said power could have been exercised at the end of each year only and not thereafter. Since there was no difference between the annual rate of surcharge determined provisionally and the final annual rate of surcharge as calculated after the completion of the relevant year, the Board did not issue any revised bills under the fuel adjustment clause for the years 1974-77. All the bills issued by the Board for the period May, 1974 to April, 1977 and thereafter including charges for fuel surcharge were regularly paid. The rates of fuel surcharge as contained in the bills are mentioned as under:
Feb. 1971 to March 1972 0.44 P/KWH
April, 1972 to March. 1973 0.56 P/KWH
April. 1973 to March. 1974 0.5 P/KWH
April, 1974 to March. 1975 0.4 P/KWH
Till June. 1981 0.40 P/KWH
From June, 1981 0.63 P/KWH
From August, 1981 1.00 P/KWH
From January 1982 2.5 P/KWH.
4. It is alleged by the petitioner that the bill received for the billing month of June, 1981 showed that the rate of fuel surcharge was raised from 0.40 to 0.63 P/KWH containing a note 'as per revised provisional rate'. Similar note was contained in the billing month of August, 1981. According to the petitioner-company it had made the payment @ 0.40 P/KWH provisionally but the same was later on revised as mentioned above and the revised rates were nothing else than the final rates and thereafter no further revision of these rates is permissible, under the Tariff or under the provisions of the Supply Act.
5. It has been further alleged that acting on representation contained in the bills issued during the period May, 1974 to April, 1977 that fuel surcharge levied therein was final and net subject to any further adjustments, the petitioner-company had framed their price policy and finances. Even the income-tax returns were submitted on that basis and the same have now attained finality. The case o the petitioners is that by a bill, dated November 12, 1982, for the billing month November, 1982 a sum of Rs. 26,65.043/48 has been claimed by the Board on account of revision of fuel surcharge for the billing months May, 1974 to April, 1977 consequent upon final determination of rates in the manner specified in that bill. The details of this amount have been mentioned on the back of the bill. Annexure 4. The payment of the aforesaid amount was required to be made through cheque up to November 27, 1982 and in cash by November 29, 1982 and in case of nonpayment of the bill within seven days of the stipulated time, the electricity connection was liable to be disconnected under S, 24 (1) of the Indian Electricity Act, 1910. Similar kind of bills have been issued to all the petitioners claiming arrears of fuel surcharge which are subject matter of challenge in these writ petitions.
6. The case of the petitioners further is that the bill, dated November 12, 1982, neither disclosed the material nor the basis for the revision of the rates of fuel surcharge or the period mentioned therein and the statement contained in the bill was absolutely vague and laconic. The petitioners in this regard by their letters called upon the Board to give date and calculation sheet of the alleged adjustment of fuel surcharge as the same was being claimed on the basis of a contract for supply of electricity, but the Board did not furnish any information. According to the petitioners they having left with no other alternative remedy invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution. The illegal demand on account of the alleged retrospective revision of fuel surcharge has been challenged in these writ petitions.
7. Before dealing with the grounds and contentions raised by the learned counsel for the petitioners, it would be proper to mention the case as set up by the respondents. Apart from joining the issues on merit, the respondent-Board has also raised certain preliminary objection for the maintainability of these writ petitions. It has been alleged that the present writ petitions should be dismissed on the short ground that the questions raised, arose out of the agreement entered into between the parties. The said agreement contained an arbitration clause and under Clause 30 of the agreement it was provided that in the event of any dispute or difference arising at any time between the supplier and the consumers in regard to any matter arising out of or in connection with the agreement, such dispute or difference shall be referred to the arbitrators. The questions as such raised by the petitioners were covered by the arbitration clause contained in Clause 30 of the agreement. If the petitioners had any grievance they could have recourse to the remedy provided under the aforesaid Clause 30 of the agreement and had no right to invoke the extraordinary jurisdiction of this Court.
8. It has been further alleged that without prejudice to the objection raised above it is further submitted that according to Clause 20 of the agreement, in the event of any dispute or difference as to the correctness of any bill or bills presented under the terms of the agreement, the consumer was bound to pay such bill or bills within the period of seven days and adjustment of any offered payment will be given to him in the next bills after the settlement of the dispute or difference. The petitioners had in terms of the agreement to pay the bill as presented to them and raise the dispute thereafter. As the petitioners in the present case had failed to pay the bills, they are not entitled to approach this Hon'ble Court without making the payment.
9. It has been further alleged that neither any fundamental right nor Constitutional or other rights of the petitioners were infringed and as such they had not made out any case for the exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution, it has been further altered that the petitioners' liability to pay the fuel surcharge arose from the terms and conditions of the agreement entered into between the parties and there was a provision which enabled the Board to make any alteration in the Tariff Schedule. The petitioners were aware of the fuel adjustment clause contained in the Tariffs and had agreed to pay the surcharge as and when the final rates weir worked out according to the formula contained in the said clause. Now that the Board has worked out the formula and has finally determined the final rates of fuel surcharge and has sent the bills to pay the same, the petitioners in an attempt to wriggle out of their contractual obligations under the agreement have filed these writ petitions. The provisions and scales including the fuel adjustment clause shown in the Tariff became the terms of the contract and it was on those terms that the electrical energy was supplied to the petitioners. It is thus, submitted that a writ petition was not an appropriate remedy for impeaching the contractual obligations, more so, when the petitioners have taken full advantage of the contract by receiving and consuming electrical energy from the answering respondent.
10. It has been further alleged that the Tariffs are framed by the Board in exercise of its powers under Section 49 of the Supply Act. The fixation of rates is a matter of policy. This power is absolutely executive in nature. The Board is entitled to fix rates of the goods (here electricity) sold by it to the various parties and it is competent to fix rates of the same by demanding the arrears of fuel surcharge after determination of the final rates, the Board is only asking for the balance of the amounts for which the goods were sold to the consumers. Under the agreement the petitioners had agreed to pay the balance amount of fuel surcharge as and when the same was calculated by the Board. No violation or breach of any law, rule or regulation is involved in the process of fixation of final rates of fuel surcharge, a or any such violation or breach has been shown by the petitioners in the writ petitions. It was a simple case of enforcing the right to realise dues under the contract between the parties as balance of the price of the goods i.e. electrical energy supplied by the Board to the petitioners. The recourse to the jurisdiction of this Hon'ble High Court under Article 220 in such matters was not an appropriate remedy.
11. It has been further alleged that the main ground of attack taken by the petitioners was that the Board was required to fix the final rate of fuel surcharge at the end of each year and as it failed to do so for a number of years the provisional rates charged from the petitioners automatically became the final rates and the Board could not thereafter determine the final rates of fuel surcharge. In this regard it is submitted that the above contention is based on misinterpretation and/or misunderstanding of the provisions of fuel adjustment clause. To fix final rates of fuel surcharge at the end of each year was an enabling provision for the Board to determine the rates after the year had ended. The rates have to be fixed qua each year. This clause, however, was not a clause of limitation and did not lay down the outer limits within which the Board was required to fix the final rates of fuel surcharge. The rates were required to be fixed in accordance with the formula contained in the fuel adjustment clause and one of the components to work out the final rate of fuel surcharge was as under :
'C-1: Fuel surcharge in paise per unit levied by the Rajasthan Atomic power Project on the bulk purchase by the Board.
C-1: The fuel and heavy water surcharge in paise per unit due to the variation in the rate of fuel and heavy water consumed at the Rajasthan Atomic Power Station'.
The figures of C-1 were not available to the Board, till 1981 and as such it was beyond its control to work out the formula and fix the rate according to the fuel adjustment clause. As soon as the Board was in a position to work out the formula it framed the final rates and billed the consumers promptly. There was thus no negligence or inaction on the part of the Board in fixing the final rates according to the fuel adjustment clause.
12. I see no ground or valid justification for throwing out the writ petitions on the basis of preliminary objections raised by the respondents. The questions raised by the petitioners cannot be said as purely arising out of contractual obligations. The questions arising in these cases relate to the charging of fuel surcharge under the fuel adjustment clause contained under different notifications. The petitioners have challenged the very rights of the respondent-Board to revise the rate of fuel surcharge and to levy the same retrospectively. The fuel adjustment clause contained in the relevant Tariff notifications provide that the decision of the Board shall be final and binding on the consumers. In this view of the matter the disputes raised in the writ petitions cannot come within the purview of Arbitration Clause. The Board is admittedly a monopolistic undertaking for supply of electricity in the State of Rajasthan and in clauses contained in the agreements for which the consumers have no option, their right to approach this Hon'ble Court in the exercise of extraordinary jurisdiction under Article 226 of the Constitution cannot be denied in case such agreements are hit by certain provisions of the Constitution or violative of the principles of natural justice or against statutory provisions of law. By the impugned action the Board has threatened the disconnection of electric supply itself and as such I find no force in the objection raised by the respondent-Board that the petitioners should have resorted to the Arbitration Clause and cannot file these writ petitions challenging the impugned action of the Board.
13. As regards Clause 20 of the agreement, suffice to say that it relates to settling of disputes and differences relating to the incorrectness of the bills issue. The 'bill' in the context used under this clause can only mean monthly bills issued under Clause 18 of the agreement. As the bills have already been paid by the petitioners there is no dispute or difference relating to the incorrectness of such bills. The controversy in the present writ petitions is regarding the arrears of fuel surcharge demanded under the fuel adjustment clause and this dispute is not in any manner covered by Clause 20 of the agreement entered into between the parties. I thus, find no force in this preliminary objection as well raised by the respondent-Board. I shall now decide the controversies raised by the petitioners on merits in these cases.
14. In order to properly appreciate the arguments raised by learned counsel for the petitioners, it would be proper to mention some more facts and relevant provisions of fuel adjustment clause. The first fuel adjustment clause contained in the notification dated May 28, 1974, laid down as under:--
'Fuel Adjustment-clause :-- The rateper unit sold under the High TensionTariff Schedules LP/HT-1 and DL/RT-2,shall be varied according to the annualrate of fuel surcharge. which shall beworked out as per the following formula:--
A1 x A2 + B1 x B2 + C1 x C2
(A2 + B2 + C2 + B) x 0.85Where -
A1 -- Rate of fuel surcharge per unit worked out at thermal power houses in Rajasthan.
A2 -- Units generated by thermal power houses in Rajasthan.
B1 -- Rate of fuel surcharge per unit worked out for Satpura thermal station.
B2 -- Units generated against Board's share from Satpura thermal station.
C1 -- Fuel surcharge in paise per unit levied by the Rajasthan Atomic power Project on the bulk purchase by the Board.
C2 -- Units purchased by the Board from Rajasthan Atomic Power Project.
D -- Units received in Rajasthan from the hydel sources.'
Other provisions contained in this notification which are relevant for our consideration is given as under--
'At the end of each year, the Board shall work out the rate of fuel surcharge as per the above formula and the rate per unit of fuel surcharge so worked out shall be made applicable for the units sold at HT Tariff during the respective year. In this the decision of the Board will be final and binding on the consumer.
The provisional rate shall be charged for the current period according to the rate for the previous period and final adjustment shall be made when the final rate of fuel surcharge is worked out.'
15. Another notification is dated November 4, 1976 which also contained a similar formula for working out the annual rate of fuel surcharge as contained in the notification, dated May 28, 1974 the only difference relevant for our purposes was made in component Cl which reads as under :
'C1 -- The fuel and heavy water surcharge in paise per unit due to variation in the rate of fuel and heavy water consumed at the Rajasthan Atomic Power Station.'
16. The third notification is datedJuly 7, 1981 in which the component C1reads as under :--
'C1.-- Heavy water & fuel surcharge in paise per unit as may be levied by the RAPS authorities due to variation in the rate of heavy water and fuel consumed at the RAPS.'
The Board as per its order, dated October 27, 1975. notified the final rate of fuel surcharge for the year 1973-74 in terms of the fuel adjustment clause contained in the Tariffs for supply of electricity -- 1964 as under :--
1. From billing month of 0.62 paise/
May, 1973 to Oct. 1973 unit
2. From billing month of 0.40 paise/
Nov, 73 to April, 74 unit
It was specifically mentioned in the above order that from the billing month of May, 1974 onwards the rate of fuel surcharge would be chargeable at 0.40 paise per unit on provisional basis till the final figures are arrived at. The Tariff of 1964 remained applicable up to billing month of June, 1974. The new Tariffs 1974 came into force from the billing month of July, 1974 and continued up to the billing month of November, 1976. Then again the Board revised its Tariff and framed the Tariff for supply of electricity 1976, which came into force from the billing month of December, 1976. These Tariffs were amended as per notification, dated December 30, 1978 and remained in force till the billing month of July, 1981. The Tariffs were again revised from the billing month of August, 1981 when 'Tariffs for supply of electricity -- 1981' were brought into force by the notification, dated July 7, 1981 which was later on amended on March 6, 1982 and were made applicable from the billing month of April, 1982. All these Tariffs contained a, fuel adjustment clause to enable the Board to finalise the rate of fuel surcharge according to the formulas contained in the Tariffs.
17. The case of the respondent-Boardis that it could finalise the final rate offuel surcharge leviable on the large industrial consumers according to the fueladjustment clause when it was possessedof the figures relating to the componentCl of the formula. After having the abovefigures the Board issued the followingnotifications containing the final rate offuel surcharge:--
1. No. RSEB/Comml/FAC/74-75/D.18l9 dated May 27, 1981..
2. NO. RSEB/DCO/FAC/75-76/D.2218 dated August 7, 1982.
3. No. RSEB/DCO/77-78/D.3265 datedOctober 30,-1982.
The true copies of the above notifications have been annexed with the reply and marked as Annexures R/2 to R/4, According to the Board the rate at which fuel surcharge was to be levied by the Rajasthan Atomic Power Project (RAPP) was not available to the Board, the RAPP made certain proposals to the Central Electricity authority in October, 1974 for the Tariffs to be applied for Atomic power to be supplied to the Board. The said proposals were not in the interest of the consumers served by the Board as it would have brought heavy burden of levy on them and as such the Board made objections and represented to the Central Electricity authority to revise the same. While the matter was under negotiations and considerations of the Central Electricity authority, the RAPP rather wanted to increase the rate of supply of Atomic power in July, 1975 and later in October, 1976. The RAPP desired to enhance the rate retrospectively from December, 1974. In January 1977. a notification itself was issued by the department of Atomic energy but the same was objected to by the Board. While the matter was under negotiations and discussions the Board in the meanwhile framed Tariff of 1976 and the component C1 of the formula was changed as already mentioned above. This formula as contained in Teriff of 1976 also could not be worked out as the Board could not get the rates of fuel and heavy water consumed by the RAPP in generating Atomic power. The RAPP, ultimately after long negotiations, deliberations and discussions resolved the issue in the meeting held in May, 1980 and August, 1980. Working on this decision the Board issued a notification on May 17, 1981 but as the decision was not formally notified by the Government of India, the Board thought it advisable to wait for the formula notification and issued further notifications after the notification of Government of India, dated June 1, 1982. Immediately, thereafter the Board proceeded with the determination of the final rates of fuel surcharge according to the fuel adjustment clauses contained in the various Tariffs and after the same were approved in its meetings issued the necessary notifications mentioned above. The delay in determining the final rates of fuel surcharge was thus made on account of the fact that the formula for determining the final rates of fuel surcharge could not be worked out until the figures of one of the important component C-1 were made available to the Board. The Board in its reply in para 15 have further given details of the delay in calculating final rates of fuel surcharge.
18. Mr. P. R. Mridul, who made the principal arguments on behalf of the petitioners has raised his contentions under the following heads--
1. The levy of fuel surcharge is contrary and ultra vires to the fuel adjuament clause itself.
2. The levy of fuel surcharge is violative of Article 14 of the Constitution of India.
3. The action of the Board is violative of the principles of natural justice.
4. The Board is estopped from the principle of promissory estoppel to levy fuel surcharge retrospectively.
19. As regards the first point it was contended that according to the fuel adjustment clause itself it was provided that 'at the end of each year, the Board shall work out the rate of fuel surcharge as per the above formula and the rate per unit of fuel surcharge so worked out shall be made applicable for the units sold at H. T. Tariff during the respective years. It is thus submitted that the maximum period was one year and in any case it could have been reasonably extended maximum before the expiry of next year. This limitation contained in the fuel adjustment clause itself put a restraint on the exercise of power up to the end of each year or maximum up to a reasonable period which in no manner should exceed beyond the year following in which the rate of fuel surcharge had to be worked out. It was submitted that if a particular manner or mode is prescribed for doing an ad, then it must be performed in the same manner and not otherwise. Reliance in this regard is placed on Nazir Ahmed v. King Emperor. AIR 1936 PC 253 (2) and Assistant Collector of Central Excise v. National Tobacco Co. of India Ltd.. AIR 1972 SC 2563. It was further argued that the plea taken by the Board in this regard that it was an enabling provision did not give any right to the Board to work out the rate of fuel surcharge after 7 or 8 years and it would be a grossly unreasonable and abuse of power of the Board. The above power given to the Board should be construed in the light of public obligation and duty conferred on the Board and should not be allowed to be extended to an unreasonable period of time. It was Also submitted in this regard that according to the Board's own showing their memorandum was turned down on January 30, 1979 and thereafter there was no satisfactory explanation for waiting up to October, 1982 when the impugned bill was issued. It is further submitted that in any case the respondent in its reply have furnished no explanation for the period after August, 1980. No correspondence or documents have been filed by the respondent for explaining the delay and as such an adverse inference should be drawn against the Board.
20. Learned Solicitor General in reply contended that time was not essence of the contract. The rate of fuel surcharge could not be worked out by the Board at the end of each year, for reasons beyond their control. If there was valid and sufficient cause for one year, it would continue unless barred by limitation. The Board was demanding the fuel surcharge for the supply of electricity already given to the petitioners and on the basis of right given under the fuel adjustment clause, the Board was entitled to receive the price of electricity whenever the final rate of fuel surcharge was worked out. There was no violation of any provisions of fuel adjustment clause nor any legal or fundamental right of the petitioners were infringed as they were asked to pay the price of sale of goods (electricity) sold to them. It was submitted that till the components C1 were made known by the Rajasthan Atomic Power Project, the formula for working out the annual rate of fuel surcharge could not be calculated. It was also submitted by learned Solicitor General that till the agreement was executed between the parties it may be taken to have been done under the statutory provisions, but any differences of the manner or mode of working out such contract fell within the purview of ordinary law of contract and none of such questions can be considered as violative of any provisions of the Constitution of India. The Rajasthan State Electricity Board is an undertaking under the public Sector and its efficiency and worlding cannot be equated with a private Sector undertaking. The Rajasthan Atomic Power Project was under the control of Union of India and the Board had no control over it. The petitioners were paying fuel surcharge on a provisional basis according to the rate for the previous year and the final adjustment was agreed to be made when the final rate of fuel surcharge was worked out.
21. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. The provisional rates of fuel surcharge charged from the petitioners were not based on the generation cost of the electric energy but were being charged merely on a provisional basis according to the rates for the previous period. It would be clear from the fact that the final rates of fuel surcharge for the period from October 1, 1973 to March 31, 1974 came to be 0.40 paise per unit and this was being charged in the subsequent bills, as the provisional of fuel surcharge. Whenever fuel surcharge was mentioned on provisional basis it was made clear in the relevant Tariffs that it would be subject to adjustment when final figures would be arrived at In all the Tariffs there is a fuel adjustment clause according to which the Board is required to work out the rate of fuel surcharge at the end of each year but it is also laid down that a provisional rate shall be charged for the current period according to the rate of previous year and final adjustment shall be made when the final rate of fuel surcharge is worked out on the basis of the formula mentioned for working out the annual rate of surcharge. A perusal of the rates of fuel surcharge mentioned in the bills of the relevant period go to show beyond any manner of doubt that it was charged at the rate of 0.40 paise per unit from the billing months of April, 1974 to March 31, 1980. This rate of 0.40 paise per unit was charged as this was the final rate of fuel surcharge for the month ending March 31, 1974. There is no force in the contention of the learned counsel for the petitioners that this rate should be treated as final and not on provisional basis. Though the rate of fuel surcharge on provisional basis was 0.65 paise for the period October 1, 1973 to March 31, 1974 but it was worked out at 0.40 paise on final basis. The chart Annexure R/5 mentioning the rate of fuel surcharge on provisional and final basis goes to show that different rates were worked out on final basis for the period April 1, 1974 to March 31, 1980, This also goes to show that though the rate of final fuel surcharge was worked out at paise 2.35 for the period April 1, 1977 to March 31, 1978 but it was reduced to 1.92 for the period April 1, 1978 to March 31- 1979. So far as the provision to work out the rate of fuel surcharge at the end of each year is concerned it cannot by any stretch of imagination be said to be mandatory. It is an enabling provision which (fives power to the Board to work out the rate at the end of each year. There is no provision laying down the maximum period for working out the rate of fuel surcharge. There is a clear provision for working out the rate of fuel surcharge on provisional basis according to the rate for the previous period and final adjustment has been made permissible when the final rate of fuel surcharge is worked out. The Board in its reply has clearly brought out justification for delay in working out final rate. This justification for delay has to be decided on the anvil of reasonable basis. Even if for some period it may be assumed that there was no explanation, it cannot disentitle the Board to demand the final rate of fuel surcharge under such enabling provision. There is no infringement of any legal or fundamental rights of the petitioners in demanding the fuel surcharge worked out on final basis by the Board. It was observed in Mademsetty Satyana-rayana v. G, Yelloii Rav, AIR 1965 SC 1405 fat p. 1409) as under:--
'Mr. Lakshmaiah cited a long catena of English decisions to define the scope of a Court's discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems. English and Indian, qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity in India to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay -- the time lag depending upon circumstances -- may itself be sufficient to refuse the relief but, in India mere delay caused be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law if it is beyond time; the suit will be dismissed as barred by time; in either case, no question of equity arises.'
22. Under the terms of the agreement and the provisions contained in the Tariffs, the petitioners were bound to pay fuel surcharge at the final rate and there is no question that charging of fuel surcharge can in any manner constitute an impediment to the trade of the; petitioners. The utmost that can be said was that it would result in the diminution of profits. I find support from the following observations made by their Lordships of the Supreme Court in Nazeeria Motor Service v. State of Andhra Pradesh, AIR 1970 SC 1864 (at p. 1867):--
'This is sufficient to dispose of the challenge under Art, 19 (1) fg) as well. We may in this connection refer briefly to the conclusion of the High Court which was reached on a consideration of the affidavits filed before it. It has been found that there is no material which would warrant the conclusion that the increase in the surcharge of the fares and freight contemplated by the impugned validating Act would constitute an impediment to the trade. The utmost that could be said was that it would result in the diminution of profits. Even on the assumption that the profits would be diminished or greatly reduced it cannot be held that there is any infringement of Art, 19 (1) (g).' So far as the very levy of fuel surcharge is concerned, the same has neither been disputed nor challenged by the petitioners. The fuel surcharge is in substance an additional or extra charge and its scope cannot be circumscribed by its nomenclature. Every surcharge is an extra charge, and as such, part of Tariff. The Supreme Court in the case of Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board. AIR 1976 SC 127 fat p. 130) observed as follows :--
'The word surcharge is not defined in the Act, but etymologically, inter alia, surcharge stands for an additional or extra charge or payment (see Shorter Oxford English Dictionary). Surcharge is thus a super-added charge, a charge over and above the usual or current dues. Although, therefore, in the present case it is in the form of a surcharge, it is in substance an addition to the stipulated rates of Tariff. The nomenclature, therefore does not alter the position.'
I find force in the contention of the learned Solicitor General in this refagd that time was not essence of performance of the contract in this case and if good or sufficient cause was shown for not working out the final rate of fuel surcharge by the end of an year, this would continue unless barred by limitation. There can be no manner of doubt in the principles enunciated in Nazir Ahmad v. King Emperor (AIR 1936 PC 253 (2)) (supra) and Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd. (AIR 1972 SC 2563) (supra) cited by Mr. Mridul but in the cases in hand it cannot be said that the Board had not exercised its power in the manner and mode specified in the fuel adjustment clause. The argument can be made available to the petitioners in case the final rates of fuels surcharge are not worked out according to the formula contained in the said clause. It cannot, therefore be said that the Board had no power to work out the final rates of fuel surcharge after one year or maximum before the conclusion of the next following year.
23. On the next point it was contended by Mr. Mridul that the action of the Board is violative of Article 14 of the Constitution. It was submitted in this regard that the impugned bill neither disclosed the material nor the basis for the revision of the rates of fuel surcharge for the period mentioned therein. The statement contained in the bill was absolutely vague and laconic. Though by letters written on behalf of the petitioners the Board was called upon to give the data and calculation sheet of the alleged adjustment of fuel surcharge but the Board did not furnish the requisite information.
It has been further contended that the rates, if any determined by the Board were not based on relevant material nor the Board applied its mind in determining the final rates of surcharge. It is further submitted that the cost of fuel at the time of framing the Tariffs already stands covered under the energy charges prescribed under the Tariff. It was also submitted in this regard that the amount of fuel surcharge was an expenditure incurred only and exclusively for business of the Company and as such allowable for deduction against the chargeable profits, for computation of income-tax during the relevant accounting year only. Since income-tax assessment in respect of the petitioner company for the year 1974 to 1977 has already been finalised long back, and, if now it will be required to pay fuel surcharge for the aforesaid period it will not be able to claim it as allowable expenditure during the current accounting year. It is further submitted that the steep increase in final rate of fuel surcharge from the financial year 1975-77 is arbitrary and without justification. No basis of the said increase has been given in the notification, dated August 7, 1982. The respondent-Board is a statutory body and as such is under an obligation to reveal such basis of extra charge to its consumers. It was also argued by Mr. Mridul that in any case such material should be shown to the Court. The respondent-Board even in its reply has not revealed any facts or material and the burden lay on the respondent to disclose all such material before the Court. Reliance is placed on Vrailal Manilal and Co. v. State of Madhya Fradesh. AIR 1970 SC 129. Smt. Maneka Gandhi v. Union of India AIR 1978 SC 597, Ramana Dayaram Shelly v. International Airport Authority of India, AIR 1979. SC 1628, M/s. Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir. AIR 1980 SC 1992 and D. S. Nakara v. Union of India, AIR 1983 SC 136.
24. On the other hand it was contended by learned Solicitor General that the burden to bring out a case under Article 14 of the Constitution lay on the petitioner. It was contended that the basis for working out the rate of fuel surcharge was already contained in the Tariffs and there was no question of acting in an arbitrary manner by the Board. It has been clearly stated in the reply that the bills contained the final rate of fuel surcharge for the different periods shown against each and the amount payable by the petitioners for such period. The board was not under obligation to give to its consumers the basis or details of such factors which formed components of the formula working out the final rate of fuel surcharge. In the present case, the final rates have been computed according to the formula and the cost factor has been duly kept in view. The notification need not contain the basis of calculations. The formula is already available in the relevant Tariff and the same, is not required to be repeated in the notification. The consumers are not entitled to the particulars of the various prices and costs and other factors which enable the Board to finalise its Tariffs. If the Board is required to disclose these details to its consumers the task would be very heavy and it would be impossible to meet the queries of its innumerable consumers. The agreement and even the fuel adjustment clause provides that the decision of the Board in the matter of finalisation of rates would be final and binding on the consumers. It was further submitted that this was not a case of any revision of rates of fuel surcharge, but the charges were finalised according to the formula for fuel adjustment clause prevailing in the Tariff for the relevant period. The petitioners had so far paid on the basis of provisional rates and now they are asked to pay the difference on the calculations worked out on final basis. Framing of Tariffs and demanding the money according to the Tariffs was purely an executive function and the same cannot be disputed by the petitioners. It was also submitted by learned Solicitor General as laid down in Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir (supra) that at the most there were only two limitations imposed by law which controlled the discretion of the Board in this behalf. The first was in regard to the terms on which largess may be granted and the other, in regard to the persons who may be recipients of such largess. The Board in the present case has not made any violation of these two limitations. It is not the case of the petitioners that any discrimination has been made in laying down different terms of fuel adjustment clause nor with regard to the persons in working out the formula. Reliance is also placed on the following observations made in Saraswati Industrial 'Syndicate Ltd. v. Union of India, AIR 1975 SC 460 (at p. 464) :
'The petitioners did not challenge the price fixation on the ground that a quasi-judicial procedure had to be adopted before prices are fixed even if such price fixation affects, as it must, each factory-Price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report of other material. It could not, therefore, give rise to a complaint that a rule of natural justice has not been followed in fixing the price. Nevertheless, the criterion adopted must be reasonable. Reasonableness, for purposes of judging whether there was an 'excess of power' or an 'arbitrary' exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power. This was made clear by this Court in the two cases cited on behalf of the appellants Shree Meenakshi Mills Ltd. v. Union of India (1974) 1 SCC 468 : (AIR 1974 SC 366); Panipat Co-operative Sugar Mills v Union of India (1973? 2 SCR 860 : (AIR 1973 SC 5371.'
25. To my view the controversy raised by the petitioners is not of much consequence now as during the course of arguments an application was submitted on behalf of the petitioners on April 8, 1983 for giving direction to the respondents to produce certain documents. In answer to the said application the Board filed calculations of the fuel surcharge which give out the details of the amount of each component contained in the formula. A copy of the calculations was also furnished to learned counsel for the petitioners. Arguments on all other points were concluded on April 8, 1983 and the learned counsel for the petitioners sought time to make arguments on calculations of fuel surcharge as submitted by the Board. The case was again heard on April 13, 1983 and the learned counsel for the petitioners pointed out only one mistake in the calculations that the element of interest was wrongly included and calculated in arriving at the final rates of fuel surcharge. An application for further directions was also submitted on April 13, 1983 for which this Court had given a direction that the same would be disposed of along with final decision of these cases. In the application filed on April 13, 1983 it has been prayed that the Board should be directed to produce the complete records and details of computation of the figures furnished by it. I see no valid justification for giving a direction to the Board for placing the complete record and details of computation of figures furnished by it for verification of the same by the petitioners. Neither it is feasible nor in the public interest nor it is a legal right of the petitioners to see the complete record with regard to the various figures submitted by the Board in working out each component of the formula. The only right available to the petitioners in this regard is to object that any extraneous matter cannot be included 'in working out the formula. From the details given out by the Board for working out the formula it was clear that the element of interest has also been included. Neither the formula given under the fuel adjustment clause in the Tariffs empower the Board to include any interest in arriving at the final rates of fuel surcharge, nor learned counsel for the respondents were able to show any provision of law or authority under which such interest could be claimed from the petitioners. The inclusion of the interest in working out the formula is the only extraneous consideration which is illegal and is liable to be struck down. I do not find any force in the contention of the learned counsel for the petitioners that in view of inclusion of the interest alone the entire action taken by the Board should be declared as illegal and all the notifications should be struck down on this ground alone. The point raised under Article 14 of the Constitution is decided in the manner indicated above.
26. It was next submitted by Mr. Mridul that there was violation of principle of natural justice in not furnishing the material on the basis of which a revision in the rate of fuel surcharge was made, it was further submitted that the Board was a statutory body and in determining the fuel surcharge it was performing a statutory function and as such was bound to grant an opportunity of personal hearing. It was all the more necessary when the fuel surcharge was demanded retrospectively from the year 1974. It was submitted that it was wrong on the part of the Board to claim this right on the plea that the number of the consumers was innumerable. According to Board's own showing the number of such large industrial consumers who were receiving High Tension supply was approximately 450 and in these circumstances an opportunity of hearing or at least to consider representations ought to have been given. Reliance is placed on State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269. A. K. Kraipak v. Union of India, AIR 1970 SC 150, Daud Ahmad v. District Magistrate. Allahabad, AIR 1972 SC 896 and S. L. Kapoor v. Jagmohan, AIR 1981 SC 136. In my view the question of principle of natural justice, depends on the facts and circumstances of each case. Neither there is any provision under any law, nor in the Tariffs for giving an opportunity of personal hearing to the petitioners. In the provisions for fuel adjustment clause itself it is mentioned that the decision of the Board will be final and binding on the consumers. In a matter where the Board works out the fuel surcharge on the basis of a formula which is already contained in the Tariff it is already known to every consumer that the same would be worked out on the basis of the formula given in the Tariff. However, when such demand is made retrospectively for a number of years and the liability goes to several lacs of rupees, it is the duty of the Board to at least give out the figures for calculating each component of the formula. There is neither any question of public policy involved nor anything sacrosanct in not furnishing such information to a consumer if the same is demanded from the Board. Even under the principles of ordinary law of contract if a purchaser wants the 'details of the price of the goods worked out by the seller, he is entitled to get the same. In these cases also when the calculations were given in the Court, then it was revealed that the interest was wrongly charged in working out the final rate of fuel surcharge. Most probably this unnecessary litigation could have been avoided in case such intermation would have been given to the consumers before hand. Be that as it may, this ground of violation of principle of natural justice has lost its force after the funishing of calculations of fuel surcharge during the tours of arguments before this Court.
27. Last but not least it was argued by learned counsel for the petitioners that the Board was estopped under the principles of promissory and equitable estoppel from levying any additional fuel surcharge in purported exercise of its powers under the fuel adjustment clause. Though this argument was raised but could not be pressed further to its logical conclusion. There hardly arises any Question of promissory or equitable estoppel in the facts and circumstances of this case. The petitioners have not been made to change their position in any manner on account of the conduct of the respondent. The liability to Day fuel surcharge arises under the fuel adjustment elapse contained in the Tariffs, and the question relates in the working out of the filial rates of fuel surcharge and there hardly arises any question of estoppel in this case, I have mentioned this argument only for the purpose of being rejected otherwise the same was not seriously pressed by Mr. Mridul also.
28. In the result, these writ petitions are partly allowed. In working out the final rates of fuel surcharge the element of interest will have to be excluded and calculations should be made afresh by excluding the interest in working out the formula. The Board shall serve fresh bills on the petitioners by calculating the amount after excluding the amount of interest. During the course of pendency of these writ petitions, on the basis of orders passed on stay applications some of the petitioners have filed Bank guarantees, in some cases the 'petitioners have alleged to have made payments by cheque or cash. The Board will calculate the amount and serve the bills afresh within a month from today and for this period the petitioners will not be able to withdraw their Bank guarantees. In case fresh bills are not served within the aforesaid period of one month, then the petitioners would be free to withdraw their Bank guarantees. The amounts paid by cheque or in cash by the petitioners or by Bank guarantees would be adjusted towards the amounts now calculated afresh excluding the amount of interest. In case the Board has received any amount in excess, the same would be refunded or adjusted. In the facts and circumstances of the case the parties shall bear their own costs.