D.D. Axles Pvt. Ltd vs Municipal Corporation Of Delhi ...
1995 Latest Caselaw 82 Del

JUDGMENT

D.K. Jain, J.

(1) ADMIT.

(2) Since a very short question of law is involved, we propose to dispose of this appeal at this stage itself.

(3) This appeal is by a large industrial power consumer against the order of the learned Single Judge passed in various I.As. in Suit No. 1403-A/93, vacating the interim stay orders to the extent to which these restrained the Delhi Electric Supply Undertaking (D.E.S.U. for short) from recovering from the appellant the demand charges and/or minimum consumption guarantee (in short the M.C.G.) charges and also holding that the dispute raised by the appellant in its petition under Section 20 of the Arbitration Act, 1940 challenging the respondent D.E.S.U.'s right to recover demand charges and/or M.C.G. charges, as the case may be, is not available for reference to Arbitrator.

(4) As will be noticed hereafter the controversy raised is with respect to the calculation of the tariff amount/consumption charges payable by the appellant per month and the dispute pertains to the interpretation of the Large Industrial Power (L.I.P. for short) tariff condition for the year 1991-92. In short, the dispute is whether under the said tariff both the demand charges at a fixed rate as also the energy charges for the actual consumption of energy are payable or either of the two, depending upon their quantum, is payable by an L.I.P. consumer. We for once had thought that in view of the recent pronouncement of the Supreme Court in M.C.D. Vs. Asian Art Printers (P) Ltd. , wherein the tariff entry for the "Mixed Load H.T.", which, we feel" is similar in substance to the L.I.P. tariff condition, has been considered, the issue raised is no longer res-integra but relying on certain observations in Paras 15 and 18 of the said judgment, learned counsel for the appellant has strenuously urged that it is not so. It has, therefore, become necessary to examine the relevant tariff conditions, which read thus:

B)Large Industrial Power (L.I.P.)

A)Availability

AVAILABLE as primary power to Large Industrial consumers having connected load above 100 K.W. including lighting load;

B)Character of service:

A.C.50cycles,3phase,IIKV.

C)Tariff:

DEMANDCharges:

RS.60.00per month per Kva or part thereof of the connected load or as per load in the test report, whichever is higher.

Plus

ENERGYCharges:

200paise per unit subject to minimum payment as laid down in item (d) below and adjustment clause (xviii) above under General Conditions of Application.

D)Minimum bill:

THE amount of the demand charges as laid down in 'C' under head Tariff above."

(5) Presently, we are concerned with clause (c) quoted above. It obviously provides for two part tariff. First part comprises of "demand charges" to be calculated at the prescribed rate with reference to the committed or connected load, and the second part of "energy charges", calculated with reference to the units consumed. The controversy raised is as to what is the effect or the purport of the word "PLUS" occurring between the two clauses. The stand of the appellant consumer is that as per the tariff, firstly the demand charges are to be ascertained at Rs.60.00 per month per KVA; then the energy charges have to be calculated at 200 paise per unit for the energy actually consumed and if the energy charges are less than the demand charges, latter charges in full are payable. In case the energy charges and the demand charges are equal, only the demand charges are payable; if, however, the energy charges exceed the demand charges, then only the energy charges are payable inasmuch as the demand charges get merged in the energy charges. Succintly, according to the appellant, if consumption of energy by it is more than specified committed load, then it has to pay only for the electricity which has been actually consumed. In this context, reliance is placed on a Division Bench decision of this Court in Gulab Rai Vs. Municipal Corporation of Delhi & Others , which has since been affirmed by the Supreme Court in Ashoka Soap factory Vs. Municipal Corporation of Delhi 1993 (3) Scc 37. The appellant is aggrieved of the action of the D.E.S.U. in including in its bill demand charges at Rs.60.00 per Kva per month in addition to the energy charges, even though in that particular month actual consumption of power by it was more than the minimum consumption guaranteed. On the contrary, the respondent D.E.S.U.'s stand is that on a plain reading of clause (c), providing for two-part tariff incorporating the word 'Plus' between the demand charges and energy charges, both the demand charges and energy charges have to be calculated on the prescribed rates and then both have to be added together; the total so arrived at is the tariff charges payable by the appellant. Thus, the entire controversy essentially revolves around the purport of the word 'Plus' occurring in clause (c) of the tariff: as to whether it is to be read in its literal sense as "PLUS" or in a derived sense as OR.

(6) We are of the view that the answer to the question posed stands concluded by the authoritative pronouncement of the Supreme Court in Asian Art Printer's case (supra), even though the tariff with which the Supreme Court was dealing pertained to 'Mixed Load H.T'. We do not find any material difference in the setting in which the word 'Plus' has been placed in clause (c) of both the tarrifs, viz., the "Mixed Load H.T." and "L.I.P". In the said decision, the Supreme Court held that the word "Plus" occurring between the two terms, i.e., the 'demand charges' and 'energy charges', has to be read as 'Plus' and not as 'or'. The Supreme Court observed that when clause (c) says that the charges payable are the demand charges plus the energy charges, it means just that; it cannot mean demand charges or energy charges, whichever is higher.

(7) Mr. Malhotra, learned counsel for the appellant, submits that in view of difference in the language in the two tarrifs, prescribing different basis for computing energy charges in clause (c), the ratio of Asian Art Printer's case applies only to mixed load H.T. consumers and does not apply to the fact's on hand because it is a case of an L.I.P. consumer. He also contends that the decision of this Court in Gulab Rai's case supports the view point of the appellant and the same having been upheld by the Supreme Court, its ratio should be applied to the instant .case. We do not agree.

(8) The words in the later part of clause (c) in the tariff for mixed load H.T., on which emphasis is laid by Mr. Malhotra to distinguish the decision in Asian Art Printer's case, reads as under:

"ENERGYCharges;

67paise per unit;

THE above shall be without prejudice to the minimum demand as laid down in (d) below and adjustment clause at .(xviii) under General Conditions of Application."

(9) The effect of these words on the meaning or purport of the formula contained in clause (c) has been explained in Asian Art Printer's case as under: "THE words in clause (c) to the effect "the above shall be without prejudice to the minimum demand as laid down in (d) below..." make no difference to the above understanding. Clause (d) carries the heading "Minimum bill". It reads: "the amount of the demand charges based upon the Kva of billing demand". This only means that even in case there is no consumption, the minimum bill shall be the demand charges based upon the Kva of the billing demand. It may be reiterated that according to clause (c), the formula prescribed therein (demand charges plus energy charges) is "without prejudice to the minimum demand as laid down in (d) below". In the face of these words, it is not possible to read clause (d) as modifying or cutting down the meaning or purport of the formula contained in clause (c). Clause (d) does not purport to do any such thing. All that it says is that the demand charges based upon the Kva of the billing demand shall at any rate represent the minimums bill."

(10) It was thus, held that the words in clause (c) to the effect "the above shall be without prejudice to the minimum demand as laid down in (d) below... ..." had no bearing on the meaning of the word 'Plus' occurring therein. In this view of the matter, we are unable to appreciate as to how the words "200 paise per unit subject to minimum payment as laid down in item (d) ... ... ..." as appearing in clause (c) for L.I.P. tariff can have any bearing on the meaning of the word 'Plus' occurring in the said clause. We feel that these words are relevant only for the purpose of computing the minimum demand to be made towards energy charges.

(11) Since reliance is placed by the appellant to Gulab Rai's case (supra), it would be pertinent to refer to the relevant portion thereof as extracted below: "IT is the two-part tariff system which is applicable to the petitioners, who are large industrial power consumers. Under this system an Lip consumer pays a minimum guarantee consumption charges at the rate fixed by the respondent. If the Lip consumer does not Consume the specified minimum quantity of electricity or no energy at all even then he has to pay the minimum guarantee charges. But in case the consumer consumes more electricity than what is prescribed by the minimum guarantee charges then the consumer pays the minimum guarantee charges and also pays the electricity charges for the actual consumption of electricity, beyond the minimum guarantee charges, in such a manner that the minimum guarantee charges are merged in the total bill for electricity consumed and a rebate is given to the consumer. In I other words, if a consumer consumes more than I the specified minimum quantity of electricity I then, in effect, he will pay for electricity I which is actually consumed by him."

(12) The side lined portion of the observations in the paragraph are made the sheet anchor to contend that under the tariff conditions relating to L.I.P. category, if a consumer consumes more than the specified minimum quantity of power, then he is to pay only for power actually consumed and nothing more. On a careful analysis of the decision, we have not been able to pursuade ourselves to agree with the submission. From a bare reading of the judgment, it is clear that in that case the Court was only examining the validity of the resolution of the M.C.D. whereby the proposal of the Delhi Electricity Supply Committee to enhance the M.C.G. charges from Rs.40.00 per Kva to Rs.340.00 per Kva in respect of arc/induction furnaces had been approved. Apparently, the issue regarding the interpretation of tariff condition relating to the calculation of tariff charges applicable to L.I.P. category, arising in the present appeal, was neither raised nor considered in that case. It is evident that the quoted observations in the para extracted above were by way of a passing reference which may not even have the attributes of an obiter dictum. The observations made in a particular judgment are to be understood and appreciated in the factual background and the respective contentions raised in that case, as held in Municipal Corporation of Bombay & Ors. Vs. Thukral Anjali Deokumar & Ors. . In P.A. Shah Vs. State of Gujarat also, the Supreme Court ruled that "while applying the decision to a later case, the Court which is dealing with it should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation."

(13) Thus, the aforesaid observations in Gulab Rai's case cannot be treated as precedent to determine the controversy raised in the present appeal. Besides, as pointed out by their Lordships in Asian Art Printer's case, the tariff condition in Gulab Rai's case (set out in Para 7 of the judgment) was materially different from the one found in the tariff for the year 1991-92 inasmuch as not only the word 'Plus', now occurring between the demand charges and energy charges, was missing in the quoted tariff, the said tariff also contained a ceiling for the maximum charges, which could not be more than the overall rate of 1.10 paise per unit consumed, which is not there in the present relevant tariff. The judgment in Asian Art Printer's case also takes notice of the relevant part of the tariff being quoted erroneously in Gulab Rai's case with the omission of the word plus' and the same mistake having percolated in the judgment of the Supreme Court in Ashoka Soap Factory's case, to which reference was also made by learned counsel for the appellant. While observing that the earlier decision in Gulab Rai's case was mainly because of the said 'ceiling' and when the ceiling was removed, it was held that in addition to the demand charges, energy charges were also payable, the Supreme Court has made a pointed reference and has in fact approved the later decision of this Court, to which one of us (D.K. Jain, J.) was a party, in Taxmaco Ltd. & Anr. Vs. Chief Secretary, Delhi Administration (CWP No. 1315/91 decided on 24 April 1991). In Taxmaco's case, while taking note of the difference in the tariff for the year 1990-91 and 1991-92 it was observed that the effect employed in the tariff for the year 1991-92 may be that in addition to the demand charges, energy charges have also to be paid.

(14) In our opinion, the ratio of the judgment of the Supreme Court in Asian Art Printer's case squarely applies to a consumer of power in L.I.P. category and the issue raised in the present appeal stands concluded by the said judgment. We are in complete agreement with the learned Single Judge that under tariff for the year 1991-92, an L.I.P. consumer is liable to pay the demand charges as also the energy charges, after the same are computed separately and then added to each other.

15. THERE is no merit in the appeal and the same is, accordingly, dismissed.