Andhra HC (Pre-Telangana)
A.P.S.E.B. And Ors. vs Warangal Municipal Corporation, ... on 5 February, 2002
Equivalent citations: AIR2002AP210, AIR 2002 ANDHRA PRADESH 210
JUDGMENT S.R. Nayak, J.
1. W.A. No. 558 of 1998 is directed-against the order of the learned single Judge dated 3-3-1998 made in W.P.No. 26870 of 1996. The learned Judge has held that the electricity supplied by the A.P. State Electricity Board (for short, the Board) to the Warangal Municipal Corporation for its water works fall under HT Category VI and not under HT Category I. Following the above judgment the learned Judge has allowed W.P. No. 6239 of 1997 filed by Rajahmundry Municipal Corporation, by his order dated 12-3-1998 and the validity of the said order is assailed in W. A. No. 767 of 1998.
2. The common question that arises for decision in these two appeals is whether the electricity supply by the Board to the Municipalities and Corporations for their water works with contract/connected load above 75HP/55 KW falls under HT Category I or HT Category VI. This question arises in the following factual background :
The Board supplied electricty to Warangal and Rajahmundry Municipal Corporations for the water works carried on by them with contracted/connected load above 75HP/56 KW. According to these Corporations, the electricity supplied by the Board has to be charged in terms of the tariff applicable to HT Category VI, whereas according to the Board, it has to be charged in terms of the tariff applicable to HT Category I. Assailing the action of the Board in charging the supply of electricity under HT Category I, writ petition Nos. 26879 of 1996 and 6239 of 1997 were filed by the Warangal Municipal Corporation and Rajahmuhdry Municipal Corporation respectively praying for a Mandamus declaring the billing by the Board in respect of the supply of electricity to water works under HT Category I as illegal and for a consequential direction to the Board to charge the same and levy tariff under HT Category VI. The Board opposed-the writ petitions by filing counter affidavits. In the counter affidavit, it was contended that the Board, from the beginning, has categorised the HT services of Municipalities and Corporations availing supply of electricity for water works, filter beds etc., under HT Category, I and that the tariff applicable to HT Category VI is not applicable inasmuch as HT Category VI tariff is applicable exlusively for townships and residential colonies of consumers under HT Categories I to V and bulk supplies for domestic purposes such a lighting, fans, heating and common facilities such as non domestic supply in residential area and street lighting and water supply etc. It was also contended that the petitioner Corporations cannot claim to be classified under HT Category VI merely because the words "water supply" is mentioned in the description of that category.
3. The learned single Judge, on consideration of the rival contentions and taking into account the clarification issued by the Government of Andhra Pradesh, Municipal Administration and Urban Development Department in Memo No. 27984/D2/96-1 dated 21-2-1997. came to the conclusion that the electricity supplied to the Corporations have to be billed only under HT Category VI, and the tariffs applicable to HT Category I are not applicable. In the light of that finding the learned single Judge allowed the writ petitions by order dated 3-3-1998. The operative portion of the order made in the writ petitions reads--
"I allow the writ petition and direct the respondent --- Electricity Board to charge the petitioners water processing unit under Category VI with effect from 30-7-1996. If any excess amount is collected regarding the energy consumed after 30-7-1996. the same shall be adjusted in future bills, No costs."
Hence these two applies by the Board arid the authorities assailing the validity of the orders of the learned single Judge.
4. Sri N. Subba Reddy, learned Counsel appearing for the Board, while assailing the correctness of the finding recorded by the learned single Judge and the reliefs granted in the writ petitions, would contend that (i) municipal water works is covered by HT Category I and not HT Category VI; and (ii) the clarification issued by the Government in Its Memo dated 21-2-1997 that Municipal water works is covered by HT Category VI, is not legal and without any authority of law.
The learned Senior Counsel would alternatively contend that even assuming but not admitting that the State Government has the power to issue directions under Section 78-A of the Electricity (Supply) Act, 1948 (for short, the Supply Act), the direction contained in the said Memo dated 21-2-1997 goes beyond the power conferred upon the State Government under Section 78-A of the Supply Act.
5. On the other hand, Sri C,V. Nagarjuna Reddy, learned Standing Counsel for Warangal Municipal Corporation would firstly contend that supply of water by the Corporation to the consumers does not involve any industrial activity and, therefore, supply of electricity for that purpose cannot be treated to be one for industrial purpose within the meaning of that term occurring in HT Category I. Alternatively, the learned counsel would contend that even assuming that supply of water to the consumers by the Corporation through its water works involves industrial activity like manufacturing or processing or preserving, even then, having regard to the exclusion clause contained in HT Category I. the tariff applicable to HT Category I, would not apply in re-spect of electricity supplied to the Corporation for the water works. Elaborating this contention, the learned counsel would contend that the expression 'industrial purpose' within the meaning of that term as defined under HT Category 1, does not include shops, business, house, office, public buildings, hospitals hotels, hostels, choultries, restaurants, clubs, theatres, cinemas, railway stations and "other similar premises ", and that the water works carried on by the Corporations should be treated as the one which comes under the head "similar premises" on par with shops, business houses, offices etc. Therefore, the learned counsel would maintain that the tariff applicable to HT Category I is not applicable to the supply of electricity for water works. The learned counsel would contend that although HT Category VI applies exclusively to townhships and residential colonies. If one goes by the heading of HT Categopry VI literally, it could be seen that the tariff applicable to HT Category VI also applies to the electricity to street lighting and water supply etc. In other words, the learned counsel would maintain that the supply of electricity for water supply is an independent sub-head of supply which can be billed in terms of tariff prescribed for HT Category VI consumers. The learned counsel would maintain that the Government, as reflected in its memo dated 21-2-1997, rightly opined and directed that the tariff under HT Category VI would be applicable to Municipal water works from 30-7-1996. i.e. the date of issue of revised tariff notification. For all these reasons, the learned counsel would maintain that no ground is made out for Interfering with the order passed by the learned single Judge,
6. The Board was constituted under Section 5 of the Supply Act, on 1-4-1959 and since then it had been functioning as the principal supplier of electricity in the State of Andhra Pradesh till recent reforms were brought about by the Andhra Pradesh Electricity Reforms Act. 1998. Under the Supply Act, the Board was charged with statutory obligation of promoting the co-ordinated development of generation, supply and distribution of electricity in an efficient and economic manner in terms of Section 18 of the said Act. The Board had classified its consumers into certain categories on the basis of supply and the purposes for which supply is required by the consumers and charging different tariffs to different categories of consumers in exercise of the powers granted to it under Section 49 of the Supply Act in compliance with the guidelines contained in Sub-sections (1) to (4) of Section 49 of the Supply Act. The Board is a public utility undertaking and in the discharge of Us functions, it shall be guided by such directions on the questions of policy as may be given to it by the State Government in exercise of the power conferred upon the State Government under Section 78-A of the Supply Act. The Board has fixed concessional/free power tariffs to certain categories of consumers as directed by the State Government in exercise of its power under Section 78A of the Supply Act.
7. Before appreciating the rival contentions of the learned counsel for the parties, it is appropriate to first notice the relevant statutory provisions. Section 49 of the Supply Act reads--
"49. Provision for the sale of electricity by the Board to persons other than licensees:-- (1) Subject to the provisions of this Act and of regulations, if any made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs.
(2) in fixing the uniform tariffs, the Board shall have regard to all or any of the following factors namely:
(a) the nature of the supply and the purposes for which it is required;
(b) the co-ordinate development of the supply and distribution of electricity within the State in the most efficient and economic manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee:
(c) the simplification and standardisation of methods and rates of charges for such supplies;
(d) the extentlon and cheapening of supplies of electricity to sparsely developed areas.
(3) Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant facts.
(4) in fixing the tariff and terms and con-ditions for the supply of electricity, the Board shall not show undue preference to any person."
Section 78-A of the Supply Act reads--
"78-A Directions by the State Government :-- (1) in discharge of its functions, the Board shall be guided by such directions on questions of policy as may be given to it by the State Government.
(2) if any dispute arises between the Board and the State Government as to whether a question is or is not a question of policy it shall be referred to the Authority whose decision thereon shall be final."
8. The Board revised the tariffs vide B.P. Ms. No. 32 (Operation and Commercial) dated 29-7-1996 published in A.P. Gazette Part II Extra-ordinary dated 30-7-1996 in exercise of the powers under Section 49 of the Supply Act categorising the consumers into several categories for the purpose of different tariff application. HT Category I reads--
"H. T. Category I. This tariff is applicable for supply to all H.T. Industrial Consumers other than Power intensive Consumers under H.T. Category III. Industrial purpose shall mean manufacturing, processing and/or preserving goods for sale, but shall not include shops, business houses, public buildings, hospitals, hotels, hostels choultries, restaurants clubs, theatres, cinemas' railway stations and other similar premises notwithstanding any manufacturing, processing or preserving goods for sale."
HT category VI reads--
"H.T. Category VI.
Townships and Residential Colonies. This tariff is appliable H.T. Supply exclusively for Townships, Residential Colonies of consumers under HT Categories I to V and bulk supplies for domestic purpose such as lighting, fans heating and common facilities such as non-domestic supply in residential area and street lighting and water supply etc. Conditions :
i. The consumer shall lay suitable internal distribution lines at his own cost and maintain the same in accordance with the statutory rules and Boards directions if any, ii. The persons to whom supply is given by the consumer shall not be charged for the electricity consumed by them at rates above the rates charged by the Board for similar category of consumers of the Board.
LT Category III reads -
"L.T. Category III.
INDUSTRIAL.
The tariffs are applicable for supply of electricity to L.T. consumers with a contracted/connected load of 75 HP/56 KW and below including Incidental lighting. Provided that LT III Industrial Category Services released or sanctioned prior to the 15th July, 1987 with a rating of any one item of equipment not exceeding 75 HP of 56 KW and the total contracted load /connected load not exceeding 125 HP/93 KW with contracted demand not less than 60% of total contracted/connected load subject to a ceiling of 75HP/56 KW shall continue to be billed under L.T. III Industrial Category tariff, industrial purpose shall mean supply for purpose of manufacturing , processing and/or preserving goods for sale but shall not include shops business houses, offices, public buildings hospitals hotels, hostels, choultries, restaurants, clubs, theatres, cinemas, railway stations and other similar premises, notwithstanding any manufacturing processing or preserving goods for sale.
Note.
1. This tariff will also apply to;
1. Water works and sewage pumping stations operated by Local Authorities or Government Departments or Co-op. House Building Societies and pump sets of II. XX III. XX"
9. The services of Municipal water works and sewage pumping stations operated by Local Authorities like the Municipalities or the Corporations or Government Departments or Co.op. House Building Socities and pump sets of railways with contracted/connected loadk of 75/HP/56 KW come under LT Industrial Category III, and those consumers whose contracted/connected load exceeds75/HP/56 KW fall under HT Category. There is no controversy between the parties that the electricity supplied by the Board to the Municipal Corporations of Warangal and Rajahmundry for their water works exceeds 75/HP/56 KW. Therefore, they would fall under HT Category I provided the electricity is used for industrial purpose. The argument of the learned counsel for the Corporations is that they are not industrial consumers .The provisions of HT Category I itself defines the expression industrial purpose' to mean manufacturing, processing and/or preserving the goods for sale. Therefore, the question to be considered is whether the activity carried on by the Corporations in the process of extracting water from the filter bed, purification thereof, preserving and supplying the same to the consumers, Involves any Industrial activity or not. In the affidavit filed in support of the writ petition No. 26879 of 1996. In paragraph 2, it is stated --
"Where in Warangal town, within the Municipal limits, the petitioner is obliged to continue with the function of supplying the drinking water and for that purpose maintain water filter beds and filter plants for purification of drinking water for supplying the same to the people of Warangal City,"
From this statement of the Corporation itself, it can safely be said that the electricity is used for industrial purpose within the meaning of that term occurring in HT Category I. There is also no merit in the contention of the learned counsel for the Corporations that the supply of electricity made to the Corporations for water works falls within the exclusionary clause in HT Category I. It is true that the tariff in HT Category I is not applicable to power supplied to shops, business houses, hostels, hotels, choultries, hospitals, threatres, cinemas, etc. and other similar premises notwithstanding any manufacturing process or preserving the goods for sale. In order to bring water works within the exclusionary clause, it becomes necessary to decide whether water works undertaken by the Corporations could reasonably be brought under the expression "similar premises" occurring in HT Category 1. The expression "similar premises" should be understood and interpreted by applying the maxim Ejusdem Generis. According to this rule when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified. This rule reflects an attempt to reconcile Incompatibility between the specific and general words in view of the other rules of Interpretation that all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute are presumed to be superfluous. The rule of ejusdem generis applies when (i) the statute contains an enumeration of specific words : (ii) subjects of enumeration constitute a class or category, (iii) that class or category is not exhausted by the enumeration; (iv) the general terms fol-low the enumeration and (v) there is no indication of a different legislative intent. If the subjects of enumeration belong to a broad based genus as Co also to a narrower genus, there is no principle that the general words should be confined to the narrower genus. In A.G.Brown, (1920) 1 KB 773 by applying the rule of ejusdem generis, the words, "any other goods" occurring in Section 43 of the Customs (Consolidation) Act, 1876 which empowered His Majesty by order in Council to prohibit the Importation of arms, ammunition, or gun powder or any other goods were construed as referring to goods similar to arms, ammunition or gun powder. In Siddeshwari Cotton Mills (P) Ltd. v. Union of India, , the rule of ejusdem generis was applied in construing the words any other process' in Section 2(f)(v) of the Central Excises and Salt Act, 1944 which defines 'manufacture' in relation to goods in Item No. 19-I of the Schedule to the Central Excise Tariff Act. 1985 to Include bleaching, mercerizing dyeing , printing, water proofing rubberizing shrinkpoofing, organdie processing or any other process -- The Supreme Court held that the process enumerated contemplate processes which import change of a lasting character to the fabric by either the addition of some chemical Into the fabric or otherwise and any other process' in the section must share one or the other of these incidents which constitute manufacture !n the extended sense. Further, by applying the same principle, the Privy Council in Chhajju Ram v. Neki, held that the words "any other sufficient reason" occurring in Rule 1 of Order 47. Civil Procedure Code, 1908, must be taken as meaning a reason sufficient on the grounds at least analgous to those specified Immediately previously. To the same effect are the decisions in Bisheswar Pratap Sahi v. Parth Nath. AIR 1934 PC 213 Tribhuvan Prakash Nayyar v. Union of India, . Further in Abdul Rahim v. Syed Abu Mohamed Barkat All Shah. AIR 1928 PC 16 the phrase "further and other relief occurring in Section 92(1)(h) of the Code was held by the Privy Council to mean relief of the same nature as specified in Clauses (a) to (g) of the same section. In the light of the rule of Ejusdem Generis as Interpreted and applied by the courts as noted above, the water works undertaken and carried on by the writ petitioner Corporations cannot be treated as a premise analogous to shop/office/business house, hostel, hotel etc. Water works is rather an activity, and not a premise. Looking from that angle also, the contention of the learned counsel for the Corporation is not well founded. The resultant position is that the water works carried on by the Corporation involves Industrial activity and. therefore, supply of electricity by the Board to the Corporations for that purpose should be treated as the one for industrial purpose. Since these ingredients are established, the water works cannot be brought under the exclusionary clause and, therefore, there is no difficulty for applying the tariff applicable to HT Category I consumers for the electricity supplied by the Board to the Corporations for their water works.
10. There is no merit in the contention of the learned counsel for the Corporation that electricity supplied by the Board for water works falls under HT Category VI, Both the heading as well as the preamble of HT Category VI make it very clear that this category tariff applies to HT supply exclusively for townships and residential colonies. No doubt, HT Category VI refers to not "only supply of electricity for townships and residential colonies, but also bulk supplies for domestic purpose and non-domestic purpose enumerated therein. The argument of Sri C. V. Nagarjuna Reddy. learned Standing Counsel for Warangal Municipal Corporation is that if the tariff under HT Category VI is exclusively applicable only to townships and residential colonies, there was no need for the Board to separately mention bulk supply of electricity for domestic and non-domestic purposes enumerated therein". The consumption of electricity in a township or a residential colony may be for domestic purpose as well .as for non-domestic purpose. The term 'bulk supply' is not an unintended or unnecessary term used by the Board in HT Category VI. In fact, the term 'bulk supply' is defined in Clause 2.8 of the Revised Terms and Conditions of Supply notified in B.P.Ms. No. 690 dated 1/-9-1975. It reads--
"2.8 'Bulk supply' means the supply given to :
2.8.1. Another State Electricity Board or a licensee for purpose of distribution in his area of supply; or 2.8.2 Consumers for industrial and/or non-industrial purposes contracting for loads not less than 70 KVA and above and/ or having a connected load exceeding 75 HP at High Tension supply.
Provided that Board may supply power at LT Industrial/Non-Jndustrial loads [not exceeding 150 HP) subject to specific conditions prescribed by the Board in the tariff notification/amendments issued from time to time."
If the above meaning of 'bulk supply' is kept in mind, it would clearly indicate that the tariff applicable to HT Category VI consumers is applicable only to the supply of electricity made to townships and residential colonies whether it is for domestic or non-domestic purpose, whether it is merely a supply or a bulk supply. It is also relevant to notice that HT Category VI does not refer to or speak about Industrial purpose or purposes for which the supply of electricity is made, whereas HT Category I specifically refers to supply of electricity for Industrial purpose and also defines 'industrial purpose.' Further, condition No. (i) incorporated in HT Category VI clearly demonstrates that if the tariff specified in HT Category VI has to be applied, then, a consumer shall lay suitable internal distribution lines at his own cost and maintain the same in accordance with the statutory rules and the Board's directions, if any. It is not the case of the Corporations that internal distribution lines for the purpose of water works carried on by them are laid by the Corporations themselves or that they are maintaining the lines in accordance with the statutory rules and/ or the prescriptions made by the Board from time to time. Looking from that angle also, the electricity supplied by the Board to the Corporations for their water works cannot be billed in terms of tariff applicable to HT Category VI consumers. HT Category VI, it is trite, is applicable to HT supply of electricity exclusively for townships, residential colonies of consumers under HT Categories I to V and bulk supplies for domestic purpose such as lighting, fans, heating and common facilities such as non-domestic supply in residential area and street lighting and water supply etc. A careful combined reading of the provisions of HT Category VI with the conditions make it very clear that the tariff applicable to HT Category VI consumers is applicable only to townships, residential colonies of consumers under HT Categories I to V and bulk supplies and not applicable to Municipal Water Works and sewage pumping stations. Further, it needs to be emphasised that a careful reading of the tariffs mentioned under HT Category 1 and LT Category HI reveals that different tariffs are applicable for the electricity supplied by the Board to the Municipal Water Works depending upon the contracted load. If the contracted load is above 75 HP/55 KW. the tariff applicable to LT Category III has no application as could be seen from the provision extracted above. If that is so, having regard to the fact that the language employed in HT Category I and LT Category III is substantially similar, it cannot be said that simply because the quantum of electricity supplied to the Municipal Water Works exceeds 75 HP/56 KW, the tariff of HT Category I is not applicable,
11. This takes us to the other contention of the learned Standing Counsel for the Corporations that even the Government by issuing the clarification vide Memo dated 21-2-1996 has opined that HT Category VI tariff would be applicable to the Municipal Waterworks from 30-7-1996 and, therefore, no exception can be taken to the opinion of the learned single Judge. In appreciating this contention, it becomes necessary to consider whether the clarification issued by the Government in its memo dated 21-2-1997 is in pursuance of the authority granted by law, and secondly even assuming that the Government is vested with the power to issue directions under Section 78-A of the Supply Act, whether the clarification issued in memo dated 21 -2-1997 is within the limitation of the power or goes beyond that power. As pointed out supra, under Sub-section (1) of Section 78-A of the Supply Act, the State Government is armed with the power to issue directions on questions of policy and if such directions are issued by the Government, then, the Board shall be guided by such directions in its functioning. The immediate question that arises for consideration is whether the direction contained in the memo dated 21-2-1997 is a direction on any question of policy within the contemplation of Sub-section (1) of Section 78-A of the Act. We are afraid, that direction cannot be treated as a direction on any question of policy. We do not find any policy in the above memo of the Government. What we find a direction without being supported by any reasoning that HT Category VI tariff should be applied to Municipal Water Works from 30-7-1996. Even then, it would have been enforced against the Board provided that direction does not violate the categorisation of consumers made by the Board by virtue of the statutory power conferred upon it under Section 49 of the Supply Act. As pointed out supra, supply of electricity to the water works carried on by the Corporations falls under HT Category I and not HT Category VI and if that la so, merely because the Government directs the Board that HT Category VI tariff would be applicable to Municipal Water Works from 30-7-1996, that cannot be treated as a policy decision taken by the Government and at any rate that cannot be enforced against the Board. We say this because the power conferred upon the State Government under Section 78-A of the Act is not a power to exempt from the provisions of the Act and the Regulations made thereunder. Therefore, any direction that may be issued by the State Government by virtue of the power conferred upon it under Sub-section (1) of Section 78-A of the Supply Act on any question of policy should be in consonance with the statutory provisions and the State Government by issuing such a direction cannot supplant the statutory provisions. The categorisation of consumers by the Board is a statutory action and that cannot be whittled down by the State Government by issuing directions under Section 78-A of the Act.
12. In the result and for the foregoing reasons, we allow the writ appeals and set aside the order impugned in each of the writ appeals. Consequently, the writ petitions are dismissed. No costs.