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10. The appellant contended that the interpretation of clause 9.1, adopted by the High Court and the Commission was erroneous. According to the appellant, the High Court and the Commission while reading and interpreting the words "charges made by the licensee shall not exceed on average 117% ....." in clause 9.1, have ignored the significance of the words `on average' and rendered the said words redundant and otiose. The appellant contended that they also overlooked the fact that clause 9.1 used the words "charges made" and not the words "charges imposed" or "tariff rates". It was also pointed out that clause 9.1 neither referred to "consumers" or "category of consumers". The appellant submitted that the object of the provision was not to bar category-wise revisions, but to provide for different increases which on averaging increased the overall revenue by 17% over the revenue that would have been derived with reference to pre-revision tariff rates. The appellant contended that the use of the word `average' was intended to mean that the appellant was entitled to apply different rates to different categories of consumers provided the aggregate of revenue on account of the increases did not exceed 17% of the revenue with reference to pre-revision tariff rates. The appellant contended that the provision did not place a ceiling of 17% in regard to increase in the tariff rates for each of the categories; that it was entitled to increase the tariff rates in respect of some categories of consumers beyond 17% while restricting the increase in the tariff rates for other categories to a lesser percentage, to ensure that the total revenue for the electricity consumed during the relevant period, did not exceed 17% over the revenue for such quantum based on the previous interim tariff rates. It was therefore submitted that the tariff notification dated 13.5.1996 was valid.

12. The report of the Commission discloses that in regard to consumers falling under the category `irrigation', the increase was only 8.33% and for the Railways falling under the category `railway traction', the increase was only 10.09%. In regard to the domestic consumers, the increase was 17.47%. In regard to all other categories of consumers, the increase was much more. In particular, for small industries, the increase is said to be 27.59%, for medium industries the increase is said to be 29.73% and for large industries the increase is said to be 32.25%. The question is whether clause 9.1 authorized and permitted the appellant to increase the tariff rate in regard to each category of consumers, by a percentage not exceeding 17% over the pre-revision tariff rate, or whether the appellants had the discretion to increase the tariff rate relating to different categories by different percentages (that is even more than 17% in regard to some categories) so long as the overall revenue on account of different increases, did not exceed on the whole, 17% of the overall revenue calculated at the pre-revision tariff rates. The entire question would thus revolve around the interpretation of the words "shall not exceed on average 117%" in clause 9.1.

Re: Interpretation (i)

16. The first interpretation of clause 9.1 is that it permits increase in tariff rates but with a ceiling of 17% in regard to each and every category of consumers, and therefore the increase in case of no category can exceed 17%, has found favour with the High Court and the Commission. The fact that there can be different percentages of increases in tariff in regard to different categories is an accepted procedure. For example a lesser tariff is applied to agriculturists using electricity for irrigation purposes when compared to consumers using electricity for commercial or industrial purposes. Therefore, when there is a revision of tariff rates, the percentage of increase will and can vary from category to category. If the aforesaid interpretation is applied by holding that in no case, the increase can be more than 17%, and if in regard to some categories, increases are to be nominal, it will be impossible to achieve a 17% increase which is permitted and contemplated under clause (9.1). Further, the words `on average' would be rendered meaningless if by average 17% increase cannot be achieved and if the increases cannot exceed 17% in any case. This interpretation, if accepted, would also prevent the licensee from creating or carving out any new category of consumers and fix the tariff rate for such category. Therefore this interpretation apart from rendering the words `on average' redundant and meaningless, militates against the provisions of clause (9.1). Re : Interpretation (ii)

19. The appellant, discharging the functions of the state government under the Act, had to ensure that the burden of increase on the agriculturist - consumers, that is those consuming electricity for "irrigation", should be the minimum. Similarly, increase in the tariff rate for electricity consumed by railway traction had to be kept minimal in national economic interest. Similarly, the increase in tariff for residential user should be comparatively lesser than commercial user. At the same time, the appellant had to ensure an increase in its revenue by 17%. If increase beyond 17% was not permissible in regard to any category of consumers, and if some categories had to be subjected to only small increases far below 17%, due to economic or social justice criteria, the appellant would never be able to achieve the increase anything in the range of 17%. Only by adopting the process of applying a higher than 17% increase in the case of some categories of consumers, it can offset the effect of small or marginal increase in the case of some other categories like `irrigation' and `railway traction". Therefore, if appellant chose to charge a lesser increase in percentage to some categories of consumers and higher increases in regard to other categories of consumers, it cannot be found fault with so long as its total revenue does not exceed 17% over the corresponding revenue with reference to the old interim tariff rates. If appellant would have realized `X' amount as revenue at the interim tariff rates which were in force before 21.5.1996, the object of the increase was to provide an increase in revenue by 17% over `X' after 21.5.1996. That is why the word `on average' is used in clause 9.1. This gives the discretion to appellant to charge tariff rates with different increases depending upon the category of consumers, so long as the overall increase in revenue, that is the "charges made" by the licensee, does not exceed 17%. Any other interpretation would render the words `on average' otiose and have the effect of substituting the words tariff rate for the word charges.