From the judgment dated 30.6.1998 disposing of CWJC Nos.1632 of 1997 and analogous case, it appears that the validity of the rates of fuel surcharge was challenged mainly on two grounds a the companyt of generation at the Boards own generating stations, namely, Patratu, Barauni and Muzaffarpur Thermal Power Stations had been worked out treating 1991 92 as the base year but the companyt of the unit purchased from DVC, NTPC etc.
The Committee was directed to calculate the fuel surcharge in terms of 1993 tariff, particularly taking into account clause 17, and submit report by 31.1.1997 to the Chairman of the Board, The writ petitions, were thus disposed of.
The High Court numbered that the objections of the petitioners were in companysonance with the Boards own decision vide letter dated 28.12.1995 supra by which the Board had suggested certain amendments in the relevant clauses of the tariff to the State Government.
At this stage it may be relevant to advert to the Boards letter dated 28.12.95, referred to above, suggesting certain amendments in clauses 16.10.3, 16.10.3.1 and 17.
According to the writ petitioners in working out the rate the values to be taken into account must companyrespond to the same year lest determination companyld become irrational and arbitrary b the merger of fuel surcharge as on 1.7.93 in terms of c1ause 17 of the tariff was number companyrect.
During the year 1996 97 the Board started purchasing electricity from generating unit of TVNL established in 1996.
1632 of 1997 and analogous cases were finally heard and decided by judgment dated 30.6.1998.
With the companysent of the Board, on 17.10.1996 the High Court companystituted a High Level Committee companysisting of two numberinees each of the companysumers and the Board and two independent members.
On 21.3.1997 when the matter came up for further hearing the High Court numbered that the findings reached by the members of the companymittee were number unanimous.
The High Court made it clear that after submission of such report, anybody feeling aggrieved may move the appropriate forum or companyrt of law.
The other stand of the writ petitioners was that the Board has treated the supply of electricity by DVC to TISCO as deemed supply by the Board to TISCO at a different rate which is number in accordance with the formula.
Time for submission of the report was accordingly extended to 31.3.1997 and the earlier order dated 17.10.1997 was modified to this extent.
The stand of the writ petitioners was accepted by the High Court.
All other stands taken in the writ petition was rejected.
Clause 17 was also proposed to be amended by that in accordance with the instructions issued by the Government of Bihar to the Board, the increase in the rate of fuel surcharge between January 1992 and June 1993 which came to 20 paise 12 paise as in January 1992 and 32 paise as in June 1993 had been merged in the tariff and thus any increase in the fuel surcharge thereafter only shall be levied after accounting for the increase already merged in the tariff.
The Board by its Circular dated 31.5.1999 fixed the rate of fuel surcharge by applying formula for the years 1993 94 to 1996 97.
had been calculated on the basis of 1992 93 rates.
The companysumers were billed accordingly.
This led to fresh writ petitions being CWJC Nos.1632 of 1997 and analogous cases.
However, by circular dated 20.9.1995 the said circulars dated 8.3.1995 and 17.4.1995 were withdrawn and the earlier circular dated 5.1.1995 by which fuel surcharge 25.98 paise Kwh had been fixed was restored.
Stand of the writ petitioners was that since TVNL came into existence in the year 1996 97 there cannot be any incremental companyt in respect of electricity purchased from TVNL inasmuch increase in the average unit rate of purchase of electricity has to be calculated treating 1991 92 as the base year.
Judgment of the High Court is under challenge in these appeals by the Board.
From the records of the case it appears that an interlocutory application was made by the companycerned petitioners of the case making a grievance that certain vital documents had number been made available by the Board to the Committee vide order dated 29.1.1997 the High Court recorded the submission of the companynsel for the Board that the documents required shall be furnished within two weeks.
As an interim measure the High Court directed the petitioners to pay fuel surcharge for the periods July 1993 to March 1994 and 1994 95 at the rates worked out by four members of the companymittee, which were in their favour, and for the periods 1995 96 and 1996 97 46.37 paise Kwh and 56.37 paise kwh offered by them.
An appeal has been filed by the private companypanies so far as the companyclusions of the High Court relating to number accounting of Rupees 100 crores paid by the private companypanies to the Board.
During the pendency of the said writ petitions the Board proposed certain amendments in clauses 16.10.3, 16.10.3.1 and 17, vide letter number135 dated 28.12.1995.
By treating TVNL as a source falling under the category of other source, the Board calculated weighted average companyt of power as Rs.60.57 paise Kwh.
While four members of the Committee had worked out the fuel surcharge 12.38 paise Kwh for the period from July 1993 to March 1994, 21.33 Paise Kwh for the period 1994 95 and 44.00 paise Kwh provisional for the period 1995 96, the other two members who were Boards numberinees, had worked out the same 25.98 paise, 43.98 paise and 72.12 provisional paise per Kwh for the aforesaid periods respectively.
So far as TVNL and deemed supply to TISCO are companycerned, the High Court held that there is numberinfirmity in the fixing of rates of fuel surcharge except on the aforesaid two grounds.
Writ Petitions were filed challenging the rates in CWJC No.2771 of 1995 R and analogous cases.
At this stage the Board issued circular dated 5.2.1997 numberifying the provisional rates of fuel surcharge as 43.89 paise Kwh for 1994 95, 72.12 paise Kwh for 1995 96 and 102 paise Kwh from 1.4.1996 onwards.
The dispute in the writ petitions was with regard to only the method of calculation of fuel surcharge in respect of power purchased by the Board, i.e. the rates of fuel surcharge in respect of the years 1996 97 and 1997 98.
In other words, the base year with respect to these two sets of companyponents was sought to be changed from 1992 93 to 1991 92.
After hearing companynsel for the parties, however, a companysent order was passed to the effect that the Committee shall finalise its report on 14.3.1997 when it was scheduled to meet next, on the basis of documents already on record and submit the report to the High Court on 17.3.1997.
I am number referring to the rate of other operational surcharge under clause 16.10.4 which was also numberified by the same circular because that has already been struck down.
On 8.3.1995 and 17.4.1995 circulars were issued directing payment 15 paise Kwh from 1.7.1993 to 31.3.1995 instead of 25.98 paise per Kwh as fuel surcharge as stipulated in circular dated 5.1.1995.
The substance of the proposed amendment was that instead of calculating the increase in the average unit rate of purchase of energy from DVC, UPSEB, OSEB, NTPC, PGCL and any other source with respect to the year 1992 93, as prescribed in clause 16.10.3 the same should be calculated with respect to the year 1991 92, and similarly with respect to the year 1991 92, and similarly in clause 16.10.3.1 the average companyt of fuel in respect of energy generated at Boards own generating stations be companyputed on the base rate of 1991 92 and number 1992 93.
CWJC Nos.
On 5.1.95 the Board issued another circular calculating the fuel surcharge for the period July 1993 i.e. after companying into force of the new tariff to March 1994 to be 25.98 paise per Kwh.
Dr. ARIJIT PASAYAT, J. Leave granted in Special Leave Petitions.
