WARYAM STEEL CASTINGS PVT. LTD.versusPUNJAB STATE POWER CORPORATION LTD. AND ANR.

                            [2017] 8 S.C.R. 134


A                WARYAM STEEL CASTINGS PVT. LTD.
                                      v.
      PUNJAB STATE POWER CORPORATION LTD. AND ANR.
                       (Civil Appeal No. 7856 of 2012)
8                              JUNE 19,2017
              (RANJAN GOGOi AND NAVIN SINHA, JJ.(
          Electricity Act. 2003:
            ss. 2(4). 6i, 62, 63. 64, 86, i JJ and ll 2 - Levy of surcharge
c   on defaulting industries - Legality of- Appellant-companies. arc
    furnace units, established prior to June i 995, drew power from
     JJKV High Tension Supply Line - Circular of State Electricity Board
    mandating all existing as well as prospective consumers. who had
    installed induction furnace units with a load above 1500 KVA. to
D   shift to 66KVfrom 11 KV voltage supply, failing which they were
    required to pay surcharge@ i7.5% - Howeve1; another circular
    dated 81h June, i999 issued by Electricity Board exempting all units
     existing as on 23'J June, i995 from the necessity of conversion to
     66KV as well as levy of i7.5% surcharge - Electricity bills by State
    Power Corporation imposing surcharge on arc .fi1rnaces units
E    established prior to June, 1995 - Writ petitions by appellants.
     dismissed - LPAs by appellants - While the LPAs were pending,
     tariff order issued by Regulatory Commission specifically levying
     surcharge 011 induction Furnace Units - Tariff order challenged
     before Appellate Tribunal for Electricity (APTEL) - Levy ofsurcharge
     held to be justified by APTEL by order dated i 6.07.20i0 - APTEL 5·
F
     order challenged before Supreme Court, which was dismissed vide
     order dated 14'h February 20JJ, thus confirming the levy of
     surcharge - LPAs dismissed by High Court - On appeal, held:
     insofar as the order of High Court dismissing the LPAs filed by
     appellants is concerned, the levy of surcharge has been upheld by
G    Supreme Court by its order dated 14'" February 2011 - Thus, the
     issue with regard to legality and justification for levy of surcharge
     stands foreclosed - Further, the absence of continuation of
     exemption granted vide circular dated 8'" June, i999 in respect of
     pre-i995 industries, in any of the tar(ff ordersfor subsequent years
     i.e. after coming into force of the Electricity Act is a conscious
H
                                     134
  WARYAM STEEL CASTINGS PVT. LTD. v. PUNJAB STATE                      135
            POWER CORPORATION LTD.

 decision of Regulatory Commission with regard to the necessity and A
justifiability of the levy of surcharge on defaulting industries - The
 said reason for levy of surcharge to disincentivize the defaulting
 units being justifiable, cannot be faulted with - No room for any
 other view in the matter - High Court was fully justffied in dismissing
 the writ petitions - Electricity Laws.
                                                                         B
        Surcharge levied on defaulting industries who did not shift
from 11 KV to 66KV voltage supply as mandated by circular issued
 by State Electricity Board - Correctness of quantum/rate of said
 surcharge levied -APTEL vide its order dated 16.07.2010 held the
 levy of surcharge to be justified, but disagreed with the rate of
 surcharge and remanded the matter back to Regulatory Commission C
for deciding the rate of surcharge afresh - Regulatory Commission
 on remand, reduced the rate of surcharge from 17.5% to 10% -
 Held: The Regulatory Commission worked out the appropriate rate
 of surcharge by adding a penal element to the cost of conversion to
 disincentivise the consumers from continuing to receive supply on D
. the 11 KV transmission lines - This being the basis for determination
  of the rate and that too by the expert body which has been further
  upheld by APTEL, no fault can be found with the said exercise.
      ss.61 to 64 - Determination of tariff - Nature of power
exercised - Held: The said power has been consistently held and         E
understood to be statutory, required to be exercised within the four
corners of the relevant provisions of the 2003 Act.
       Words and Phrases - 'Surcharge' - Meaning of - Explained.
       Dismissing the appeals, the Court
                                                                        F
      HELD: 1. Insofar as the order of the High Court dismissing
the Letter Patent Appeals filed by the industrial establishments
is concerned, the matter should not detain the Court. Not only
the levy of surcharge was upheld by this Court by order dated
141h February 2011, though for the year 2009-2010, what stares
at the face of the record is the consistent view taken by the           G
Regulatory Commission in all the tariff orders commencing from
the year 2004-2005, that to offset the transmission and all other
losses and other incidental charges incurred in enabling the
Induction Furnace Units to draw power at 11 KV supply without
switching over to 66 KV supply line, levy of surcharge on such          H
136          SUPREME COURT REPORTS                    [2017] 8 S.C.R.


A consumers is necessary. The "compromise" and "concession"
  made and effected by issuing circular dated Sth June, 1999 must
  be understood to have come to an end with the introduction of
  the new electricity regime by the 2003 Act unless extension of
  the same had been explicitly made/recognized in any of the tariff
B orders, which fact was conspicuously absent. The absence of
  continuation of the said concession made by the Government in
  respect of pre-1995 industries in any of the tariff orders for the
  subsequent years i.e. after coming into force of the Act was a
  conscious decision of the Regulatory Commission with regard to
  the necessity and justifiability of the levy of surcharge on the
C defaulting industries. The reason for levy of surcharge being
  justifiable on the ·touchstone of the necessity to disincentivize
  the defaulting units cannot be faulted. The exercise being statutory
  and being clear and unambiguous as manifested by the tariff order,
  there is little room for taking any other view in the matter except
  to hold that the High Court was fully justified in dismissing the
0
  writ petitions. In fact, from another perspective, the issue with
   regard to legality and justification for levy of surcharge stood
  foreclosed by the order of this Court dated 14th February, 2011.
   [Para 201 [146-C-HJ
          2. The Regulatory Commission had, on remand, by its order
 E dated 19th January, 2011 reduced the rate of surcharge from 17.5%
   to 10%. The industrial establishments in the appeals before the
   Appellate Tribunal contended that the said rate is without
   justification inasmuch as the State Regulatory Commission in its
   order had unambiguously noticed that the cost to the consumers
 F to switch over to the 66 KV supply would correspond to a much
   lower amount than what would work out on the basis of the rate
   of surcharge levied as detailed in paragraph 8 of the order of the
   State Regulatory Commission dated 19th January, 2011. However,
   a reading of the entire paragraph 8 of the said order of the State
   Regulatory Commission would go to show that the State
 G Commission thought it proper to work out the appropriate rate
   of surcharge by adding a penal element to the cost of conversion
   to disincentivise the consumers from continuing to receive supply
   on the 11 KV transmission lines. It is on the aforesaid basis that
    an additional input had been added to the cost of conversion to
 H work out the rate of surcharge as determined in the order dated
  WARYAM STEEL CASTINGS PVT. LTD. v. PUNJAB STATE                      137
            POWER CORPORATION LTD.

19'h January, 2011. If the aforesaid is the basis for determination A
of the rate and that too by the Expert Body which has been upheld
by the Appellate Tribunal no fault can be found with the said
exercise. In this regard note is taken of the fact that though
under the Act of 2003 "surcharge" is not specifically defined, the
said expression stands "for an additional/extra charge ... B
surcharge is thus a super added charge, a charge over and above
the usual or current dues ... it is in substance an addition to the
stipulated rate of tariff." !Para 23) 1149-8-HJ
        Mis Bisra Stone Lime Co. Ltd. v. Orissa State Electricity
        Board and Am: AIR 1976 SC 127 : 11976) 2 SCR 307
        - held applicable.                                             c
        Transmission Corporation of Andhra Pradesh Ltd. and
        Am: v. Sai Renewable Power Private Ltd. and Ors.
        (2011) 11 SCC 34 : (20101 8 SCR 636 - relied on.
                          Case Law Reference                           D
(2010) 8 SCR 636                  relied on               Para 22
11976] 2 SCR 307                  held applicable         Para 23
     CIVIL APPELLATE JURISDICTION :Civil Appeal No. 7856
of2012.
                                                                       E
      From the Order dated 27.07.2012 of the Appellate Tribunal for
Electricity (APTEL) in Appeal No. 198 of2011
                                 WITH
        C. A. Nos. 6625-6626, 6289-6290, 6291-6292, 6276 and 6269 of
2013.                                                                  F
      Jaideep Gupta, Ms. Meenakshi Arora, Sr. Advs., Buddy
Ranganathan, Mohit D. Ram, Ms. Monisha Handa, Tajinder Joshi,
Chandan Kaushal, Subhasish Bhwomick, Ms. Shikha Ohri, Piyush Singh,
Ms. Sharmila Upadhyay, Ms. Shikha Ohri, Piyush Singh, Ms. Divya
Roy, Himanshu Shekhar, Advs. for the Appellants.                       G
      V. Giri, Sr. Adv., Anand K. Ganesan, Ms. Neha Garg, Manav
Vohra, Ms. Naresh Bakshi, Satinder S. Gulati, Mrs. Kamaldeep Gulati,
Rakesh Kumar and Ms. Anuradha Muthatkar, Advs. for the
Respondents.
                                                                       H
138             SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A           The Judgment of the Court was deliven:d by
        RANJAN GOGOi, J. I. The appellant-companies are arc
  furnace industries engaged in the manufacture of steel ingots. The very
  nature of the operations carried out require the appellants to draw heavy
  load of electrical power i.e. above 2500 KVA. The said connections are,
B accordingly, categorized as "Industrial Connections".
             2. The appellants who were all established prior to June 1995
      draw power from 11 KV High Tension Supply Line. Electricity in the
      State of Punjab, where the industrial units are located, are supplied through
      different kinds of voltage supply system i.e. (i) low tension (LT) at 440
c     volt- normally fed to domestic, small power or medium supply electric
      connection below I00 KW; (ii) high tension (HT) at 11,000 voltage ( 11
      KV) to large supply industrial connections; and (iii) extra high tension
      (EHT) at 66,000 voltage (66 KV) - suppfo:d to very big industrial
      consumers for whom a dedicated 66 KV line directly from sub-Station
      of the Board is provided.
D
          3. A circular dated 23'd June, 1995 was issued by the Punjab
  State Electricity Board (hereinafter referred to as "the Board") mandating
  alt existing as well as prospective consumers, who had installed induction .
  furnace units with a load above 1500 KVA, to shift to 66 KVA voltage
  supply failing which they were required to pay surcharge at the rate of
E 17.5%. All the appellants received due notice for conversion of their
  voltage supply from 11 KV to 66 KV on or before 31 '' December, 1996.
  On receipt of such notices, the Induction Furnace Industries Association
  of the State of Punjab took up tht: matter with tht: State Government and
  on the advice of the High Powered Committee constituted,
F recommendations were made to the effect that all units existing as on
  23n1 June, 1995 should be exempted from the necessity of conversion to
  66 KV as well as levy of 17 .5% surcharge.
          4. The aforesaid recommendations of the Committee (made in its
   meeting held on l 9'h January, 1999) were accepted by the Board and a
 G commercial circular bearing No.25/ 1999 dated 8'h June, 1999 was issued
   to the following effect.
              "3. To resolve the issue, a Committee comprising of officers of
              PSEB and representatives of Public & Industry, was constituted
              on the intervention of State Government. The committee was
              asked to study the grievances of Induction Furnace Industry in
 H
   WARYAM STEEL CASTINGS PVT. LTD. v. PUNJAB STATE                               139
     POWER CORPORATION LTD. [RANJAN GOGOi, J.]

        details and give its recommendations acceptable to both PSEB A
        and Industry. Accordingly, the committee went into this issue in
        detail and has submitted the following recommendations to PSEB,
        which have now been accepted by the Board.
         OBoard may not insist to levy 17 .5% surcharge for non-conversion
         by the consumers as existing in 6195 and also by those consumers        B
         who were released connections at 11 KV with an undertaking to
         pay 17 .5% surcharge after 6/95.
         ii) The 17 .5% surcharge already billed and the late payment
         surcharge already levied w.e.f. 1.1.97 may be written back.
         Wherever certain consumers have deposited this surcharge, the           c
         same may be refunded through subsequent energy bills.
         iii) All future connections above 1500 KVA/2500KW shall be at
         66 KV only. However, where feasibility at 11 KV has already
         been given before 3/97, the same need not be reviewed. (This
         para has been corrected vide CC No.30199)"                    D
          5. The Electricity Act, 2003 (hereinafter referred to as "2003
  Act") came into force with effect from l01h June, 2003. The object of
. the 2003 Act, inter alia, is to protect the interests of consumers and
  rationalize electricity tariff. Part VII of the 2003 Act deals with 'tariff'.
  Specifically, Section 61 of the 2003 Act contained in Part VII thereof E
  provides that "the Appropriate Commission" shall specify the terms and
  conditions for the determination of tariff and while doing so the
  Appropriate Commission shall be guided by the principles mentioned in
  the said Section. Section 62 of the 2003 Act deals with determination of
  tariff and is in the following terms:
                                                                                F
            "62. Determination oftariff:-(1) The Appropriate Commission
            shall determine the tariff in accordance with the provisions of
            this Act for -
           (a) supply of electricity by a generating company to a distribution
           licensee:
                                                                                 G
             Provided that the Appropriate Commission may, in case of
           shortage of supply of electricity, fix the minimum and maximum
           ceiling of tariff for sale or purchase of electricity in pursuance
           of an agreement, entered into between a generating company
                                                                                 H
140   SUPREME COURT REPORTS                          [2017] 8 S.C.R.


A     and a licensee or between licensees, for a period not exceeding
      one year to ensure reasonable prices of electricity;
      (b) transmission of electricity ;
      (c) wheeling of electricity;
      (d) retail sale of electricity:
B
          Provided that in case of distribution of electricity in the
      same area by two or more distribution licensees, the
      Appropriate Commission may, for promoting competition among
      distribution licensees, fix only maximum ceiling of tariff for
      retail sale of electricity.
c         (2) The Appropriate Commission may require a licensee
      or a generating company to furnish separate details, as may be
      specified in respect of generation, transmission and distribution
      for determination of tariff.
          (3) The Appropriate Commission shall not, while
D     determining the tariff under this Act, show undue preference
      to any consumer of electricity but may differentiate according
      to the consumer's load factor, power factor, voltage, total
      consumption of electricity during any specified period or the
      time at which the supply is required or the geographical position
 E    of any area, the nature of supply and the purpose for which
      the supply is required.
          (4) No tariff or part of any tariff may ordinarily be amended,
      more frequently than once in any financial year, except in
      respect of any changes expressly permitted under the terms
 F    of any fuel surcharge formula as may be specified.
          (5) The Commission may require a licensee or a generating
      company to comply with such procedures as may be specified
      for calculating the expected revenues from the tariff and
      charges which he or it is permitted to recover.
 G         (6) If any licensee .or a generating company recovers a
      price or charge exceeding the tariff determined under this
      section, the excess amount shall be recoverable by the person
      who has paid such price or charge along with interest equivalent
      to the bank rate without prejudice to any other liability incurred
      by the licensee.
 H
  WARYAM STEEL CASTINGS PVT. LTD. v. PUNJAB STATE                          141
    POWER CORPORATION LTD. [RANJAN GOGOi, J.]

       6. Under Section 2(4) of the 2003 Act "Appropriate Commission" A
is defined in the following terms:                  '
       "Appropriate Commission" means the Central Regulatory
       Commission referred to in sub-section (1) of section 76 or the
       State Regulatory Commission referred to in section 82 or the
       Joillt Commission referred to in section 83, as the case may be.    B
      Section 86 of the 2003 Act defines the functions of the "State
Commission" which, inter alia, includes determination of tariff for
generation, supply, transmission and wheeling of electricity, wholesale,
bulk or retail, as the case may be, within the State.
       Under Section 111 of the 2003 Act an order passed by any of the C
Adjudicating Authority under the 2003 Act including an order made by
"the Appropriate Commission" is appellable to the Appellate Tribunal
for Electricity constituted under Section 112 thereof.
       7. Though it may not be necessary to notice in any detail the
views expressed by this Court, from time to time, with regard to the D
nature of power exercised in determining tariff under the Act of2003,
all that would require a mention is that the said power has been
consistently held and understood by this Court to be statutory, required
to be exercised within the four comers of the relevant provisions of the
2003 Act i.e. Sections 62 to 64 and in accordance with the prinCiples laid E
down in Section 61 thereof.
        8. Prior to coming into force of the 2003 Act with effect from
lO'h June, 2003 the Punjab State Electricity Regulatory Commission
established under the Electricity Regulatory Commission Act, 1998 (since
repealed by the 2003 Act) had issued a tariff order for the year 2003- F
2004 on an application made by the Licensee Board for determination of
tariff for the said year. In the tariff proposals, the Board, inter alia,
proposed to levy surcharge at the rate of 17 .5% from Induction Furnace
Units who had not shifted to 66 KV voltage supply and to whom exemption
from payment of such surcharge had been earlier granted by circular
No.25/99 dated 8th June, 1999. In the course of the deliberations leading G
to the final determination/ fixation of tariff, the North India Induction
Furnace Association was heard in the mater and the reliance placed by
the Association on the above circular No.25/99 dated 81hJune, 1999 was
 taken note of along with the fad that the Board in its reply dated 171h
March, 2003 had admitted that such exemption was allowable and that it H
142          SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A (the Board) did not press its proposal to levy surcharge at the rate of
  17 .5% from Induction Furnace Units which were in operation on the
  relevant cut-off date i.e. 23'd June 1995.
        9. After the coming into force of the 2003 Act, for the year 2004-
  2005 the State Commission announced and published its tariff order dated
B 301h November, 2004 which contained provisions with regard to the
  aforesaid surcharge in paragraph 9.11 thereof in the following terms:
           "9.11 17.5% SURCHARGE FOR 11 KV ARCIJNDUCTJON
              FURNACE CONSUMERS
             Some Industrial Consumers Associations have objected to the
c            proposal of PSEB to levy 17 .5% surcharge on induction furnace
             consumers catered supply at 11 KV especially when tariff has
             been fixed at 11 KV.
             As per present policy, all Large Supply consumers except arc
             furnaces with contract demand exceeding 2500 KVA and upto
D            4000 KVA can be catered at 11 KV provided they are ready
             to compensate for transformation losses, incremental line losses
             and service charges incurred in this regard. For this purpose,
             energy recorded at 11 KV is enhanced by 10% for billing
             purposes. For all arc furnace consumers and other consumers
E            having demand above 4000 KVA which are given supply 11
             KV, surcharge@ 17.5% is leviable.
              The Board in its reply has stated that the tariffs for various
              categories are worked out at a base voltage level for each
              category. The rebate/surcharge is offered to incentivize/
              penalize the consumer for shifting from the base voltage to
 F
              higher/lower voltage, keeping in view the additional
              transformation cost, transformation losses and line losses saved/
              incurred by the Board by such shifting. Hence the energy
              recorded at 11 KV is to be enhanced by 10% for consumers
              with demand exceeding 2500 KVA & upto 4000 KVA (except
 G            arc furnaces) to cover for transmission losses, incremental line
              losses and service charges. It has been further stated by the
              Board that surcharge @ 17 .5% shall be leviable on a)l arc
              furnace consumers above 2500 KVA and other consumers with
              Contract Demand exceeding 4000 KVA catered supply at 11
              KV. It has also been stated that surcharge@ 17.5% is levied
 H
  WARYAM STEEL CASTINGS PVT. LTD. v. PUNJAB STATE                              143
    POWER CORPORATION LTD. [RANJAN GOGOi, J.]

         on arc furnace consumers catered supply at 11 KV since last A
         30 years.
         The Commission notes that Large Supply Consumers with bulk
         demand are required to be catered supply at 33 KV or higher
         voltage. Where they are allowed to avail supply at lower than
         permitted voltage, the same involves number of costs to the           B
         Board by way of setting up sub-station and its operation and
         maintenance. It also involves additional line losses and
         transformation losses for the Board. As such, these consumers
         are definitely liable to pay.
         The Commission, therefore, decides to uphold the version of           c
         PSEB and continue levy of surcharge."
      10. For the year 2005-2006, the Board in its proposal took the
following plea in respect of Arc Furnace consumers:
     "(ii) For Large Supply consumers except Arc Furnaces having
          contract demand exceeding 2500 KVA and upto 4000 KVA D
          catered at 11 KV, the energy consumption is enhanced by l 0%
          to cover for transformation losses, incremental line losses and
          service charges. 17 .5% surcharge is leviable on all Arc Furnace
          consumers and other Large Supply consumers having contract
          demand above 4000 KVA and catered at 11 KV."                     E
       11. The State Commission by its tariff order dated 14'11 June, 2005
for the year 2005-2006 decided as follows:
        "The Commission directs the Board to submit a comprehensive
        proposal bringing out all the aspects of the matter and the proposal
        should also include revenue implications. The proposal should           F
        be submitted along with next ARR for 2006-07. Meanwhile the
        Commission decides to continue the existing system."
        12. A similar decision was taken by the State Commission in the
tariff order dated 1O'h May, 2006 for the year 2006-2007 by holding that
it would be appropriate "to contint1e with existing provisions ofrebates       G
and surcharges for availing supply at different voltages".
       13. Thereafter, it appears that on l 8'h May, 2006, the North India
Induction Furnace Association had moved the State Power Corporation
against the levy of surcharge on all Arc Furnace consumers drawing
electrical power exceeding 2500 KVA on 11 KV Supply Line. The H
144           SUPREME COURT REPORTS                          [2017] 8 S.C.R.


A Power Corporation on 27th June, 2006 had advised the said Association
  to agitate the issue before the Electricity Regulatory Commission.
  Accordingly, a review petition was filed by the said Association before
  the Electricity Regulatory Commission seeking review of the tariff order
  of 2006-2007, which came to be dismissed on l 3'h October, 2006.
B         14. Thereafter, it appears that the State Power Corporation issued
  electricity bills for April 2007 and had imposed surcharge onArc Furnaces
  established prior to June 1995. Challenging the same, writ Petitions were
  filed by aggrieved industries before the High Court of Punjab and Haryana.
  While the said writ petitions were pending, the Regulatory Commission
  had passed its tariff order dated l 7'h September, 2007 for the year 2007-
C 2008 and pursuant thereto a circular bearing No.66/2007 dated 28'11
  November, 2007 was issued seeking to recover electricity surcharge
  from the concerned establishments for the financial years 2004-2005,
  2005-2006 and 2006-2007. The aforesaid subsequent events were
  brought on record in the writ petitions before the High Court by means
D of amendments thereto.
         15. A learned single judge of the High Court by order dated z7ni
  April, 2009 dismissed the writ petitions filed by the arc furnace industries,
  inter alia, on the ground that after the 2003 Act had come into force
  with effect from 101hJune, 2003 fixation of tariff assumed the character
E of a statutory exercise to be performed by the Regulatory Commi.ssion
  on the basis of the principles and parameters laid down in the 2003 Act.
  As such, the "concession" made by the Government culminating in
  circular No.25/99 dated 81h June, 1999 would cease to have any legal
  effect unless specifically acknowledged by the Regulatory Commission
  which the Commission had not done. The High Court also took the view
F that the circular No.25/99 dated 81h June, 1999 cannot operate as an
  estoppel against the provisions of the 2003 Act and the exercise of power
  thereunder by the Regulatory Commission to determine and fix the tariff.
  In this regard, the High Court also specifically took note of the fact that
  the arc furnace industries i.e. the writ petitioners before it had not
G challenged any of the tariff orders levying or reiterating the levy of
  surcharge and what was challenged before it were only the bills levying
  surcharge as raised by the Board/Power Corporation, as may be.
         16. The aforesaid order of the learned single judge of the High
   Court dated 27'11 April, 2009 was challenged by the industries before the
 H Division Bench of the High Court by means of several Letter Patent
    WARYAM STEEL CASTINGS PVT. LTD. v. PUNJAB STATE                              145
      POWER CORPORATION LTD. [RANJAN GOGOi, J.]

  Appeals. While the aforesaid Letter Patent Appeals were pending before         A
  the High Court another significant development took place, namely, the
  issuance of the tariff order dated 8'h September, 2009 for the year 2009-
  2010 specifically reiterating and levying the surcharge on Induction
  Furnace Units. The tariff order for the year 2009-2010 was challenged
  by the concerned industrial establishments before the Appellate Tribunal       B
  for Electricity (hereinafter referred to as "Appellate Tribunal"). The
  aforesaid challenge made was answered by the Appellate Tribunal IJy
  its order dated 16'11 July, 2010 by holding that the levy of surcharge being
· compensatory in nature is fully justified. The transmission losses and
   other charges that are,incurred by the Board in providing power at the
   required load (above 2500 KVA) to induction furnace units from al lKV         C
   supply line has to be recovered from a defaulting unit (one which had
   not migrated to the mandatory 66 KV supply line). However the learned
   appellate Tribunal disagreed with the State Regulatory Commission on
   the rate thereof i.e. 10% and 17.5% respectively for non-induction (large
   consumer) and induction furnace units. The learned Appellate Tribunal         D
   by its aforesaid order dated 16'h July, 2010, therefore, remanded the
   matter to the State Commission for a fresh decision on the rate/quantum
    of the surcharge leviable.
        17. Though the order dated 16'h July, 2010 of the learned Appellate
  Tribunal was challenged before this Court in Civil Appeal No. l 0889 of
  2010, no interim relief was granted to the appellants by this Court. E
  Consequently, on 19'h January, 2011, the Punjab State Electricity
  Regulatory Commission, on consideration of the matter on remand, had
  passed its orders reducing the surcharge from 10% and 17.5% to 7%
  and 10% respectively.
         18. On 14'h February, 2011, Civil Appeal No.10889 of2010 filed F
  against the orderofthe learned Appellate Tribunal dated 16'h July, 2010
  was dismissed by this Court thereby confirming the levy of surcharge.
  On 9'h September, 2011 the Division Bench of the High Court of the
  Punjab and Haryana also dismissed the Letter Patent Appeals filed by
  the industrial establishments. By its Order dated 27tJi July, 2012 the learned G
  Appellate Tribunal had dismissed the appeal filed by the industrial
  establishments against the order dated 19'h January, 2011 of the
  Regulatory Commission with regard to the reduced rate/quantum of
  surcharge i.e. 7% and 10% respectively, as already noticed.
         19. It is challenging the common order of the High Court dated 9ili H
146             SUPREME COURT REPORTS                            [2017] 8 S.C.R.


A September, 201 I dismissing the Letters Patent Appeals filed by the
  industrial establishments that civil Appeal Nos.6269 of 2013, 6276 of
  2013, 6289-6290 of2013, 6291-6292 of2013 and 6625-6626 of2013
  have been filed whereas challenging the order of the learned Appellate
  Tribunal with regard to quantum/rate of surcharge re-determined by the
  Regulatory Commission Civil Appeal No. 7856 of 2012 has been filed. It
8
  is the correctness of the aforesaid two orders that would require to be
  determined in the present group of appeals.
              20. Insofar as the order of the High Court dismissing the Letter
      Patent Appeals filed by the industrial establishments is concerned the
      matter should not detain the Court. Not only the levy of surcharge has
C     been upheld by this Court by dismissal of Civil Appeal No. I0889 of
      2010, though for the year 2009-2010, what stares at the face of the
      record is the consistent view taken by the Regulatory Commission in all
      the tariff orders commencing from the year 2004-2005, that to offset the
      transmission and all other losses and other incidental charges incurred in
D     enabling the Induction Furnace Units to draw power at 11 KV supply
      without switching over to 66 KV supply line, levy of surcharge on such
      consumers is necessary. The "compromise" and "concession" made
      and effected by issuing circular No.25/99 dated 81h June, 1999 must be
      understood to have come to an end with the introduction of the new
      electricity regime by the 2003 Act unless extension of the same has
E     been explicitly made/recognized in any of the tariff orders, which fact is
      conspicuously absent. The absence of continuation of the said concession
      made by the Government in respect of pre-1995 industries in any of the
      tariff orders for the subsequent years i.e. after coming into force of the
      Act is a conscious decision of the Regulatory Commission with regard
F     to the necessity and justifiability of the levy of surcharge on the defaulting
      industries. The reason for levy of surcharge being justifiable on the
      touchstone of the necessity to disincentivize the defaulting units cannot
      be faulted. The exercise being statutory and being clear and unambiguous
      as manifested by the tariff order, noticed and extracted above, there will
      be little room for taking any other view in the matter except to hold that
G     the High Court was fully justified in dismissing the writ petitions. In fact,
      from another perspective, it can very well be said that the issue with
      regard to legality and justification for levy of surcharge stands foreclosed
      by the order of this Court dated 14th February, 2011 dismissing the Civil
      Appeal No. I 0889 of 20 I0 filed in the circumstances already noticed.
H
     WARYAM STEEL CASTINGS PVT. LTD. v. PUNJAB STATE                         147
       POWER CORPORATION LTD. [RANJAN GOGOI, J.]

      21. This will bring the Court to a consideration of the other limb of A
the case, namely, the correctness of the quantum/rate of surcharge as
determined by the Regulatory Commission and upheld by the learned
Appellate Tribunal.
       22. The nature of the power under the Act of 2003 and the scope
of interference with orders passed by the statutory/ appellate authorities   B
thereunder has been dealt with by this Court irt Transmission Corporation
of Andhra Pradesh Ltd. and Anr. vs. Sai Renewable Power Private Ltd.
and Ors. 1, The view expressed in paras 36 to 40 of the report in the said
case, quoted below, may require to be specifically noticed.
          "36. Fixation of tariff is, primarily, a function to be performed by c
        -the statutory authority in furtherance to the provisions of the
          relevant laws. We have already noticed that fixation of tariff is a
          statutory function as specified under the provisions of the Reform
          Act, 1998; the Electricity Regulatory Commissions Act, 1998
          and the Electricity Act, 2003. These functions are required to be
          performed by the expert bodies to whom the job is assigned D
          under the law. For example, Section 62 of the Electricity Act,
          2003 requires an appropriate Commission to determine the tariff
          in accordance with the provisions of the Act. The Regulatory
          Commission has been constituted and notified under the provisions
          of Section 3 read with Section 11 of the ReformAct, 1998 which E
          in terms of Sections ll(l)(c) and (e) is expected to fix the tariff
          as well as the terms of licence.
          37. There are three different legislations in course and the
          Regulatory Commission has been constituted under the Reform
          Act, 1998 which in tum would be the Commission as contemplated F
          under the Electricity Regulatory Commission Act, 1998 and the
          Electricity Act, 2003. In terms of first proviso to Section 82(1) of
          the Electricity Act, 2003 the State Electricity Regulatory
          Commission established by the State Government under Section
          17 of the Electricity Regulatory Commission Act, 1998 and the
          enactment specified in the Schedule shall be the State Commission G
          for the purposes of this Act. Even in terms of Section 185(3) of
          the Electricity Act, 2003 the said authority would be deemed to
          be an appropriate Commission for all purposes and intent as the

1
    (2011) 11 sec 34
                                                                              H
148    SUPREME COURT REPORTS                              [2017] 8 S.C.R.


A     Reform Act, 1998 has been specifically mentioned in Entry 3 of
      the Schedule to the Electricity Act, 2003. In other words, as
      already noticed the Regulatory Commission constituted by the
      said notification would be the appropriate Commission under all
      these Acts and is required to perform the functions as
      contemplated under Sections 11, 17 and 82 of the respective
B
      Acts.
      38. The functions assigned to the Regulatory Commission are
      wide enough to specifically impose an obligation on the Regulatory
      Commission to determine the tariff. The specialised performance
      of functions that are assigned to the Regulatory Commission
 c    can hardly be assumed by any other authority and particularly,
      the courts in exercise of their judicial discretion. The Tribunal
      constituted under the provisions of the Electricity Act, 2003, again
      being a specialised body, is expected to examine such issues, but
      this Court in exercise of its powers under Article 136 of the
 D    Constitution would not sit as an appellate authority over the
      formation of opinion and determination of tariff by the specialised
      bodies. We would prefer to leave this question open to be
      considered by the appropriate authority at the appropriate stage.
      39. We do not consider it appropriate to go into the merit or
 E    demerit of determination of tariff rates in the appeals.
      Determination of tariff is a function assigned legislatively to a
      competent forum/authority. Whether it is by exercise oflegislative
      or subordinate legislative power or a policy decision, ifthe Act
      so requires, ~mt it generally falls in the domain oflegislative activity
      and the courts refrain from adverting into this arena.
 F
      40. We have to further examine the legality of this issue in the
      light of the findings that we have recorded on the issues in relation
      to jurisdiction of the Regulatory Commission to determine/review
      the tariff. The jurisdiction of this Court is limited in this aspect.
      This Court has consistently taken the view that it would not be
 G    proper for the Court to examine the fixation of tariff rates or its
      revision as these matters are policy matters outside the preview
      of judicial intervention. The only explanation for judicial
      intervention in tariff fixation/revision is where the person
      aggrieved can show that the tariff fixation was illegal. arbitrary
 H    or ultra vires the Act. It would be termed as illegal if statutorily
  WARYAM STEEL CASTINGS PVT. LTD. v. PUNJAB STATE                         149
    POWER CORPORATION LTD. [RANJAN GOGOi, J.]

       prescribed procedure is not folfowed or it is so perverse and A
       arbitrary that it hurts the judicial conscience of the court making
       it necessary for the court to intervene. Even in these cases the
       scope of jurisdiction is a very limited one."
                                                  (Underlining is ours)
        23. In this regard, it has already been noticed that the Regulatory B
Commission had, on remand, by its order dated 19'h January, 2011 reduced -
the rate of surcharge from 10% and 17 .5% respectively to 7% and 10%
respectively. The industrial establishments in the appeals before the
learned Appellate Tribunal contended that the said rate is without
justification inasmuch as the State Regulatory Commission in its order c
had unambiguously noticed that the cost to the consumers to switch
over to the 66 KV supply would correspond to a much lower amount
than what would work out on the basis of the rate of surcharge levied,
details of which are available in paragraph 8 of the order of the State
Regulatory Commission dated l 9'h January, 2011. However, a reading
 of the entire paragraph 8 of the said order of the State Regulatory D
 Commission would go to show that the State Commission thought it
 proper to work out the appropriate rate of surcharge by adding a penal
 element to the cost of conversion to disincentivise the consumers from
 continuing to receive supply on the 11 KV transmission lines. It is on the
 aforesaid basis that an additional input had been added to the cost of E
 conversion to work out the rate of surcharge as determined in the order
 date_d l 9'h January, 2011. lf the aforesaid is the basis for determination
 of the rate and that too by the Expert Body which has been upheld by
 the learned Appellate Tribunal we can find no fault with the said exercise.
 In this regard we may take note of the fact that though under the Act of
 2003 "surcharge" is not specifically defined, the said expression stands F
 "for an additional/extra charge ... surcharge is thus a super added charge,
 a charge over and above the usual or current dues ... it is in substance
 an addition to the stipulated rate of tariff." The above observations made
 in the context of the provisions of the Electricity (Supply) Act, 1948 in
 Mis Bisra Stone Lime Co. Ltd. vs. Orissa State Electricity Board and G
 Anr. 2, would be squarely applicable to the present case to dismiss all
 speculations with regard to the nature of the levy (surcharge) and the
 power of the Commission to impose the same at particular rate(s) as
 may be determined.
'AIR 1976 SC 127                                                          H
150             SUPREME COURT REPORTS                     [2017] 8 S.C.R.


A        24. For the aforesaid reasons, we do not find any merit in the
  appeals filed against the order of the High Court as well as the order of
  the learned Appellate Tribunal. We, therefore, affirm the order of the
  High Court dated 9th September, 2011 as well as the order of the learned
  Appellate Tribunal dated 271h July, 2012 and dismiss both set of appeals
B leaving the parties to bear their own costs.


      Divya Pandey                                         Appeals dismissed.