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Judgment
Radhakrishna Rao, J.—The point involved in all these writ petitions is the same and hence they can be disposed of by common order.
The petitioners are all Private and Public Limited Companies having their factories at various places in Andhra Pradesh and they are consumers of electrical energy being supplied by the Andhra Pradesh State Electricity Board (''the Board'' for short). The petitioners in all these writ petitions challenge the action of the Board in negativing their request for the supply of additional load to their respective industries.
Due to failure of monsoon affecting the generation of power on the one hand and the steep increase in the demand by way of giving connection to new industries on the other, put the State Electricity Board in crisis creating a gap between the demand and the generation. In view of this precarious power position, the Board in consultation with the Industries Department of the State Government had identified certain industries, which require higher capital investment by the Board and which create very low employment potential compared to the other labour intensive industries like textiles etc. Accordingly, in consultation with the State Government, the Board prepared a negative list of 12 industries which are not entitled to be given feasibility certificates either for the new loads or additional loads. This decision of the Board was given wide publicity through press reports published by prominent daily news papers. Individual letters have been addressed to the petitioners-Industries stating that their industries fell under the categories of negative list of industries with inadequate social returns and hence their requisition for supply of additional load cannot be acceded to.
It is this action of the Board that is challenged by the petitioners on the ground that the Board is under an absolute obligation to supply energy as per the requisition and it had no right to reject the requisition on any ground much less on the ground of inadequate social return. Further, it is the contention of the petitioners that if there is a gap between the demand and requirement, it shall be open to the Board to impose restrictions on use of power but it had no right to reject the requistion. The petitioners also questioned the validity of the constitution of the Standing Committee.
The Board in its counter stated that on receipt of the application of the petitioners for additional load called for certain information and on receipt of the information it was found that the petitioners-Industries are included among the 12 specified categories of industries in respect of which the Board has taken a decision not to issue feasibility certificate for new loads/additional loads. The Board submits that he has noted with concern the fact that while already there is a shortage of power by 300 to 400 MW, there is an increase of connected load by over 800 MV per year. The Board further took note of the fact that it would be able to add only about 300 MW from the 2 sources i.e., 210 MW from Vijayawada and 66 MW from gas based power stations during the year 1989-90. The Board further submits that the 13th Annual Power Survey issued by Central Electricity Authority had estimated the deficit in the load and energy till the year 1994-95. According to the said statement the deficit is on the increase year after year and by 1994-95 the deficit is estimated at 1553 MW in respect of load and 12781 MKwh in respect of energy. In view of this the Board had decided to place a check on the growth of the demand. Accordingly, the Board in consultation with the State Government prepared a negative list of 12 industries which are not entitled to be given feasibility certificates either for new loads or additional loads. The Board however decided that supply to the industries, in respect of which load approval was already given and for those industries to which feasibility certificate was already given, release of supply will be considered by the Standing Committee on a case by case basis. The Standing Committee which met on 19-3-1990 reiterated this decision of the Board and is disposing of the applications for release of the power in accordance with the policy of the Board. Therefore, the respondent Board denied the contention of the petitioners that the decision to impose ban on the 12 categories of the industries is taken by the Standing Committee.
It is also stated by the respondents that the Board is constituted among other things for the purpose of generating and supplying electricity in the most efficient and economical manner. The Board for this purpose is empowered to supply electricity to any person not being a licencee, upon such terms and conditions as the Board thinks fit. The Board is also empowered to lay down principles governing the supply of electricity to person other than licencees. The respondents further submit that any additional power given to power intensive industries can only be at the cost of the other consumers. According to the respondents, the Board is entitled to regulate the supply having regard to nature of supply and the purpose for which it is required. The classification made by the Board, it is stated, in the inclusion of 12 categories of industries in the negative list is in consonance with the duties placed on the Board by the Electricity Supply Act, and the Board has got power to take the impugned decision under Sections 49 and 79 (j) of the Electricity Supply Act.
Sri B. Adinarayana Rao, the learned Counsel for the petitioners-Industries, contends that under Clause (VI) of the Schedule to the Indian Electricity Act, 1910 the State Electricity Board is bound to supply the energy within one month from the date of requisition subject to the fulfilment of conditions mentioned therein and the classification made by the Board in including these petitioners-Industries under the 12 industries which had been identified as those which do not have adequate social return for supply of power, is irrational and unreasonable.
On the other hand, the learned Standing Counsel for the Board submits that under the Electricity (Supply) Act, 1948 in particular under Sections 49 and 79(j) the Board has got power to regulate the supply and under the guise of the power to regulate the supply, the Board has made a reasonable classification with regard to the supply of power to the petitioners-Industries duly taking into account the availability of power and the demand by the consumers.
An office note has been prepared by the Board regarding the supply of power to intensive Industries. It is stated in the said ''note'' that the Industries department has earlier classified 13 industries as Units falling under negative list. This list is inclusive of Cement Industry also. Since cement industry is not considered by the Board as negative, it is proposed to follow the guidelines given therein as suggested by the Principal Secretary, EFES & T Department in respect of the other Units classified by Industries Department as negative list, which are :
Calcium Carbide.
Silicon Carbide.
Sodium Metal.
Ferro Alloys.
Caustic Soda.
Mini Steel Plants.
Cold Rolled Steels.
Castings.
Steel Tubes and Pipes.
Wire Drawing.
Re-rolling.
Sponge-Iron.
The guidelines to be followed as per the ''note'' in respect of the above Units for New loads and additional loads are as follows :
"(a) For the cases where the load approvals are given and where the consumers have fulfilled all the required departmental formalities, the cases will be put up to Standing Committee for issue of release orders.
(b) For cases where feasibility of supply certificates were already issued, the cases will be put up to Standing Committee for load approval case by case.
(c) In cases where feasibility certificates are not issued to the consumers as per Board''s decision, consumer will be intimated accordingly in each case".
On the said note file, the endorsement made by the Chairman of the Board reads as follows :
"Considering the gap between the supply and demand for power and the likelihood of such shortage continuing for some more time in future, APSEB in consultation with the Government decided that power supply to industries should in future be limited in respect of such of new industries which have high social return. Industries listed below have been identified as those which do not have adequate social return for supply of power. Feasibility certificate will not therefore be given to such industries. Any diversification of the existing industry into the lines of manufacture listed in the Schedule as well as expansion of production on these lines will also attract similar negative approach. Divisional Engineer (Operation) will return such of those applications which come under negative list drawing attention to the notification. The notification should be published immediately."
Accordingly, a press notification has been issued and individual intimations were given to the petitioners-Industries.
The main thrust of the argument of the learned counsel for the petitioners is that u/s 79(j) of the Electricity (Supply) Act, 1948, the Board may make regulations but it cannot confer upon itself the power to unilaterally reject the requisition of the petitioners and the Board has a contractual obligation to supply electrical energy as requisitioned by the consumers and the power to ''supply'' does not include power to ''regulate'' the supply.
The word "supply" means "to give" or "to provide or to afford something that is necessary". According to Strouds Judicial Dictionary, 3rd Edn. p. 2939 "to supply" means to, "pass anything from one who has it to those who want it". The word "supply'' cannot be interpreted in its literal absolute sense, but must be given a limited and qualified sense. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. The term "regulate" is defined in the Oxford Dictionary "To control, govern or direct by rule or regulations to subject to guidance or restrictions, to adept to circumstances or surroundings". Consequently, a rule to regulate a power may be a rule to restrict the exercise of that power.
The learned counsel for the Board submits that the Board has taken the impugned decision after consultation with various other Electricity Boards in the country and also the State Government. When the decision taken by the competent authority is a reasonable one and not imputated by any mala fides on the part of the Board, it is not permissible for this Court to revise the well considered and well reasonable decision of the Board.
In support of his submission he relied upon decision of the Supreme Court, reported in The Adoni Cotton Mills Ltd. and Others Vs. The Andhra Pradesh State Electricity Board and Others, . Before the Supreme Court it was argued that Section 22B of the Indian Electricity Act, 1910 which confers power on the State Government to form an opinion as to the necessity or expediency of taking action for the maintenance of the supply and securing the equitable distribution of energy, exhausts the power of distribution of energy and the Board has no power u/s 49 of the Electricity (Supply) Act, 1948 to operate upon the field of supply of electricity. The Supreme Court held :
"Section 49 contains a much larger power because the Board is the authority primarily charged with all aspects of development and supply under Sections 18 and 49 of the 1948 Act".
In Hyderabad Engineering Industries Ltd., v. A.P. State Electricity Board, AIR 1988 SC 1985 the Supreme Court while discussing the powers of the Board u/s 49 of the 1948 Act referred to Section 26 of the Act and Clause (VI) of Schedule to Indian Electricity Act, 1910. The Supreme Court held :
"It is no doubt true that under these provisions the Board exercises control in relation to generation, distribution and utilisation of electricity and the learned Judges of the Division Bench felt that although specific power is not there u/s 18(c) but it is wide enough to authorise the Board to alter the conditions of supply. It is no doubt true that Section 18(c) confers power of control on the Board but as indicated above, in our opinion, the specific power u/s 49 Clause I is clear enough wherein Board has been authorised to lay down the conditions of supply".
The learned counsel for the petitioners cited the decision of the Supreme Court in State of U.P. and Others Vs. Hindustan Aluminium Corpn. and Others, , for his proposition that under Clause (VI) of Schedule to the Indian Electricity Act, 1910, the Board is liable to give supply whereever distribution mains are laid. But the Supreme Court upheld the contention of the U.P.S.E. Board that since no distribution mains were laid, Clause (VI) of Schedule of 1910 Act is not applicable to the UPSEB by virtue of second provision to Section 26 of the 1948 Act. The question whether Clause (VI) of Schedule to 1910 Act will operate as a complete fetter on the powers of the Board in taking decision like the one impugned in these writ petitions was not an issue either raised or discussed in the above judgment of the Supreme Court.
The learned counsel for the petitioners has also cited I.E. Newspapers (Bombay) Private Ltd. v. Union of India (1), (1986) 159 ITR 856 (SC) , and Andhra Pradesh Carbides Ltd. and Another Vs. Andhra Pradesh State Electricity board, Hyderabad and Others, , for his proposition that subordinate legislation cannot run counter to the main statute. While there can be no dispute on this settled proposition of law these decisions do not apply to the facts of the present case. The impugned notification is made in exercise of the powers conferred on the Board under Sections 49 and 79(J) of the Electricity Supply Act, 1948. By virtue of Section 26 of the said Act, making the provisions of Indian Electricity Act, 1910 applicable to the Board subject to the provisions of 1948 Act, the Board is empowered to issue the impugned notification. Since the impugned notification is in consonance with the 1948 Act the question of subordinate Legislation running counter to the main statute does not arise.
Coming to the facts of the present case, as seen from the file that has been produced by the Electricity Board, as already mentioned above, the Board in consultation with the State Government prepared a negative list of Industries which are not entitled to the feasibility certificates either for the new loads or additional loads. The decision of the Standing Committee is only in pursuance of the policy that has been enunciated by the Board. While implementing a policy, the Board is competent to constitute a Committee and the Committee''s decisions have to be considered duly taking into account the availability and demand.
The Board produced a statement regarding the installed capacity, peak availability, peak load, energy availability and requirement, both actual, provisional and estimated. According to the said statement, the estimated installed capacity for the year 1990-91 is 4204 MW and there is a deficit of 7349 MW. The available energy for 1990-91 is 16859 Mk Wh. as against the requirement of 22269 Mk Wh. This shows that there is an estimated deficit of 5410 Mk Wh.
When there is such a deficit, and the Board is imposing power cuts to several categories of consumers, would it be feasible for the Board to accord the additional supply to the petitioners-Industries? Certainly not. When the Board is experiencing severe power crisis, when the demand from the consumers is more and the availability of power is far less than the demand, the Board is justified in regulating the supply and in negativing the request of the petitioners for the supply of additional load. According to the statement produced by the Board, the deficit is on the increase year after year and by 1994-95 the deficit is estimated at 1553 MW in respect of load and 12781 Mk Wh in respect of energy. In view of this precarious condition in which the Board is helplessly placed, it had taken a decision to place a check on the growth of the demand. Any additional load to the already existing consumers will only result in the total denial of needy consumers and ii is only at the cost of other consumers. However, this Court finds that a reasonable classification has been made by the Board and the power of the Board under the guise of the Regulations to Supply to deny the gram of additional load or fresh load is within its competence and it is in consonance with the guidelines issued from time to time. But it will not come in the way of the Board to consider the case of the petitioners if the power position improves or if the Board in future decides to consider the applications of the consumers for the grant of additional or fresh load.
The writ petitions fail and they are accordingly dismissed. No costs.
After the judgment was pronounced, the learned Standing Counsel for the Stale Electricity Board represented that considering the feasibility certificates issued prior to the issue of the Notification, recently load approvals are given in some cases. If that be so, this judgment will not come in the way of the Standing Committee to consider the cases of the other petitioners also in the altered situation.