BISRA STONE LIME COMPANY LTD. & ANR. ETC versus ORISSA STATE ELECTRICITY BOARD & ANR.

Citation: [1976] 2 S.C.R. 307 · Decided: 21-10-1975 · Supreme Court of India · Bench: P.K. GOSWAMI · Disposal: Dismissed
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Judgment (excerpt)

.. 
307 
BISRA STONE LIME COMPANY LTD. & ANR. ETC. 
v. 
ORISSA STATE ELECTRICITY BOARD & ANR. 
October 21, 1975 
IP. K. GOSWAMI AND N. L. UNTWAUA, JJ.J 
Electricity (Supply) Act, 1948-S. 49-Surcliarge on electricity-Whether 
Electricity Board cdu/d /el')'. 
Dispute het11•een parties referred to arbitrator-If .court could witlulraw and 
deal with i't. 
-
A 
B~ 
Under cl. J 3 of the agreement between the parties the tariff and conditions 
of supply of electricity were subject to any revision that may be made by the 
C> 
supplier from time to time. Clause 23 states that any dispute or difference 
arising between the consumer and the supplier shall be referred to an arbi-
trator. The respondent issued a press note deciding to levy a surchage of 
IO per cent on certain categories of customers, which included the appellants ... 
The appellants challenged the levy but the High Court dismissed their writ 
petitions. 
On appeal to this Courb it was contended that (1) the Board had no power 
under the Act to levy a surcharge, (2) cl. 13 of the Agreement could not take 
Dt 
in the levy of surcharge and as such it is not a matter for reference to arbitra-
tion under cl. 23 of the agreement and (3) fo exempting certain categories and 
imposing surcharge upon the appellants the Board was guilty of discrimination, 
which is impermissible under s. 49 of the. Act and cl. 2 of Schedule I to the 
Agreement. 
Dismissing the appeals, 
HELD : (I ) Enhancement of the rates by way of surcharge i's well within the 
E .. 
power of the Board to fix or revise the rates of tariff under the provisions of 
the Act. The word "surcharge" is not defined in the Act. 
Etymologically it 
stand~ for an additional or extra charge or payment, and in the present case 
it is in substance an addition to the stipulated rate of tariff. [311 A-B; 3 lOH] 
(2) (i) It is only where there is nothing in a special agreement with regard 
to revision of rates during the subsistence of the 
agr~ement that the existence 
of the special agreements prevents any 
increase of the rates stipulated in 
the 
special agreements by adding the surcharge. In the present case cl. 13 of the 
Fe· 
agt·eement provides for revisjon or rates and the, surcharge is not absolutely 
uifferent from rates of tariff because the effect of the levy of surcharge would 
be to enhance the rates of supply of electricity stipulated under the agree• 
men!. l312 A-Bl 
111 /s. Titagarh Paper Mills Ltd. v. Orissa Stale Electricitv Board and Another 
[19751 2 S.C.C. 436, followed. 
". 
' 
llldiai1 Aluminium Company v. Kera/a State Electricity Boa/'ll, [1975] 2 S.C.C. 
G .. 
414, explamed. 
Therefore. the matter. in dispute is covered by the arbitration clause of the 
Agreement. [313 BJ 
(ii) Although the press note did not recite any provision of' the Act mere 
omission to do so did not disentitle the Board to rely upon clause J 3 for ~ claim 
to revision of the rates. [314 CJ 
(iii) This is not a fit case for the Court in its discretion, to withhold the 
matter f'rom arbitration and itself deal with it merely because the Court has 
discretion to do so under s. 34 of the Arbitration Act or under Art. 226 of the 
Hi 
c 
I) 
F 
G 
308 
SUPREME COURT REPORTS 
[ 197 6] 2 S.C.R. 
Constitrution and that the Court is better posted to decide such questions. The 
arbitration clause is of wide amplitude, taking in its sweep even interpretation 
of the agreement and necessarily, therefore, of cl. 13. [314 F] 
(3) The totality of the provisions under s. 49, does not give any 
scope 
for the plea of discrimination raised in this case and in view o~ cl. 13 of the 
agreement itself. 
As regards the various industries which have not been sul;J-
jected to the charge, it is not known whether there i~ a similar provision like 
cl. 13 in the agreements. [313 G-H] 
When the law makes it obligatory for certain special agreements to continue 
in full f'orce during their currency stultifying the power of the Board to revise 
the rates during the period, no ground of discrimination can be made out on the 
score of exempting such industries as are governed by special agreements. 
[314 BJ 
Mis. Titagarh Paper Mills Ltd. v. Orissa State Electricity Board and Another, 
[1975] 2 S.C.C. 436, applied. 
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 106 and 107 
of 1975. 
Appeals by Special Leave from the Judgment and 
Order dated 
18-10-74 of the Orissa High Court in O.J.C. Nos. 851 and 850 of 
1972 respectively. 
S. V. Gupte (In CA 107
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