JUDGMENT S.R. Nayak, J.

1. M/s Nava Bharath Ferro Alloys Limited, which is the petitioner in W.P. Nos. 9081 of 1991 and 13453 of 1993 and M/s Raasi Cements Limited, which is the petitioner in W.P. No. 234 of 1994, have assailed the validity of the impugned action of the A.P. State Electricity Board (the Board, for short) and its authorities, the respondents herein, demanding additional charges also known as 'surcharge for late payment' and interest on delayed payment of the outstanding dues under Clause 32.2.1 and Clause 34 of the Terms and Conditions of Supply (the TCS, for short) framed by the Board in exercise of the power conferred by Section 49 of the Electricity (Supply) Act, 1948 (Central Act No. 54/48), (hereinafter referred to as the 'Supply Act', for brevity), as illegal and unauthorised and without jurisdiction. They have also sought for consequential directions to the respondents to refrain from demanding additional charges and interest from the petitioners in respect of the delayed payments of the amounts adjudicated to be due from them.

2. It is appropriate that the relief sought in each of these writ petitions be noted first. In W.P.No. 9081 of 1991, the following relief is sought:-

"For the reasons stated in the accompanying affidavit, the petitioner herein prays that this Hon'ble court may be pleased to issue a writ of Mandamus or appropriate writ, direction or order commanding the respondents to refrain from demanding additional charges and interest from the petitioner in respect of the delayed payments of the amounts adjudicated to be due by virtue of the Judgment of the Supreme Court dated 2.5.1991 in Civil Appeal No. 2570 of 1985 and pass such other orders as may be just."

3. In W.P. No.13458 of 1993, the following relief is sought:

"For the reasons stated in the accompanying affidavit, the petitioner herein prays that this Hon'ble Court may be pleased to issue a writ of Mandamus or any other appropriate writ, direction or order declaring as illegal the demand in Lr. No. SEO/ KMM/CRS/HT/D.No.1 508 dated 7.8.1983 and command the respondents to refrain from demanding additional charges from the petitioner in respect of the alleged delayed payments of the amounts claimed to be due for the months of August 1987 and September 1987 and subsequent periods and pass such other orders as may be just."

4. In W.P. No. 234 of 1994, the following relief is sought:

"For the reasons stated in the accompanying affidavit, the petitioner herein prays that this Hon'ble Court may be pleased to issue a writ or an order or a direction more particularly one in the nature of writ of Mandamus declaring the levy of penal interest of Rs.45,96,915.90 in the bill for the month of December 1993 as highly illegal, arbitrary, unjust, void, without jurisdiction and opposed to the principles of natural justice and pass such other order or orders as are deemed fit and proper in the circumstances of the case."

5. Facts in W.P.Nos. 9081 of 1991 and 13458 of 1993:

M/s Nava Bharath Ferro Alloys Limited, the petitioner in the first two writ petitions, is a public limited company manufacturing Ferro Silicon. This petitioner's industry consumes huge quantities of electricity, approximately 10,000 units for every ton of Ferro Silicon. According to this petitioner, initially the Board had agreed to supply power at the rate of 6 paise per unit though the Board never supplied power at that rate. Other details set out in the pleading are not necessary for the purpose of decision-making.Suffice it to state that in 1975 the Board fixed the tariff at the rate of 11 paise per unit for this petitioner and three other consumers under Memo dated 18.11.1975. This list of four consumers increased over the years to 84. They were being given special rates categorizing them as power intensive consumers. Regular tariff was not applied to them and only executive instructions were being issued by the Board from time to time fixing the rates and other terms. This arrangement was arrived at in the nature of a special contract falling under Section 49(3) of the Supply Act. On 13.12.1983 the Board revised the general tariff and a separate order dated 29.1.1984 was issued for power intensive consumers. The validity of this order was assailed before this Court in W.P. No. 8177 of 1984. This writ petition, along with some other connected writ petitions, was heard and all the writ petitions were dismissed by order dated 3.4.1985 by a Division Bench of this Court. During the pendency of the writ petition, the High Court had granted stay of collection of disputed amount. That stay order dated 8.5.1984 reads as follows:

"There shall be stay of operation of the order in so far as writ petition is concerned, subject to the condition if the writ petitioner pays at the rate of 47.89 paise per unit with effect from April 1984 onwards, furnish Bank guarantee for the balance to the satisfaction of the Superintending Engineer concerned in four weeks from today. In default of any of the conditions, the stay stands vacated. The bank guarantee furnished shall be renewed for every 3 months. If the petitioner has already paid the demand for the month of April, on the basis of the impugned order, this order passed by me shall be effective from the month of May 1984, otherwise it will be operative from April, 1984."

6. In terms of the said order, the petitioner furnished bank guarantee and was paying at the rate of 47.89 paise per unit. By virtue of the interim order granted by this Court on 8.5.1984, the impugned Board order dated 13.12.1983 revising the tariff stood suspended.

7. After the dismissal of the writ petitions by this court, the petitioners carried the matter to the Supreme Court in S.L.P. Nos. 9206 and 9207 of 1985 in Civil Appeal Nos. 2569 and 2570 of 1985. The Supreme Court granted leave and directed continuation of the stay granted by this Court earlier. The relevant portion of the order made by the Supreme Court on 22.7.1985 reads-

"As regards stay, after hearing learned counsel for the parties we felt that the order passed by the High Court dated 24.4.1984 which operated during the pendency of the writ petitions will continue to operate during the pendency of the appeals with the modification that the rate of 47.89 paise per unit mentioned in the order is rounded to 48 paise per unit.

We would, however, like to make it clear that because of the High Court's order dated 13.4.1985, for a couple of months, there was no such orders in regard to future payments and the Electricity Board has received the dues at the enhanced rates in lump sum from some of the consumers. There will be no question of refunding the amounts back to these consumers.

The bank guarantee already furnished by the petitioners/appellants will be kept alive from time to time and will cover all the differences including the future difference."

8. By virtue of this interim order of the Supreme Court the tariff revision order dated 29.1.1984 of the Board continued to be inoperative. Subsequently, the said order was modified by vacating the stay in regard to the bills issued from 16.3.1990 onwards.The Supreme Court dismissed the appeal of the petitioner on 2.5.1991 with a batch of other connected Civil Appeals. After the dismissal of the Civil Appeals of this petitioner and others, they filed application in I.A.No. 1 & 2/91 in those Appeals seeking permission of the Court to pay the outstanding arrears of electricity consumption charges that became recoverable by the Board pursuant to the Judgment of the Supreme Court dismissing the appeals in reasonable instalments. The Supreme Court passed the order on 9.5.1991 on that application. The relevant portion of the order reads-

"We are afraid these are matters essentially for the Electricity Board to decide taking into account the particularities of the circumstances and hardships of each individual case. It is also necessary for the appellants to realize that the Electricity Board has itself borrowed money on high rates of compound interest and that if appellants withhold payment of electricity charges the functions of the Board itself would become difficult.

After considering the matter we suggested to the learned counsel on both sides that the appellants should within 30 days from today tender to the Board 50% of the amount due under the subsisting bank guarantee and make appropriate representation to the Board setting out the special financial circumstances of their undertakings which justify grant of time. The Board, we are sure, will take an appropriate decision having regard to all the relevant circumstances."

9. Thereafterwards, this petitioner addressed a letter dated 17.5.1991 to the Chairman of the Board requesting him to grant instalments to pay the balance amount of Rs.2,74,13,220/- in 12 equal monthly instalments commencing from July 1991. In the meanwhile, the Superintending Engineer (Operation Circle) Khammam, by his letter dated 14.6.1991 addressed to the petitioner, pointed out that an amount of Rs.5,57,66,539-18 ps is the outstanding dues towards the tariff difference for the period from April 1984 to August 1987 and to arrange for payment of the same. The letter reads-

"The Supreme Court of India, New Delhi, has delivered the Judgment on 2.5.1991, on your Civil Appeal No.2570/85. One copy of the Judgment is sent herewith.

An amount of Rs. 5,57,66.339.18 towards tariff difference from April 1984 to 8/87 part as per Month wise details enclosed is due from you, for which bank guarantees for Rs.5,57,66,339.18 are available with us. We have invoked bank guarantee for Rs. 2,83,53,120.93 on 14.6.91 with us in view of Supreme Court orders dated 2.5.1991 and 9.5.1991 still an amount of Rs.2,74,13,218.25 is due. You are therefore requested to pay the balance of tariff difference within due date as per Supreme court orders.

In addition to the above, there are tariff arrears of Rs.4,45,63,903.21 towards certain difference for the period from 8/87 (part) to 7/89.

As per clause 32.2.1 of Terms and Conditions of Supply, additional charges for delayed payments is payable and additional charges will be intimated separately.

Kindly arrange payment as above, within due date to avoid further action as per rules."

10. In response to the request made by the petitioner by its letter dated 17.5.1991, the Board sent up a Fax message on 9.7.1991 permitting this petitioner-company to pay the balance of 50% of tariff arrears in six monthly instalments. The message reads-

"With reference to your letter it is to inform that you are permitted to pay balance of 50% of tariff arrears in six monthly instalments commencing from 8.7.91 as shown below subject to the following condition.

-------------------------------------------------------------------------------------------------------------

S.No.InstalmentAmountAddl.Due date Charges

-------------------------------------------------------------------------------------------------------------

11. The computation of the electricity consumption charges is arrived at by the Board and its authorities in terms of Cl. 32.2.1 and Cl. 34 of the Terms and Conditions of supply.In this factual back ground, the grievance of this petitioner-company, to put it in a nut-shell, is that since the Apex Court itself thought it fit to grant 30 days time to tender to the Board 50% of the amount due under the subsisting bank guarantee and permit the petitioner to make appropriate representation to the Board for grant of instalments, resort to the provisions of Cl. 32.2.1 and Cl. 34 of the Terms and Conditions of Supply in order to levy additional charges and interest respectively is totally unjustified and illegal. Hence these two writ petitions, W.P. No. 9081 of 1991 and 13458 of 1993 by M/s Nava Bharath Ferro Alloys Limited. W.P. No. 9081/91 relates to the period from April 1984 to July 1987 whereas W.P. No. 13458 of 1993 relates to the period from August 1987 to July 1989.

12. Facts in W.P.No.234 of 1994 : The petitioner company is engaged in the manufacture of cement and it is a HT consumer with a contracted maximum demand of 32 MVA under an agreement with the Board. The petitioner unit was commissioned in the year 1981 with effect from 1.11.1981. Under Clauses 9 and 10 of the Agreement entered into between the petitioner and the Board, the petitioner is under an obligation to pay the Board the maximum demand charges, energy charges, meter rent and other charges in accordance with the tariffs applicable from time to time.Under Clause 10, the Board also reserves right to vary from time to time the tariff scales and miscellaneous charges. In view of this right reserved under Clause 10, the Board has been increasing the tariff rates from time to time to meet the Board's financial needs and exigencies. While so, the Board increased the tariff rates with effect from 15.7.1987 resulting in the increase of rate from 51% to 74% vide B.P.Ms.No.671 (Commercial), dated 10.6.1987. Challenging the validity of the said increase, several HT consumers including the petitioner company herein filed W.P.No.11926 of 1987 and the batch. The petitioner's writ petition was W.P.No.701 of 1988 and this Hon'ble Court granted stay of operation of the B.P.Ms.No.671, on the condition that the petitioner herein pay 50% of the demand. While the above writ petitions were pending before this Court, the Board once again increased the tariffs in the year 1989 vide B.P.Ms.No.353 (Commercial), dated 15.4.1989 and the validity of which was also questioned in writ petitions before this Court. The writ petitions questioning the increase vide B.P.Ms.No.671 in the year 1987 as well as the increase vide B.P.Ms.No.353 in the year 1989 were clubbed and heard by a learned single Judge of this Court and by a common judgment dated 6.9.1989 made in WP No.11926 of 1987 and batch, the learned single Judge struck down the increase in tariff vide B.P.Ms.No.671 partly and the increase vide B.P.Ms.No.353 in the year 1989 in totality. Against the said judgment of the learned single Judge, the Board preferred Writ Appeal No.1427 of 1990 and batch to the Division Bench.When the writ appeals were pending before the Division Bench, the Division Bench passed an interim order directing maintenance of status quo. The consumers also preferred appeals against the judgment of the learned single Judge dated 6.9.1989 made in WP No.11926 of 1987 and batch insofar as the said decision went against them in the tariff increases vide B.P.Ms.No.671 (Commercial), dated 10.6.1987. The Division Bench by its judgment and order dated 2.4.1990 allowed Writ Appeal No.1427 of 1990 and the batch preferred by the Board and set aside the judgment of the learned single Judge dated 6.9.1989 made in WP No.11926 of 1987 and batch.The Division Bench while allowing the writ appeals granted six instalments for payment of the arrears of the electricity charges which had become payable to the Board by virtue of the judgment of the Division Bench dated 2.4.1990 commencing from 1.6.1990. The Division Bench while permitting payment of outstanding arrears of electricity charges in six equal monthly instalments observed :

".....in view of the fact that over the last two years as well as this year a fairly substantial power cut has been imposed upon the industrial consumers, we are inclined to give some accommodation in the matter of payment of the said arrears. ... It is accordingly directed that the arrears of electricity charges which have not been paid by the consumers in the light of the stay orders granted by this Court shall be paid in six equal monthly instalments on or before 1.6.1990"

.

13. Aggrieved by the above judgment of the Division Bench of this Court, several HT consumers including the petitioner carried the matter to the Supreme Court through SLP (Civil) Nos.8123-32 of 1990 and the batch and the Supreme Court by an order dated 10.9.1992 granted special leave and while doing so, the Supreme Court directed that the instalments granted by the Division Bench of this Court shall continue with slight modification that the 1st instalment would commence with effect from 1.8.1990 instead of 1.6.1990.

14. In the meanwhile, in pursuance of the judgment of this Court in Writ Appeal No.1427 of 1990 and the batch, the Board in its letter No.SE/O/KMM/CRS/HT/A/D.No.1147/90, dated 22.5.1990 required the petitioner company to pay the arrears of electricity charges in six instalments. Accordingly, the petitioner paid the amounts due to the board amounting to Rs.3,18,76,956/- in six instalments without any default commencing from 1.6.1990 to December, 1990. In the meanwhile, the Board issued another Letter No.SE/O/KMM/CRS/HT/A/ D.No.1892/90, dated 13.7.1990 requiring the petitioner to pay additional charge of Rs.76,05,029/- purported to be under Condition No.32.2.1 of the TCS upto the end of 31.5.1990 in six instalments commencing from 20.7.1990 to 20.12.1990. Aggrieved by the said demand of additional charge, the petitioner company filed W.P.No.10405 of 1990 and this Court did not grant any interim order. Under those circumstances, the petitioner company paid the entire amount of Rs.76,05,029/- in six instalments as demanded by the Board vide its letter dated 13.7.1990 without committing any default. Subsequently, W.P.No.10405 of 1990 and certain other connected writ petitions were disposed of by a learned single Judge of this Court by judgment dated 10.4.1991 partly allowing the writ petitions holding that the Board is not entitled to collect any interest or surcharge on the arrears due to the Board from the date of judgment of the learned single Judge i.e., 6.9.1989 made in WP No.11926 of 1987 and the batch to 2.4.1990.Aggrieved by the above judgment of the learned single Judge, the Board preferred Writ Appeals in W.A.Nos.897 of 1991 and the batch. A Division Bench of this Court by its interim order dated 6.8.1991 ordered status quo to be maintained. The order reads :

"It is directed that, pending hearing and final disposal of the batch of writ appeals admitted today, there will be stay of refund under the impugned judgment. However, in the event any refund is already adjusted by the Electricity Board against any future due or dues, the said adjustment will stand undisturbed, pending hearing and final disposal of the batch of Writ appeals. If any refund is already made by the Electricity Board, by way of adjustment, the same should not be altered or modified or re-opened, pending hearing and final disposal of the batch of Writ Appeals."

15. When the matter stood thus, the Senior Accounts Officer, Operation Circle, APSEB, Nalgonda, the 3rd respondent herein issued electricity bill for the month of December, 1993 dated 27.12.1993 for a total sum of Rs.3,04,08,983/- in which an amount of Rs.45,96,915/- was shown as interest leviable under clause 34 of the TCS. The above demand included a sum of Rs.31,34,990.40 as additional charge under Condition No.32.2.1 of TCS on the tariff arrears at 24% commencing from 3.8.1990 to 2.1.1991 i.e., pertaining to the payment of arrears of electricity charges due to the Board in six instalments as per the direction of the Division Bench of this Court while disposing of the Writ Appeal Nos.1427 of 1990 and the batch. The demand also included an amount of Rs.11,69,393.45 ps for the same period at 18% per annum purported to be under condition No.34 of the TCS. Further, the demand also included a sum of Rs.92,532.05 ps for the period commencing from 20.7.1990 to 20.12.1990 @ 24% of the amount on the interest became payable to the Board prior to 31.5.1990 which has become ultimately the subject matter of W.P.No.10405 of 1990 questioning the collection of any interest during the pendency of the writ petitions wherein the validity of the increase of tariffs was assailed as pointed out supra.Hence, this writ petition praying for the relief already noticed above.

16. We have heard Mr G.S. Sanghi, learned Senior Counsel, who appeared on behalf of the petitioners in W.P. Nos. 9081 of 1991 and W.P. No. 13458 of 1993 along with Sri C.Kodanda Ram, Mr. Duba Mohan Rao, learned counsel for the petitioner in W.P. No. 234 of 1994 and Mr. N.Subba Reddy, learned Senior Standing Counsel for the Board.

17. Mr. G.S.Sanghi, contended that the petitioners did not commit any default in the matter of payment of electricity consumption charges and, therefore, condition No. 32.2.1 of TCS is not applicable inasmuch as that condition is applicable only in a case where a consumer commits default. Non payment of the charges demanded in terms of the impugned tariff notification by virtue of the orders made by the Court cannot be equated to a 'default' within the meaning of that word so as to attract the provisions of condition No. 32.2.1. Mr. Sanghi, in support of the above contention placed reliance on the judgment of the Supreme Court in M/s.Consolidated Coffee Ltd. v. The Agricultural Income-Tax Officer, Madikeri1. Mr. Sanghi, alternatively, contended that the power granted to the Board under Section 49(1) of the Electricity (Supply) Act, 1948 (for short, the Supply Act), does not empower the Board to impose additional charges and/or to collect interest charges at 24% per annum where the Board grants instalments to the consumers to pay charges for electricity supplied in instalments and, therefore, condition Nos. 32.2.1 and 34 of TCS are ultra-vires of the Supply Act and invalid. Mr. Sanghi further contended that interest, under no circumstance, can be charged on delayed payment unless the statute empowers the Board to collect it. In other words, Mr. Sanghi would maintain that interest could be charged on belated payment provided the concerned statute makes substantive provisions in that regard. Mr. Sanghi, in support of this contention, would place reliance on the Judgments of the Supreme Court in V.V.S.Sugars v. Govt. of A.P.2 Mr. Sanghi would further contend that the relief of compensation made available to the Board on account of belated payments should be just and reasonable and should not cause unwanted and unavoidable hardship to the consumers.Mr. Sanghi would further contend that the petitioners are the power intensive units and more than 20% of the cost incurred by them is towards electricity. Mr. Sanghi would maintain that if the idea of granting relief by way of restitution is that parties should be put back to the original position as it prevailed prior to the passing of the stay orders, then, the demands now made by the Board cannot be sustained on the touch-stone of Art. 14 of the Constitution and they are liable to be condemned as arbitrary and unreasonable. Mr. Sanghi would contend that condition No. 34 of the TCS is arbitrary and the rate of interest is usurious. The learned counsel would point out that since the total liability under condition No. 32.2.1 and 34 of TCS works out to 42%, it is obnoxious to all principles of reason and justice and, therefore, it is really a condition in terrorem and such condition should not be enforced by a court of law. Mr. Sanghi would lastly contend that even in the event of the Court upholding the right of the Board to impose additional charges and interest under condition No. 32.2.1 and condition No. 34, even then, it would be just, proper and equitable to reduce the interest rate atleast to 18% as has been done in Kanoria's case, keeping in mind the hardship of the petitioners and to do complete justice.

18. Sri Duba Mohan Rao, learned counsel appearing for the petitioner in W.P. No. 234 of 1994, while adopting the arguments of Mr. Sanghi, learned Senior Counsel, would supplement by contending that the High Court, by appreciating the difficulties of the petitioners, had granted six instalments in its extra-ordinary, equitable and discretionary jurisdiction and, therefore, it is not permissible for the Board to levy additional charges and interest. Mr. Duba Mohan Rao would also contend that when the High Court or the Supreme Court, in exercise of their constitutional judicial power, grants instalments to pay the outstanding dues of the electricity consumption charges for the electricity supplied by the Board, the provisions of condition No. 34 are not attracted. In other words, according to the learned counsel, if the Board itself on a request made by the consumer grants instalments for payment of the outstanding dues, then only, the Board is entitled to charge interest as provided under condition No. 34. Lastly, Mr. Duba Mohan Rao, assailing the demand of the Board in a sum of Rs.2,92,532-05 ps for the period commencing from 20.7.1990 to 20.12.1990 at the rate of 24% on the sum of Rs.76,05,029/-, being the interest which became payable to the Board prior to 31.5.1990 for which six instalments were granted for payment, would contend that there cannot be any additional charge on an additional charge, and in that view of the matter, thedemand of Rs. 2,92,532/05 ps is not tenable under any circumstance.

19. Sri N.Subba Reddy, learned Senior Standing Counsel for the Board, while supporting the impugned levy and demand, would contend that by force of the decisions of the Supreme Court in Kerala State Electricity Board v. MRF Limited3 and Kanoria Chemicals and Industries Ltd. v. U.P.State Electricity Board4 and the Judgment of this Court in M/s.Rayalaseema Roller Flour Mills v. A.P.S.E.B., Hyderabad5 the electricity consumers cannot be absolved of the liability to pay interest or late payment surcharge in respect of the bills issued during the period of operation of stay or injunction order or even during the period when the enhanced tariff notification could not be put in force by the reason of the decision of the Court striking down the same and, therefore, the learned Standing Counsel would maintain that the contentions now raised by the learned counsel for the petitioners reiterating the contentions earlier raised and rejected by the Courts, are untenable. Mr. N. Subba Reddy would maintain that condition Nos. 32.2.1 and 34 are compensatory in nature and not penal as contended by the other side. Mr. N.Subba Reddy would also contend that condition Nos. 32.2.1 and 34 are not ultra vires Section 49 of the Supply Act and the prescriptions contained in condition Nos. 32.2.1 and 34 are very much within the domain of the power delegated to Board under sub-section (1) read with sub-section (2) of section 49 of the Act. Meeting the contention of the learned counsel for the petitioner in W.P. No. 234 of 1994, Mr. N.Subba Reddy would contend that the High Court by granting instalments has not imposed any moratorium on the liability of the petitioners to pay the charges in terms of condition Nos. 32.2.1 and 34. Mr. N.Subba Reddy would maintain that any direction or order made by the High Court under Article 226 should be in furtherance of the rule of law and cannot be in derogation of law. Mr. N.Subba Reddy would maintain that additional charges as well as interest are imposed under law and not de hors the law.Further, Mr. N.Subba Reddy, meeting the contention of the petitioner in W.P. No.2 34 of 1994 that the demand of Rs.2,92,532-05 ps tantamounts to an additional charge on additional charge and, therefore, is not tenable, would draw the attention of the Court to condition No. 32.1 of TCS which provides that the bill to be issued may include not only charges for energy supplied but also any other sum in connection with supply of energy by the Board and, therefore, there is no merit in the contention. Mr. N.Subba Reddy would contend that condition Nos. 32.2.1 and 34 are not ultra-vires of Section 49 of the Supply Act as contended by Sri G.S. Sanghi, learned Senior Counsel for the petitioners being irrational and arbitrary, but there is a sound rationale behind the provisions of the above conditions which are intended to achieve the twin objectives; to discourage belated or delayed payment of charges of electricity supplied by the Board and to compensate the Board in case of delayed payment. These twin objectives are, in turn, intended to sustain the sound economic health of the Board which has undertaken a huge and wide-ranging essential utility service.

20. Before adverting to the rival contentions of the parties, it is necessary to notice the relevant statutory provisions.The Supply Act was enacted in the year 1948 to provide for rationalization of the production and supply of electricity, and generally for taking measures conducive to electricity development. The Board is a statutory corporation set up under Section 5 of the Supply Act. Under Section 18 of the said Act, the Board is charged with the duty, inter alia, to supply electricity to licensees and other consumers. Section 26 of the Supply Act lays down that the Board shall have all the powers and obligations of a licensee under the Indian Electricity Act, 1910. However, certain provisions of the Indian Electricity Act are inapplicable to the Board. Under Section 49 of the Supply Act, the Board may supply electricity to any person, other than a licensee, upon such terms and conditions as the Board thinks fit and may for the purpose of such supply, frame uniform tariffs taking into account the factor set out in sub-section (2) of Section 49. This power conferred on the Board under Section 49 is, however, subject to the provisions of the Supply Act and the Regulations made thereunder. Section 79(j) contemplates regulations being made laying down

"principles governing the supply of electricity by the Board to persons other than licensees under Section 49"

.It is stated that the Board has not framed any such regulations under Section 79(j) so far. However, the Board, in exercise of the powers conferred on it under Section 49 of the Supply Act, has notified the terms and conditions for supply of electrical energy, which came into effect from 20th October, 1975. Under the scheme of the tariffs, consumers are classified and separated and different tariffs have been fixed for different types of consumers.

21. Sub-Sections (1) and (2) of Section 49 read as follows :

49. Provision for the sale of electricity by the Board to persons other than licensees.-(1) Subject to the provisions of this Act and of regulations, if any, made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply, frame uniform tariffs.

(2) In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely-

(a) the nature of the supply and the purposes for which it is required;

(b) the coordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee:

(c) the simplification and standardisation of methods and rates of charges for such supplies;

(d) the extension and cheapening of supplies of electricity of sparsely developed areas.

Condition No.32.1, Condition No.32.2.1(a) and Condition No. 34 (a) framed by the Board read as follows :

"32.1 The Board shall as far as possible within 15 days after the expiration of each calendar month cause to be delivered to every consumer a bill of charges stating the amounts payable by the consumer towards charges for energy supplied and any other sum in connection with supply of energy by the Board. The net total of the bill shall be rounded of to the nearest rupee.Amount less than 50 paise will be ignored and the amount of 50 paise and above will be rounded off to the next higher rupee."

"32.2.1 (a) Bills shall be paid by the high tension consumers within1 5 days and by low tension consumers within fourteen days from the date of the bill failing which the consumer shall be liable to pay an additional charges at the rates prescribed by the Board from time to time and notified in the Tariff Notifications of the Board."In the case of consumers covered by Card system of billing the payment shall be made in the manner specified in the tariff applicable to such consumers."

"34. Payment of dues of the Board in instalments:- (a) The Board may permit a consumer when he so requests, to pay charges for electricity supplied, consumption deposit or any other charges in instalments provided that, where such request is granted the consumer shall in addition to any additional charges leviable due to belated payment as per the clause 32.2 hereof under the other terms and conditions of supply, pay interest charges at 24% per annum, on the amount outstanding out of the charges allowed to be paid in instalments."

22. We do not find any merit in the contention of Mr.Sanghi that Conditions 32.2.1 and Condition No.34 are ultra vires the Supply Act and they fall outside the power conferred on the Board under Section 49 of the Supply Act. As could be seen from Section 49 of the Act, the Board has power to prescribe such terms and conditions as it thinks fit for supplying electricity to any person other than a licensee. Section 49 empowers the Board also to frame uniform tariffs for such supply. Under Section 79(j), the Board could have made regulation therefor, but admittedly no regulation has so far been made by the Board. The TCS framed by the Board under Section 49 are made applicable to all consumers availing supply of electricity from the Board. Section 49 does not require the Board to enter into a contract with the individual consumer. Even in the absence of an individual contract, the TCS notified by the Board will be applicable to the consumer and the consumer will be bound by them. Despite this position in law, probably, in order to avoid any possible plea by the consumer that he had no knowledge of the Terms and Conditions of Supply, agreements in writing are entered into with each consumer. That will not make the terms purely contractual. Therefore, the terms and conditions framed by the Board under Section 49 are statutory in character and they cannot be said to be purely contractual. This is well settled position in law by virtue of the opinion of the Apex Court in M/s.Hyderabad Vanaspathi Ltd. v. APSEB6.

23. Under sub-section (1) of Section 49, the Board is empowered to define TCS on which it may supply electricity to any person not being a licensee and while defining those terms and conditions, the Board shall have regard to those factors enumerated in sub-section (2) of Section 49. Clause (b) of sub-section (2) of Section 49 speaks, among other things, about the supply and distribution of electricity in a "most efficient and economical manner". Although the Board cannot be compared or equated to a private entrepreneur or an industry and though it is a `State' within the meaning of Article 12 of the Constitution of India, the Supply Act itself imposes a statutory obligation on the Board to supply the electricity to the consumers in a most efficient and economical manner. In other words, while fixing the rates or tariffs and notifying TCS, the Board is entitled to take into account both economy and efficiency of the organization as mandated by sub-section (2) of Section 49. If these statutory intendments placed on the Board as duty are kept in mind, it cannot be said that the provisions made by the Board under Section 49 of the Act for additional charges on the delayed payment or provision made to charge interest in case the Board grants instalments to clear the outstanding dues, are not in consonance with the extent of power granted to the Board nor can it be said that in making such provision, the Board out-stepped its delegated power under Section 49 of the Act nor can it be said they are arbitrary, unreasonable and usurious. It is trite that no enactment can be struck down by the Constitutional Courts just saying that in the opinion of the Court it is arbitrary or unreasonable. Although non-arbitrariness, reasonableness and fairness are postulates of Article 14 of the Constitution, when an enactment is sought to be struck down on the ground of arbitrariness and unreasonableness, the reviewing Court should find some or other constitutional infirmity before invalidating the enactment. An enactment cannot be struck down merely on the ground that the Court thinks it is unjustified and unwise.This position is fairly well settled by the decision of the Supreme Court in STATE OF A.P. vs. Mc DOWELL & COMPANY7. It is not open to a Court to declare an enactment unconstitutional and void solely on the ground of unwise and harsh provisions or that it is supposed to violate some of the perceived natural, social, economic or political rights of the citizen, unless it can be shown with satisfactory proof that such injustice is in fact prohibited or such rights guaranteed or protected by the Constitution. Therefore, we do not find any merit in the contention of Mr. Sanghi that conditions 32.2.1 and 34 are ultra vires Section 49 of the Supply Act.

24. Since the TCS are statutory in character, they can be invalidated only if they are in conflict with any of the provisions of the Supply Act or the Constitution. Sri Sanghi has not shown us any provision in the Supply Act with which conditions 32.2.1 and 34 are in conflict. Insofar as the Supply Act is concerned, the argument hovers around section 49 only. The only limitation in that section is that TCS should be subject to the provisions of the Act. Conditions 32.2.1 and 34 do not violate any provisions of the Supply Act. On the other hand, we find that conditions 32.2.1 and 34 are intended to achieve the objective mentioned in clause (b) of sub-section (2) of section 49 of the Act. In fact, conditions 32.2.1 and 34 are intended to achieve the twin objectives; to discourage delayed payment of charges of electricity and encourage prompt and timely payment of charges of electricity supplied by the Board and to compensate the Board in case of delayed payments. Undoubtedly the twin objectives are, in turn, intended to sustain the sound and economic health of the Board which is charged with a quite huge and expansive public utility service.

25. Although Mr. G.S. Sanghi, with his usual persuasiveness and force of argument, attempted his best to avoid the unavoidable liability to pay the charges under condition No. 32.2.1, the decisions of the Supreme Court in Kerala State Electricity Board case (3 supra) and Kanoria Chemicals and Industries Limited case (4 supra), put the principle beyond any doubt that the electricity consumers cannot be absolved of their liability to pay additional charges under condition No. 32.2.1 and interest under condition No. 34 in respect of the bills issued during the period of operation of stay or injunction order or even during the period when the enhanced tariff notification could not be put in force by reason of the decision of the court striking down the same. The contention of Sri Sanghi that the petitioners did not commit any default in payment of electricity consumption charges and, therefore, condition No. 32.2.1 of the TCS is not applicable, is required to be noticed only to be rejected in the light of the Judgment of the Apex Court in Kerala Electricity Board case ( 3 supra). In that case the Apex Court had to deal with a similar situation and to address itself to the question whether and on what basis the Electricity Board could recover 18% interest on the dues of energy charges. In that case also, the Kerala High Court by its Judgment dated 19.12.1985 struck down the revision of tariff by the Electricity Board. The Kerala High Court directed the amounts paid in excess to be adjusted towards future bills. The Board then filed appeals in the Apex Court. The Apex Court allowed the appeals preferred by the Board by Judgment dated 26.8.1986 and upheld the validity of the tariff revision. Pending the appeals, the Apex Court, while granting stay of the refund of charges already paid, directed future charges to be collected at 50% and the balance to be adjusted towards past charges. The consumer company accordingly paid 50% of the demands for the months of March to June 1986 and adjusted 50% of the balance towards refund due to them. The Kerala Electricity Board then raised demands for payment of billed amounts together with interest at 18% per annum. The relevant provision in the agreement provided that 'in default of payment within the stipulated time, the payment was to be made with interest at 18% per annum or at such other percentage as may be fixed by the Board from time to time'. Contesting the liability to pay interest at 18% for the adjusted amounts, the consumers again filed writ petitions. The Division Bench of Kerala High Court held that the liability to honour future bills had ceased on account of the Judgment of the High Court on 19.12.1985 till the excess payment was adjusted.As there was no enforceable demand, the Division Bench agreed with the view of the learned single Judge that the writ petitioners could not be said to have defaulted in not discharging the liability which did not factually exist at the relevant time. The Kerala Electricity Board took up the matter in appeal to the Supreme Court. The Supreme Court reversed the decision of the Kerala High Court and allowed the appeals.The claim of interest at 18% on the unpaid portion of the bills drawn up on the basis of revised tariff was upheld. The Supreme Court took the same view expressed by the Kerala High Court that the company cannot be held to be a defaulter for non payment of the energy bills at the enhanced rates during the period the revision of tariff remained unenforceable on account of the decision of the High Court.But at the same time, their Lordships of the Supreme Court were pleased to observe "But after the decision of this court upholding upward revisions of tariffs, the Board's entitlement to draw bills on the basis of upward revisions and consequential enforceability of payment of such bills by the consumers revived with full force. Hence, it would not be correct to contend that although the Company or for that matter other consumers were required to pay on the basis of revisions of tariffs from the dates when such revisions became effective, liability for such payment would accrue only from the date of pronouncement of the judgment by this court upholding upward revisions and not from any date prior to that. If the. upward revisions are held as valid, enforceability of such upward revisions being consequential to such revisions, though it had remained unenforceable for some period on account of the decision of the High court, cannot but revive from the dates of upward revisions.

26. There is no manner of doubt it is an imperative duty of the court to ensure that the party to the lis does not suffer any unmerited hardship on account of an order passed by the court. The principle of restitution as enunciated by the Privy council in Rodger case has been followed by the Privy council in later decisions and such principle being in conformity to justice and fair play be followed. It should, however, be noted that in an action by way of restitution, no inflexible rule can be laid down. It will be the endeavour of the court to ensure that a party who had suffered on account of decision of the court, since finally reversed, should be put back to the position, as far as practicable, in which he would have been if the decision of the court adversely affecting him had not been passed. In giving full and complete relief in an action for restitution, the court has not only power but also a duty to order for mesne profits, damages, costs, interest etc. as may deem expedient and fair conforming to justice to be done in the facts of the case. But in giving such relief, the court should not be oblivious of any unmerited hardship to be suffered by the party against whom action by way of restitution is taken. In deciding appropriate action by way of restitution, the court should take a pragmatic view and frame relief in such a manner as may be reasonable, fair and practicable and does not bring about unmerited hardship to either of the parties.

27. In para 25 of the Judgment, the Supreme Court considered the question whether the demand of interest at 18% on the unpaid portion of the billed amounts was just and equitable and came to the conclusion that the demand to pay interest at the rate of 18% per annum in the fact situation of that case was just and proper.In recording the said finding, the Apex Court took note of the fact that the consumers, apart from not paying the revised tariff, got adjustment of payments already made prior to the decision of the High Court against future bills and the amount so saved was gainfully utilized by the company in its commercial activities while the Board suffered financial loss because of the erroneous decision of the High Court.In that connection, the Apex Court was pleased to observe-

The Company is an ongoing business concern and must have utilised the money, saved on account of the decision of the High court, gainfully in its commercial activities. Similarly, other consumers have gainfully utilised the amount saved for being not required to pay on the basis of revised tariffs. The Board had to suffer financial loss because of the said erroneous decision of the High court. In the aforesaid circumstances, it will be lawful, conforming to equity and well-established principle of restitution for the Board to claim interest at 18% on the unpaid portion of the Bill drawn on the basis of revised tariffs. The Company had agreed to pay interest at 18% on the bills if not paid when it became due and payable. Even otherwise, claim of 18% interest per annum also appears to be just and proper.

28. In Kanoria Chemicals and Industries Limited case ( 4 supra), the validity of the notification dated 21.4.1990 issued by the U.P. State Electricity Board revising the electricity rates/tariffs under Section 49 of the Supply Act was assailed before the Allahabad High Court by way of a writ petition filed by the Eastern U.P. Chamber of Commerce and Industry. On the interlocutory application filed in the said writ petition, the Allahabad High Court passed the following interim order:

"In this case, S/Shri Sudhir Agarwal and S.C.Budhwar have filed appearance on behalf of the respondents. They pray for and are granted two weeks' time for filing a rejoinder-affidavit. List this petition for disposal, if possible at the admission stage, on 16.8.1990. This is necessary in view of he recurrence of this matter in large number of cases and revenue in large scale being affected for electricity charges. Meanwhile till 23.8.1990 unless recalled earlier, the operation of the notification dated 21.4.1990 shall remain stayed.The respondents are restrained from realizing the additional amount of electricity charges from petitioners in pursuance of the said notification. However, the petitioners shall continue to pay at the old rate."

29. The said order was continued by subsequent orders dated 30.8.1990 and 7.9.1998. It appears that besides the above writ petition, several other writ petitions were also filed questioning the aforesaid notification issued by the U.P. State Electricity Board and in every writ petition an interlocutory application praying for stay of operation of the said notification was filed, but their does not appear to be any uniformity in the interim orders made by the Allahabad High Court in those writ petitions. Be that as it may, a Division Bench of the Allahabad High Court on 1.3.1993 ultimately dismissed all those writ petitions challenging the said notification. After the dismissal of the writ petitions on 1.3.1993, the appellant company deposited the difference amount between the pre-revised and the revised electricity rates. It did not, however, deposit the 'additional charges' leviable under Clause 7(b) of the notification. Cl. 7(b) read as follows:

"7(b) For delayed payment-In the event of any bill of whatever nature it may be not being paid by the due date specified therein, the consumer shall pay an additional charge per day of seven paise per hundred rupees or part thereof on the unpaid amount of the bill for the period by which the payment is delayed, beyond the due date specified in the bill, without prejudice to the right of the Board to disconnect the supply."

30. Therefore, the Board issued a notice of demand calling upon the appellant to pay the late payment surcharge in a sum of Rs. 3,27,01,408.88p calculated up to 28.2.1993. Similar demand notices were served on other appellants also. In those circumstances, a fresh batch of writ petitions were filed by several consumers including the appellant, Kanoria Chemicals and Industries Limited, questioning the notices demanding late payment surcharge under Clause 7(b). The main contention of the appellants before the Allahabad High Court was that inasmuch as the High court had stayed the operation of the notification dated 21.4.1990, Clause 7(b) remained inoperative during the period 25.7.90 and 1.3.1993 and, therefore, no late payment surcharge can be levied on the amount withheld by the appellant under orders of the Court. Ultimately, those writ petitions were also dismissed. Rejecting the above contention of the appellant, a Division Bench of the High Court opined that the consumers are liable to pay late payment surcharges under Clause 7(b) of the notification even for the period covered by the aforementioned order dated 25.7.90 (as extended from time to time). The correctness of the said opinion of the High Court was assailed before the Apex Court. The Apex Court, while dismissing the appeals, held-

"...We, therefore, agree with the High court that Adoni Ginning cannot be read as laying down the proposition that the grant of stay of a notification revising the electricity charges has the effect of relieving the consumers/petitioners of their obligation to pay late payment surcharge/interest on the amount withheld by them even when their writ petitions are dismissed ultimately. Holding otherwise would mean that even though the Electricity Board, who was the respondent in the writ petitions succeeded therein, is yet deprived of the late payment surcharge which is due to it under the tariff rules/regulations. It would be a case where the Board suffers prejudice on account of the orders of the court and for no fault of its. It succeeds in the writ petition and yet loses. The consumer files the writ petition, obtains stay of operation of the notification revising the rates and fails in his attack upon the validity of the notification and yet he is relieved of the obligation to pay the late payment surcharge for the period of stay, which he is liable to pay according to the statutory terms and conditions of supply - which terms and conditions indeed form part of the contract of supply entered into by him with the Board. We do not think that any such unfair and inequitable proposition can be sustained in law. No such proposition flows from Adoni Ginning. It is a matter of common knowledge that several petitioners (their counsel) word the stay petition differently. One petitioner may ask for injunction, another may ask for stay of demand notice, the third one may ask for stay of collection of the amount demanded and the fourth one may ask for the stay of the very notification. Such distinctions are bound to occur where a large number of writ petitions are filed challenging the same notification. The interim orders made by the Court may also vary in their phraseology in such a situation. Take this very case: While the consumers had asked for stay of operation of the government order revising the rates, those very consumers asked for an injunction when they came to the Supreme court. Furthermore, as pointed out rightly by the High court, the orders of stay granted by the High court in writ petitions questioning the validity of the Notification dated 21/4/1990 were not uniform. In the case of writ petition filed by the Eastern U.P. Chamber of Commerce and Industry, Allahabad, the operation of the notification was stayed while in the case of the writ petition filed by the Employers' Association of Northern India, it was directed that "effect shall not be given to the Notification dated 21/04/1990 as against the petitioner", while clarifying at the same time that "in the event of failure of the writ petition, the petitioner shall deposit with the relevant authority within a period of one month from the date of dismissal of the writ petition the difference between the amount of electricity dues to be paid hereinafter by the petitioners under our orders and the sum which may be calculated on the basis of the impugned notification". The words "sum which may be calculated on the basis of the impugned notification" in the later order clearly mean and include the late payment surcharge as well. The acceptance of the appellants' argument would thus bring about a discrimination between a petitioner and a petitioner just because of the variation of the language employed by the court while granting the interim order though in substance and in all relevant aspects, they are similarly situated. It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing a party (Board in this case) for no fault of its and would also mean rewarding a writ petitioner in spite of his failure. We do not think that any such unjust consequence can be countenanced by the courts. As a matter of fact, the contention of the consumers herein, extended logically should mean that even the enhanced rates are also not payable for the period covered by the order of stay because the operation of the very notification revising/enhancing the tariff rates was stayed. Mercifully, no such argument was urged by the appellants. It is understandable how the enhanced rates can be said to be payable but not the late payment surcharge thereon, when both the enhancement and the late payment surcharge are provided by the same notification the operation of which was stayed

31. In the same case, dealing with the contention that the rate of late payment surcharge provided under Clause 7(b) is really penal in nature inasmuch as it works out to 25.5% per annum, the Supreme court held that Clause 7(b) is not penal in nature. Therefore, the statement of law made by the Supreme Court in paragraph 14 that Clause 7(b) is not penal in nature squarely disposes of the contention of Sri Sanghi that condition No.34 is penal in nature. Sri Sanghi, drew our attention to the following observations of the Division Bench of this court in para 7 of the Judgment in M/s Venkateswara Rice Mill v. Superintending Engineer, APSEB, Hyderabad8 which reads as follows:

"...The liability to pay additional charges under 32.2 is absolute and unqualified. There is no way of putting an end to it unless any other provisions or terms and conditions specifically say so. Far from putting an end to that liability under 32.2, para 34, in our considered view, it only affirms and preserves that liability. There is nothing in the language of para 34 or 32.2. or in the scheme underlying the said terms and conditions which allowed the accrual of interest alone to the exclusion of liability to pay the late payment surcharge. The non-payment of bills within 15 days attracts the additional charge or surcharge under clause 32.2.1. In substance and in effect, it is a penal charge. It continues to have its full play till the dues are cleared..."

and contend that since the Division Bench of this Court has held that the charge under condition No. 32.2.1 is a penal charge, such a penal charge should be supported by substantive provisions of the statute. Although that is the contention, we do not find it necessary to consider this contention based on the isolated observation made by the Division Bench of this Court that the charge under condition No. 32.2.1 is a penal charge, particularly having regard to the clear statement of law made in Kanoria Chemical and Industries Limited case (4 supra) that the rate of late payment surcharge provided by clause 7(b) of the notification dt. 21.4.1990 issued by the U.P. State Electricity Board under Section 49 of the Supply Act is not penal in nature. Clause 7(b) is substantially similar to clause 32.2.1 of the TCS.

32. In Rayalaseema Roller Flour Mills case (5 supra), a Division Bench of this Court, while deciding several writ petitions filed by the high tension consumers of electricity drawing power from APSEB for their industries, challenging the demands raised for collections made by the Board for the years 1990 and 1991 towards additional charges for the belated clearance of the energy bills, had to consider the decisions of the Apex Court in Kerala State Electricity Board case ( 3 supra) and Kanoria Chemical Industries Limited case (4 supra), and in the light of the ratio of the aforementioned two Judgments of the Apex Court, the Division Bench held-

"The decision of Supreme Court in Kerala State Electricity Board (supra) read with the decision in Kanoria Chemicals (supra), puts the principle beyond doubt that the electricity consumers cannot be absolved of the liability to pay interest or late payment surcharge in respect of the bills issued during the period of operation of stay or injunction order or even during the period when the enhanced tariff notification could not be put in force by reason of the decision of the Court striking down the same..."

33. In the light of the direct decisions of the Apex Court in Kerala State Electricity Board case (3 supra) and Kanoria Chemical Industries Limited case (4 supra) dealing with similar demands of the Electricity Boards, there is no need for us to refer to any other Judgments. Nevertheless an attempt was made by Mr. Sanghi, basing on the two-Judge Bench decision of the Apex court in V.V.S.Sugars case (1 supra), to contend that when there is a stay, there is no default or failure and, therefore, condition No. 32.2.1 cannot be applied. The Judgment of the Apex Court in the above case is besides the point. In that case, the Agricultural Income Tax Officer, completed assessments under the provisions of Kerala Agricultural Income Tax Act, 1957, against which the assessee filed appeals. On the assessee's applications, the Assistant Commissioner, the appellate authority, stayed recovery of tax subject to certain conditions. Ultimately appeals were dismissed and balance amount of tax was realized. The Agricultural Income Tax Officer levied penalty for the period when the stay order was in operation. Questioning the same, the appellant filed a writ petition in the High Court of Karnataka, which was ultimately dismissed and that order was confirmed by the Division Bench of that Court. The matter was carried by the assessee to the Apex Court. Before the Apex Court, the question was whether the assessee can be said to be in default during the period for which an order of stay of recovery of the tax due from him is operating and is liable to pay penalty. The Apex Court, on examination of the provisions of Section 41 and 42 of the Kerala Agricultural Income Tax Act, 1957, in paragraph 6, held-

Section 42 speaks of an assessee in default. The question, therefore, is : can an assessee be said to be in default during the period for which an order of stay of recovery of the tax due from him is operating? The answer is indicated in the proviso to sub-section (2) itself. Sub-section (2) empowers the collection of tax from an assessee in default as if it were an arrear of land revenue and as if it were a fine imposed by a Magistrate under the Code of Criminal Procedure. The proviso says that where an assessee or other person has appealed or applied for revision of any order made under the said Act and has complied with an order made by the appellate or the revising authority in regard to the payment of tax, no proceedings for recovery under sub-section (2) may be continued until the disposal of the appeal or revision. Thus, there is recognition that during the period the say is in operation recovery of the tax cannot be effected. It cannot be effected because the order of stay has placed the demand for the tax in abeyance. During the period of the stay, therefore, the assessee is not in default.

34. Consequently, the Apex Court allowed the appeal. We are at a loss to understand how that Judgment would, in any way, advance the contention of the learned Senior Counsel. In that case, having regard to the clear intendment of the law-maker reflected in the proviso to sub-section (2) of section 42 of the Kerala Agricultural Income Tax Act, 1957, the Court held that during the period of stay, the assessee cannot be said to be in default, and consequently no penalty can be imposed for that period. In the first place, the facts and the statute which are involved in that case are altogether different and the ratio of the said Judgment has no application to the facts of this case.

35. The other argument of Mr. Sanghi that interest cannot be levied without the backing of substantive provision in a statute, placing reliance on the Judgment of the Apex Court in M/s Hyderabad Vanaspati Ltd case (6 supra), in our considered opinion, is not well founded. In that case, the question that arose for consideration before this Court was whether subsequent to insertion of Section 21(3-D) in the A.P. Sugarcane (Regulation of Supply and Purchase) Act, 1961 by A.P. Act 25 of 1976 with effect from 29.12.1975, any interest could be levied on arrears of tax under Rule 45(4) of the A.P. Sugarcane (Regulation of Supply and Purchase) Rules, 1961. This Court, taking the view that the application of Section 21(3-D) was restricted to the crushing season 1975-76 during which the amending Act had come into force, answered the question in the affirmative and against the appellant. In the appeal preferred against the Judgment of this Court by the appellant, the Apex Court, while allowing the appeal, held that the Act in question is a taxing statute and, therefore, must be interpreted as it reads, with no additions and no subtractions, on the ground of legislative intendment or otherwise. It was held that Section 21(3-D)(a) provides that Section 21(5) shall not apply in relation to tax levied under section 21(1) on purchase of sugarcane and Section 21(3-D) came into force on the date of commencement of the amending Act, that its provisions are open-ended and are intended to apply upon the commencement of the amending Act with no limitation in time. In that context, the Court held that there being no substantive provision for levy of interest on arrears of tax that applied to purchase of sugarcane made subsequent to the date of commencement of the amending Act, no interest thereon could be so levied on the basis of the application of Rule 45 or otherwise. The law laid down in the above case has no bearing in the decision making in this case, if not for any other reason, but for two reasons; (i) that in this case the Court is not dealing with a taxing statute, and (ii) the impugned demands of additional charges is backed by the statute, for It is well settled that the TCS framed by the Board in exercise of its delegated power under section 49 of the Act are statutory in nature.

36. Before considering the last request of Mr Sanghi to reduce the rate of interest atleast to 18%, we may dispose of the additional contentions raised by Sri Duba Mohan Rao. According to learned counsel, since this court by appreciating the difficulties of the petitioners had granted six instalments in exercise of its extraordinary, equitable and discretionary jurisdiction, it is not permissible for the Board to levy additional charges and interest in terms of condition Nos. 32.2.1 and 34. It would hardly make any difference whether the instalments are granted by the Court or by the Board. What is relevant is whether the demand made under the impugned notification is sustained or not ultimately. Since in the instant case, the impugned notification was upheld and the enhanced rate is sustained, the principle of restitution, as enunciated by the Privy Council in Rodger v. Comptoir D'Escompte de Paris,9 which has been consistently followed subsequently, by the Indian Courts including the Apex Court, comes into play and according to the principles of restitution, it is the duty of the Court to ensure that the party to the lis does not suffer any unmerited hardship on account of an order passed by the Court as held in Kerala State Electricity Board case (3 supra). The Court should ensure that a party, who had suffered on account of decision of the Court, since finally reversed, should be put back to the position, as far as practicable, in which he would have been if the decision of the Court adversely affecting him had not been passed.Looking from that angle, simply because this Court had, at a particular point of time, granted six instalments, that circumstance itself would not absolve the petitioners from the liability flowing from condition Nos. 32.2.1 and 34. Therefore, we do not find any merit in the above contention of Sri Duba Mohan Rao.

37. We do not find any merit in the other contention of Sri Duba Mohan Rao that the demand in a sum of Rs,2,92,532-05 ps is untenable, because, there cannot be any additional charge on an additional charge. Suffice it to state that condition No. 32.1 provides that the bill may include not only electricity consumption charges but also any other charge in connection with supply of electricity. Therefore, under condition No. 32.2.1 additional charge can be levied not only on the consumption charge but also any other outstanding additional charge or charges.Therefore, the above demand raised by the Board for the period commencing from 20.7.1990 to 20.12.90 at the rate of 24% on the sum of Rs. 76,05,029/- being the interest which became payable prior to 31.5.90 due to grant of six instalments for payment, cannot be said to be one without any authority of law or dehors condition No. 32.2.1.

38. This takes us to the above noticed request of Mr. Sanghi to atleast reduce the rate of interest to 18% as has been done in Kanoria Chemical and Industries Limited case (4 supra), keeping in mind the hardship of the petitioners and in order to do complete justice. In acceding to the above request of Mr. Sanghi, we have more than one impediment at the threshold itself. Under Art. 142 of the Constitution, the Supreme Court has extra-ordinary power to pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it. Thus, the power of the Supreme Court under Art. 142 of the Constitution is meant to supplement the existing legal frame-work - to do complete justice between the parties - and not to supplant it. In Delhi Development Authority v. Skipper Construction Company Pvt. Ltd,10 it is held that Art. 142 is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. In the first place, this Court cannot assume the kind of plenary power vested in the Supreme Court under Article 142 in the purported exercise of doing complete justice. Secondly, the factual background of this case does not persuade us to grant even the limited relief of reduction in the rate of interest. The litigation between the petitioners and the Board is of several decades longevity, and it is stated by Sri N.Subba Reddy, that from 1983-84, the petitioners have been withholding the dues with impunity resorting to unjustified legal actions, one after the other. Apart from this, we find from the materials placed before us that the Supreme Court in its order dated 9.5.1999 in I.A. Nos. 1 and 2 of 1985 in C.A. Nos. 2569 and 2570 of 1985, permitted the petitioners to pay 50% of the amount due under the subsisting bank guarantees and represent to the Board for grant of time to pay the balance amount. Accordingly, the petitioners themselves made representations to the Board to grant instalments. In consideration of the representations of the petitioners, six monthly instalments were granted. Since the instalments are granted as requested by the consumer-petitioners, the insistence of the Board that they should pay the interest at the prescribed rate under condition No.34 cannot be condemned as arbitrary or unreasonable. The petitioners cannot be permitted to approbate and reprobate. It is trite that the petitioners, as business concerns, must have utilized the money withheld by them gainfully in their commercial activities all these years. On the other hand, since the petitioners have not paid the lawful dues to the Board in time, the Board must have suffered financial loss considerably. In the aforesaid circumstances, the request of Mr. Sanghi to reduce the rate of interest atleast to 18% does not appeal to us. The existence of the situation which persuaded their Lordships of the Supreme Court in Kanoria Chemical and Industires Limited case (4 supra) to reduce the rate also does not exist in the present case. Added to this, since we have found condition Nos. 32.2.1 and 34 as intra vires Section 49 of the Supply Act and since the Board is entitled to levy additional charges under condition No. 32.2.1 and interest under condition No.34, this Court would not be justified in reducing the rate of interest prescribed by the Board in exercise of its delegated power. In a matter like this, the Court cannot act like a benevolent despot. Any relief that may be granted to a party by the Court should have the constitutional and statutory backing and it cannot be dehors the same. The Court granting the relief should find a basis in law which form an edifice to grant the relief. The power vested in this Court under Art. 226 cannot be exercised to override any express provision like the one contained in condition Nos. 32.2.1 and 34. Further, this Court in exercise of the power under Art. 226 cannot exercise the kind of power conferred upon the Supreme Court under Art. 142 of the Constitution. In E.S.P. Rajaram and Others v. Union of India,11 a Constitution Bench of the Supreme Court held that though the exercise of the power under Art.142 to do complete justice is left completely to the discretion of the highest Court of the country and its order or decree is made binding on all the Courts or Tribunals throughout the territory of India, that power is not to be exercised to override any express provision of law.

39. In the result and for the foregoing reasons, we do not find any merit in the writ petitions and they are accordingly dismissed with no order as to costs.