JHARKHAND STATE ELECT. BOARD & ORS.versusM/S. LAXMI BUSINESS & CEMENT CO.P. LTD. & ANR.

                      [2014] 3 S.C.R. 453


       JHARKHAND STATE ELECT.BOARD & ORS.                            A
                                v.
 M/S. LAXMI BUSINESS & CEMENT CO.P. LTD. & ANR.
             (Civil Appeal No. 2909/2014)

                     FEBRUARY 28, 2014
                                                                     B
      [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

     ELECTRIC/TY LAWS:

     Power of Tariff Fixation - Held: Transferred exclusively to     c
SERC and State Electricity Board is completely denuded of
this power - Before coming of Electricity Act, 2003, Electricity
Act, 1910 and thereafter Electricity (Supply) Act, 1948 were
in force - It was the Electricity Board in the respective States
which were supplying electricity to the consumers and                D
determining the operation rates at which the electricity was to
be supplied - After the enactment of Electricity Act, 2003,
power to frame tariff is given to the SERC - 2003 Act has
distanced the Government from all forms of regulations,
including tariff regulation which is now specifically assigned       E
to SERC - Thus, the State Electricity Boards have no power
whatsoever to frame tariff which is under the exclusive domain
of the SERC - Electricity Act, 2003 - Electricity Act, 1910 -
Electricity (Supply) Act, 1948.                             ·

     Fixation of tariff by SERC - Issue of demand charge from        F
HT consumers - Held: The 1994 HT Agreement was not
saved under Electricity Act, 2003 and the tariff structure - Issue
of demand charge from HT consumers was considered and
given effect to in the Tariff Order dated 27. 12. 2003 which
came into effect on 1.1.2004.                                        G

     Delay/Laches: Delay in filing the writ petitions - Bills
raised by the JSEB on the basis of Clause 4(c) of the 1994
HT Agreement, even after the formulation of 2004 Tariff
                              453                                    H
    454     SUPREME COURT REPORTS                [2014] 3 S.C.R.

A Schedule - Payment made under threat of disconnectiun - Writ
  petition - Direction by High Court to appellant to refund the
  excess amount charged under the bills raised for earlier
  period - Challenged on the ground that there was delay in filing
  of writ petition by consumers - Held: Delay was duly explained
B - The consumers had paid the amount of bills raised by JSEB
  under protest because of the threat of disconnection - While
  doing so, they had raised specific plea with the JSEB that it
  was now supposed to raise the bills in accordance with the
  2004 Tariff Schedule - The matter remained under
c consideration at the level of JSEB which kept approaching the
  Court as well as SERC seeking clarification of 2004 Tariff
  Schedule.

       In the year 1994, HT Agreement was entered into
  between Bihar State Electricity Board (predecessor in
D interest of JSEB) and the consumers which, inter-alia,
  stipulated the tariff that was to be charged by the JSEB
  from the consumers for supply of electricity. In Clause
  4(c) of the Agreement, there was a provision for Minimum
  Guarantee Charges. In the year 2003, Electricity Act was
E enacted. The power to frame tariff under this Act was
  given to SERC. SERC passed order framing the new tariff
  schedule (2004 Tariff Schedule) under Section 86 of the
  Electricity Act. The grievance of the consumer-
  respondent was that the JSEB continued to send the bills
F as per the Clause 4(c) referred to in the agreement which
  were paid by the consumers under protest. In May 2010,
  writ petitions were filed by the consumers for quashing
  of the energy bills on the ground that it had wrongly been
  raised as per Clause 4(c) of the Agreement which had
G ceased to have any effect on the framing of 2004 Tariff
  Schedule by the SERC. The JSEB, however, contended
  that the HT agreement entered into with the consumers
  still survived as the 2004 Tariff Schedule saved this
  Agreement. The High Court allowed the writ petitions.
H
   JHARKHAND STATE ELECT. BOARD v. LAXMI                  455
       BUSINESS & CEMENT CO.P. LTD.

     In the instant appeals, the questions which arose for       A
consideration were: whether after the enactment of the
Electricity Act, 2003 which came into force on 10.6.2003
and after passing of the new tariff order dated 27.12.2003
by Jharkhand State Electricity Regulatory Commission
(SERC) as per the Act of 2003, the State Electricity Board       B
can still charge a tariff determined by itself; whether the
issue of demand charge to HTS - 1 category of
consumeJ!hhas been left non-considered by the SERC
i1J.t~e,~riff::order dated 27 .12.2003 so that the same may
be'\~qnt~:rl'ued in the manner existed in the State or           c
whether th.e same has been considered and given affect
to in the tariff order dated 27.12.2003 which came into
effect from 1.1.2004; what would be the effect of Section
185 (Repeal and Saving Clause) of the Electricity Act 2003
upon the HT supply Agreement entered upon the Board              D
and the Consumer prior to Electricity Act, 2003.

    Dismissing the appeals; the Court

    HELD: 1. Re.: Power of SERC under Electricity Act
2003.                                                            E
      Before Electricity Act, 2003 was enacted, Indian
Electricity Act, 1910 and thereafter Electricity (Supply) Act,
1948 was passed. It was the Electricity Board in the
respective States which were supplying electricity to the
                                                                 F
consumers and determining the operation rates at which
the electricity was to be supplied. Section 49 of the Act,
1948 empowered the Board to supply electricity to any
person upon such terms and conditions as the Board
thinks fit and made for the purposes of such supply from
time to time and were empowered to frame uniform tariffs         G
for the purpose of such supply. This power to frame tariff
under Section 49(1) of the Act 1948 included the power
to fix minimum guarantee charges. In State of Bihar, such
rates were fixed in the 1993 tariff. It, inter-alia, provided
for tariff for HT consumers. Three categories of HT              H
    456     SUPREME COURT REPORTS                 [2014] 3 S.C.R.

A consumers were mentioned there. HTS-I, II and Ill. Both
  the consumers in the instant appeals were put in HT-I
  category. HT Agreement dated 26.4.1994 was entered into
  between the Board and the consumers. As per Clause 4
  of this Agreement, the consumers were to pay to the
B Board for the energy so supplied and registered or taken
  to have been supplied at the appropriate rates applicable
  to the consumers according to the tariff framed by the
  Board and in force from time to time. It was subject to the
  minimum contract demand applicable for the category of
c supply category in which the consumers felt. Clause 4(b)
  explained that the maximum demand of the coM\Jmer for
  each month shall be the largest total amount of kilovolt
  amperes (KVA) that was delivered to the consumers at
  the point of supply during any consecutive 30 minutes
  in the months. As per clause 4(c), JSEB had been raising
0
  energy bills on the basis of 75% of the contract demand.
  [Para 6] [463-F-H; 464-A-G]

         1.2. After the Electricity Act, 2003 was enacted, power
    to frame tariff was given to the SERC. This power was
E   statutorily conferred upon the SERC under the Act.
    Before the passing of this Act, Electricity Regulatory
    Commission Act, 1998 was enacted and under Section
    17 of the said Act, Jharkhand SERC was constituted by
    the Government of Jharkhand. Its functions and duties
F   were notified by the Government as per Section 22 of the
    Electricity Regulatory Commission Act. On the passing
    of the Electricity Act, 20.03, Electricity Act 1910, Electricity
    (Supply) Act 1948 and Electricity Regulatory Commission
    Act, 1998 were repealed. At the same time, Act 2003
G   recognized the SERCs constituted under the 1998 Act.
    2004 Tariff Schedule framed by the SERC was in exercise
    of powers conferred upon it under Section 86 (a) of the
    Act. The Act, 2003 is an exhaustive code on all matters
    concerning electricity which also provides for
H   "unbundling" of State Electricity Boards into separate
   JHARKHAND STATE ELECT. BOARD v. LAXMI               457
       BUSINE$S & CEMENT CO.P. LTD.
utilities for generation, transmission and distribution. A
Further, Regulatory regime is entrusted to the SERC
which are given vide ranging responsibilities. This Act
has distanced the Government from all forms of
regulations, including tariff regulation which is now
specifically assigned to SERC. It is, thus, beyond the pale B
of doubt that the State Electricity Boards have no power
whatsoever
      .
              to frame tariff which is under the' exclusive
domain of the SERC. This legal position has been
judicially recognized. [Paras 7 to 10) [464-G-H; 465-A-C .
and F; 467-D]                                               c
     PTC India Ltd. v. Central Electricity Regulatory
Commission (2010) 4 SCC 603: 2010 '(3) SCR 609; Gujarat
Urja Vikas Nigam Ltd. v. Essar Power Ltd. (2008) 4 SCC 755:
2008 (4) SCR 822; AP. TRANSCO v. Sai Renewable Power
(P) Ltd.. (2011) 11 SCC 34: 2010 (8) SCR 636 - relied on.     D

2. Re: Whether the Agreement dated 26.4.1994 is saved
by the 2004 Tariff Schedule?

  . 2.1. The SERC fixed the tariff on the request of the . E
JSEB itself when it approached the SERC for this
purpose. In the Tariff Petition filed by the JSEB before the
SERC, the JSEB did not propose to continue the manner
of 75% of contract demand and the SERC allowed the
demand charge 140-KV-Month. The Tariff Order has
Annexure 5.1 containing the 'Tariff Schedule'. This Tariff F
Schedule which is the final outcome of the tariff process
is binding on the State as well. However, the JSEB itself
in its application/reference to the SERC did not ask for
fixing any minimum guarantee charges. The JSEB in its
proposal for fixation of tariff for"2003-04, submitted before G
the SERC indicated both the existing tariff and the tariff
proposed by it in respect of all consumers, including all
categories of HTS (High Tension Service) consumers.
The SERC after undertaking the necessary exercise, fixed
the tariff of all categories. The tariff proposed by the H
   458     SUPREME COURT REPORTS             [2014] 3 S.C.R.


A Board tor HTS-I consumers along with existing tariff was
  reproduced in Tables 5.28 and 5.29 of the 2004 Tariff
  Schedule which clearly reflected that the aspect of
  minimum guarantee charges was duly considered by the
  SERC. [Paras 12, 13] [469-C-F; 470-G-H; 471-A]
B
       2.2. The tariff order further revealed that the SERC
  had even compared the proposal of JSEB with the tariff
  prevailing in other States in India and after detailed
  analysis thereof, it approved the tariff for HTS consumers
  which is mentioned in table 5.31 of the 2004 Tariff
C Schedule. Therefore, it cannot be said that the SERC was
  oblivious of the clause relating to minimum guarantee
  charges which JSEB was charging from its consumers
  as per the earlier agreements entered into with them. The
  position would become crystal clear from the discussion
D in the 2004 Tariff Schedule wherein the SCRC gave
  specific reasons for revising and approving the tariff for
  HTS consumers. The High Court rightly held that the
  SERC has considered the proposal of the Electricity
  Board with respect to their claim for Demand Charge and
E the manner in which it will be charged. The Board cannot
  take help of Clause 5.1. wherein it was observed that
  some of the matters have not been dealt with and they
  shall continue to be the same as they were in existence
  in the State because of the reason that there is a specific
F proposal made by the Electricity Board for the Demand
  Charge as well as the manner In which it will be charged
  and this proposal was considered by the SERC and
  thereafter Tariff Order has been issued. The JSEB had
  even filed clarification applications before the SERC
G contending that having regard to the Clause 4(c) of the
  Agreement with the HT-I consumers, the maximum
  demand charges would be those prescribed under
  Clause 4(c) of the Agreement. These applications were
  specifically rejected by the SERC. No appeal was
H preferred by the JSEB challenging those orders. It is,
   JHARKHAND STATE ELECT. BOARD v. LAXMI                 459
        BUSINESS & CEMENT CO.P. tTD.
therefore, too late in the day for the JSEB to now argue        A
that this aspect of minimum guarantee charge has not
been dealt with by the SERC in the 2004 Tariff Schedule.
[Para 14 to 16] [473-C-D; 475-G-H; 476-A-E]

3. Re.: Effect of Section 185 of the Electricity Act 2003.
                                                                B
    The tariff in force during the per-iod was Tariff Order
dated 27.12.2003 for the period 2003-04 which was having
force of law under the Electricity Act 2003. Thus, even if it
is assumed on the basis that the statutory agreements
entered into earlier were saved, the agreement in question      C
stood replaced by 2004 Tariff Schedule. Even the
argument based on Section 185 of the Electricity Act, 2003
would not bring any change to the results of this case.
There was no fault with the judgment of the High Court
appealed against. [Paras 19, 20] [479-F-G; 481-A-B]             D

   State of Punjab vs. Mohar Singh 1955 (1) SCR 893;
BSES v. Tata Power Co. Ltd. (2004) 1 SCC 195: 2003 (4)
Suppl. SCR 932 - relied on.
     4. It was submitted that there was delay in filing the     E
writ petitions inasmuch as bills raised by the JSEB on the
basis of Clause 4(c) of the 1994 Agreement, even after the
formulation of 2004 Tariff Schedule were being paid by
the consumers and they approached the Court by filing
writ petitions only in the year 2010 and that in such           F
scenario, the High Court at least should not have directed
the appellants to refund the excess amount charged
under the bills raised for earlier period and· it would be
unjust enrichment to the consumers who .would have
recovered the amount from the user of the electricity. In       G
so far as delay in filing the writ petition is concerned, it
appears from the chronology of events that the same
has been duly explained. It is not in doubt that the
consumers had paid the amount of bills raised by JSEB
under protest because of the threat of disconnection.           H
     460      SUPREME COURT REPORTS               [2014] 3 S.C.R.

 A While doing so, they had raised specific plea with the
   JSEB that it was now supposed to raise the bills in
   accordance with the 2004 Tariff Schedule. The matter
   remained under consideration at the level of JSEB which
   kept approaching the Court as well as SERC seeking
 B clarification of 2004 Tariff Schedule. The clarification
   applications were filed which were dismissed by the
   SERC. However, as the JSEB did not judge from its stand
   even after the dismissal of these applications, the
   consumers approached the Court and filed the Writ
 c Petitions. The writ petitioners have thus furnished
   satisfactory explanation for approach the Court. The plea
   of unjust and enrichment will not be available to the
   appellants. In the first place, no such plea was raised
   before the High Court either before the S1ngle Judge or
   the Division Bench. In the Special Leave Petition, this
 0
   submission was made for the first time at the time of
   hearing of the appeals. Moreover, it is not a case of
   payment of tax which is a burden passed on the
   consumers. [Paras 21 to 23) (481-B-H; 482-A-B]

 E       Himachal Pradesh State Electricity Regulatory
     Commission & Anr. v. Himachal Pradesh State Electricity
     Board (2013) 12 SCALE 397; Mafatlal Industries Ltd. vs.
     Union of India (1997) 5 SCC 536 - referred to.

                         Case Law Reference:
 F
           2010 (3) SCR 609           relied on        Para 9
           2008 (4) SCR 822           relied on        Para 10
           2010 (8) SCR 636           relied on        Para 10
 G
           (2013) 12 SCALE 397        referred to      Para 17
           1955 (1) SCR 893           relied on        Para 17
           2003 (4 ) Suppl. SCR 932   relied on        Para 19
'H
   JHARKHAND STATE ELECT. BOARD v. LAXMI                    461
       BUSINESS & CEMENT CO.P. LTD.

     (1997) s sec 536                referred to      Para 23       A

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2909 of 2014.

    From the Judgment & Order dated 05.07.2011 of the High
Court of Jharkhand at Ranchi in LPA No. 466 of 2010.                B
                               WITH
Civil Appeal No. 2910, 2911 and 2913 of 2014.

    Ajit Kumar Sinha, M.L. Verma, M.S. Mittal, A.K. Ganguly,        C
Ashwarya Sinha, Ambhoj Kumar Sinha, Himanshu Shekhar,
Faisal Khan, M.P. Jha, Ram Ekbal Roy, Harshvardhan Jha,
Dileep Pillai, Kaushik Poddar, Shankar Lal Aggarwal,
Devashish Bharuka, Jasmeet Kuar, Chandan Kumar Rai, Ravin
Dubey for the appearing parties.
                                                                    D
    The Judgment of the Court was delivered by

    A.K. SIKRI, J. 1. Delay condoned.

     2. Leave granted.
                                                                    E
     3. The appellant in both the cases is Jharkhand State
Electricity Board (JSEB), which is aggrieved by the common
judgment dated 5th July 2011 passed by the High Court of
Jharkhand in two appeals. These appeals were preferred by
the appellant JSEB against the orders dated 17th February           F
2010 passed by the learned Single Judge of that court in the
two Writ Petitions which were filed by M/s. Laxmi Business &
Cement Co. Pvt. Ltd. and M/s. Laxmi lspat Udyog (arrayed as
respondent No.1 in each appeal and hereinafter referred to as
the 'consumers'). These respondents had questioned the              G
validity of the bills raised by the JSEB in those Writ Petitions,
primarily on the ground that the bills were contrary to and in
exces~ of the tariff fixed by the Jharkhand State Electricity
Regulatory Commission (hereinafter referred to as the 'SERC").
Their contention was accepted by the learned Single Judge           H
    462      SUPREME COURT REPORTS                   [2014] 3 S.C.R.


A and the order of learned Single Judge is affirmed by the
  Division Bench as well.

          4. To give a glimpse of the controversy involved, in the year
    1994 HT Agreement was entered into between Bihar State
B   Electricity Board (predecessor in interest of JSEB) and the
    consumers which, inter-alia, stipulated the tariff that was to be
    charged by the JSEB from the consumers for supply of
    electricity to these consumers by the JSEB. In Clause 4(c) of
    the Agreement there was a provision of Minimum Guarantee
    Charges. In the year 2003, Electricity Act was enacted.
C   Indubitably, power to frame tariff under this Act is given to
    SERC. SERC passed order dated framing the new tariff
    schedule ('2004 Tariff Schedule' for short) under Section 86 of
    the Electricity Act (hereinafter referred to as the Act). The
    JSEB, however, continued to send the bills as per the Clause
D   4(c) mferred to in the agreement which were paid by the
    consumers under protest. In May 2010, Writ Petitions were
    filed by the consumers for quashing of the energy bills on the
    ground that it had wrongly been raised as per Clause 4(c) of
    the Agreement which had ceased to have any effect on the
E   framing of 2004 Tariff Schedule by the SERC. The JSEB,
    however, contended that the HT agreement entered into with
    the consumers still survived as the 2004 Tariff Schedule saves
    this Agreement.

F      5. Since the Writ Petitions of the consumers were allowed
  and the order of the learned Single Judge is already upheld by
  the Division Bench, it is obvious that pleas raised by the JSEB
  have not found favour with the High Court. Before us as well,
  same very contentions were raised which were raised by the
G JSEB in the High Court. Additionally, it was also contended that
  even Section 185 (2)(a) of the Act read with Section 6(8) of
  the General Clauses Act categorically protects the previous
  opera.tion of the earlier enactment, duly done or saved
  thereunder.

H It is, thus, clear that questions which arjse for consideration in
   JHARKHAND STATE ELECT. BOARD v. LAXMI                    463
  BUSINESS & CEMENT CO.P. LTD. [A.K. SIKRI, J.]

these appeals are the following:                                   A

    (i) Whether after the enactment of the Electricity Act, 2003
which came into force on 10.6.2003 and after passing of the
new tariff order dated 27.12.2003 by Jharkhand State Electricity
Regulatory Commission as per the Act of 2003 can the State         B
Electricity Board still charge a tariff determined by itself?

     (ii) Whether the issue of demand charge to HTS - 1
category of consumers has been left non-considered by the
State Commission in the tariff order dated 27.12.2003 so that
the same may be continued in the manner existed in the State       C
or whether the same has been considered and given aff'ect to
in the tariff order dated 27.12.2003 which came into effect from
1.1.2004?

     (iii) What would be the effect of Section 185 (Repeal and     0
Saving Clause) of the Electricity Act 2003 upon the HT supply
Agreement entered upon the Board and the Consumer prior
to Electricity Act, 2003?

     6. While dealing with these questions, we will narrate
further seminal facts and the details submissions of the learned   E
counsel for the parties of either side.

    1. Re.: Power of SERC under Electricity Act 2003.

     Legal position contained in Act of 2003 is hardly in
                                                                   F
dispute. Before this Act was enacted in the year 2003, we had
Indian Electricity Act, 1910 and thereafter Electricity (Supply)
Act, 1948 was passed. It is the Electricity Board in the
respective States which were supplying electricity to Jhe
consumers and determining the operation rates at which the
                                                                   G-
electricity was to be supplied. Section 49 of the Act, 1948
empowered the Board to supply electricity to any person upon
such terms and conditions as the Board thinks fit and made
for the purposes of such supply from time to time and were
E'mpowered to frame uniform tariffs for the purpose of such
                                                                   H
    464       SUPREME COURT REPORTS                    [20141 3 S.C.R.


A supply. This power to frame tariff under Section 49( 1) of the Act
  1948 included the power to fix minimum guarantee charges. In
  State of Bihar, such rates were fixed in the year 1993 tariff. It,
  inter-alia, provided for tariff for HT consumers. Three categories
  of HT consumers were mentioned there. HTS-I, II and Ill. Both
B the consumers in the instant appeals were put in HT-I category.
  HT Agreement dated 26.4.1974 was entered into between the
  Board and the consumers. As per Clause 4 of this Agreement,
  the consumers were to pay to the Board for the energy so
  supplied and registered or taken to have been supplied at the
c appropriate rates applicable to the consumers according to the
  tariff framed by the Board and in force from time to time. It was
  subject to the minimum contract demand applicable for the
  category of supply category in which the consumers fell. Clause
  4(b) explained that the maximum demand of the consumer for
D each month shall be the largest total amount of kilovolt amperes
  (KVA) that was delivered to the consumers at the point of
  supply during any consecutive 30 minutes in the months. Since
  the JSEB has worked out the charges as per Clause 4 (c) which
  it is demanding, we reproduce the said clause hereinbelow:

E               "4(c) Maximum demand charges for supply in any
          month will be based on the maximum KVA demand for the
          month or 75 per cent of the contract demand whichever is
          higher, subject to provision of clause 13. For the first twelve
          months service the maximum demand charges for any
F         month, will however, be based on the actual monthly
          maximum demand for that month."
        Thus, as per the aforesaid clause, JSEB had been raising
    enetgy bills on the basis of 75% of the contract demand.
G       7. As mentioned above, after the Electricity Act, 2003 was
  enacted, power to frame tariff is given to the SERC. This power
  is statutorily conferred upon the SERC under the Act. However,
  it would be relevant to mention herein that before the passing
  of this Act, Electricity Regulatory Commission Act, 1998 was
H enacted and under Section 17 of the said Act, Jharkhand State
   JHARKHAND STATE ELECT. BOARD v. LAXMI                      465
  BUSINESS & CEMENT CO.P. L~D. [A.K. SIKRI, J.]
Electricity Regulatory Commission was constituted by the              A
Government of Jharkhand vide Notification No.1763 dated
August 22, 2002. Its functions and duties were notified by the
Government as per Section 22 of the Electricity Regulatory
Commission Act.
                                                                      .B
     8. On the passing of the Electricity Act, 2003, Electricity
Act 1910, Electricity (Supply) Act 1948 and Electricity
Regulatory Commission Act, 1998 have been repealed. At the
same time, Act 2003 recognizes the SERCs constituted under
the 1998 Act. The object clause of this Act reads as under:
                                                                      c
     "An Act to consolidate the laws relating to generation,
     transmission, distribution, trading and use of electricity and
     generally for taking measures conducive to development
     of electricity industry, promoting competition therein,
     protecting interest of consumers and supply of electricity       D
     to all areas, rationalization of electricity tariff, ensuring
     transparent policies regarding subsidies, promotion of
     efficient and environmentally benign policies, constitution
     of Central Electricity Authority, Regulatory Commissions
     and establishment of Appellate Tribunal and for matters          E
     connected therewith or incidental thereto."
            I



      9. It is also not in dispute that 2004 Tariff Schedule framed
by the SERC is in exercise of powers conferred upon it under
Section 86 (a) of the Act. In PTC India Ltd. V. Central
Electricity Regulatory Commission (2010) 4 SCC 603 this               F
Court has categorically held that Act, 2003 is an exhaustive code
on all matters concerning electricity which also provides for
"unbundling" of State Electricity Boards into separate utilities
for generation, transmission and distribution. Further,
Regulatory regime is entrusted to the State Electricity               G
Regulatory Commissions which are given vide ranging
responsibilities. This Act has distanced the Government from
all forms of regulations, including tariff regulation which is now
specifically assigned to SERC. Relevant observations, outlining
the scheme of this Act, are reproduced below:                         H
    466       SUPREME COURT REPORTS                     (2014] 3 S.C.R.


A         "The 2003 Act is enacted as an exhaustive code on all
          matters concerning electricity It provides for unbundling''
          of SEBs into separate utilities for generation, transmission
          and distribution. It repeals the Electricity Act, 1910. the
          Electricity (Supply) Act, 1948 and t~1e Electricity Regulatory
B         Commissions Act, 1998. The 2003 Act, in furtherance of
          the policy envisaged under the Electricity Regulatory
          Commissions Act, 1998 (the 1998 Act), mandated the
          establishment of an independent and transparent
          regulatory mechanism, and has entrusted wide-ranging
c         responsibilities with the Regulatory Commissions. While
          the 1998 Act provided for independent regulation in the
          area of tariff determination: the 2003 Act has distanced
          the Government from all forms of regulation, namely,
          licensing, tariff regulation, specifying Grid Code, facilitating
          competition through open access, etc."[Paragraph 17)
D
          The 2003 Act contains separate provisions for the
          performance of dual functions by the Commission.
          Section61 is the enabling provision for framing of
          regulations by the Central Commission: the determination
E         of terms and conditions of tariff has been left to the domain
          of the Regulatory Commissions under Section 61 of the
          Act whereas actual tariff determination by the Regulatory
          Commissions is covered by Section 62 of the Act. This
          aspect is very important for deciding the present case.
F         Specifying the terms and conditions for determination of
          tariff is an exercise which is different and distinct from
          actual tariff determination in accordance with the
          provisions of the Act for supply of electricity by a
          generating company to a distribution licensee or for
G         transmission of electricity or for wheeling of electricity or
          for retail sale of electricity.

          26. The term "tariff' is not defined in the 2003 Act. The term
          "tariff' includes within its ambit not only the fixation of rates
          but also the rules and regulations relating to it. If one reads
H
   JHARKHAND STATE ELECT. BOARD v. LAXMI                       467
  BUSINESS & CEMENT CO.P. LTD. [AK. SIKRI, J.]
     Section 61 with Section 62 of the 2003 Act, it becomes            A
     clear that the appropriate Commission shall determine the
     actual tariff in accordance with the provisions of the Act,
     including the terms and conditions which may be specified
     by the appropriate Commission under Section 61 of the
     said Act. Under the 2003 Act, if one reads Section 62 with        B
     Section 64, it becomes clear that although tariff fixation like
     price fixation is legislative in character, the same under the
     Act is made applicable vide Section 111. These
     provisions, namely, Sections 61, 62 and 64 indicate the
     dual nature of functions performed by the Regulatory              c
   - Commissions viz. decision-making and specifying terms
     and conditions for tariff determination."[Paragraph 25,26]
     [Emphasis supplied]

     10. It is, thus, beyond the pale of doubt that the State
Electricity Boards have no power whatsoever to frame tariff            D
which is under the exclusive domain of the Commission. This
legal position has been judicially recognized. [See Gujarat Urja
Vikas Nigam Ltd. V. Essar Power Ltd., (2008) 4 SCC 755 and
A.P. TRANSCO v. Sai Renewable Power (P) Ltd. (2011) 11
sec 34.                                                                E

     11. Notwithstanding the aforesaid legal position, JSEB
contends that agreement entered into with the consumers in the
year 1994 is saved and the JSEB has right to charge the tariff
as per Clause 4 (c) thereof. According to the JSEB this is the         F
position because of the reason that Clause 1.4 of the 2004 Tariff
Schedule framed by the SERC provides for such a position and
further that even Section 186 of the Act 2003 saves this
agreement. On these twin aspects, we have already framed
question Nos. 2 and 3 above and would now proceed to deal              G
with them.

     2. Re: Whether the Agreement dated 26.4.1994 is saved.
by the ,2004 Tariff Schedule?

     Mr. Sinha, learned senior counsel for the JSE.B submitted         H
    468      SUPREME COURT REPORTS                   [2014] 3 S.C R


A that in the 2004 Tariff Schedule there was no such provision
  which is contained in the agreement dated 26.4.19994
  particularly in Clause 4(c) and in the absence thereof in the tariff
  schedule energy bills raised on the basis of 75 % contract
  demand was saved. It was submitted that the Agreement dated
B 26.4.1994 is a statutory agreement as it was under the Act of
  1948. The learned senior counsel further submitted that it had
  never been the case of consumers that the aforesaid provision
  was repealed, repudiated or destroyed. It has not happened
  either. For this purpose, Mr. Sinha sought to rely upon
c averments made in the Writ Petitions filed by the consumers
  and on the basis it was contended that even the consumers
  admitted that the provision of 75% of contract demand is
  abs~nt and not provided iri the 2004 Tariff Schedule. He also
  placed strong reliance on Clause 1.4 of 2004 Tariff Schedule
D of SERC which reads as under:
          "All other Terms and Conditions in respect of Meter Rent,
          Supply at Lower Voltage, Capacitor Charge, Electricity
          Duty, Rebate, Security Deposit, Surcharge for exceeding
          contract demand etc., shall remain the same as existing
E         in the State."

          Further, the tariff order 2003-04, in Clause 5 under the
          heading Design of Tariff Structure and Analysis of Tariff,
          particularly at Clause 5.4 has dealt with the two part tariff
F         structure and Minimum Guarantee Charges wherein it was
          stated that "Ideally, the fixed/demand charge should be
          levied in proportion to the demand placed by an individual
          consumer on the system. This is so because it facilitates
          the utility in designing an appropriate system to cater to
          the supply needs of a consumer and is therefore a just and
G
          fair mechanism for recovering fixed costs of the system."
      Mr. Sinha further argued that Clause 4 {c) of the High
  Tension Agreement dated 26.8.2004 which the Respondent
  Consumer has signed with the Board much after 1.1.2004,
H when the Tariff Order 2003-04 came into effect, clearly specified
    JHARKHAND STATE ELECT. BOARD v. LAXMI                     469
   BUSINESS & CEMENT CO.P. LTD. [AK. SIKRI, J.]
  that after commencement of power supply, the respondent shall      A
  be liable to pay KVA/Maximum Demand Charges on actual
  consumption basis in the first 12 months and after that on the
  basis of 75% of the contract demand or recorded demand,
  whichever is higher. This is uniformly applied to similarly
· situated all the HTS-1 consumers.                                  B

         12. In order to appreciate this argument, we will have to
  construe relevant provision of 2004 Tariff Schedule as framed
   by the SERC. It would be pertinent to observe that the SERC
  fixed the tariff on the request of the· JSEB itself when it
  approached the SERC for this purpose. We find that in the Tariff C
   Petition filed by the JSEB before the SERC, the JSEB did not
  propose to continue the manner of 75% of contract demand and
  the SERC allowed the demand charge 140-KV-Month. On
  perusal of the Tariff Order, it becomes apparent that this is
  divided in different sections viz., section 1 is the chapter D
  containing 'introduction', section 2 is the chapter containing
  'ARR' i.e. the Annual Revenue Requirement and tariff proposal
  submitted by the Board, section 3 is the chapter containing
  'objections' received from the stake holders, section 4 is the
  chapter containing 'Commission's analysis on ARR', Section
  5 is the chapter containing 'design of tariff structure and analysis
  of tariff, section 6 is the chapter containing 'Directions to the . ·
  JSEB' and finally there is Annexure 5.1 containing the 'Tariff
  Schedule'. This Tariff Schedule which is the final outcome of
. the tariff process is binding on the State as well. The relevant
  portion of the Annexure 5. 1 of the tariff order wherein the State
  Commission has dealt with the tariff applicability upon the High
  Tension Service (HTS) consumers i.e. category applicable to
  Respondent No.1 is reproduced below:

     "Category: High Tension Service (HTS)

     1. Applicability

     For consumers having contract demand above 100 kVA
     2. Character of service
    470       SUPREME COURT REPORTS                [2014] 3 S.C.R.

A         50 cycles, 3 Phase at 6.6. KV/11 Kv/33 kV or 132 kV.

          3. Tariff

          Tariff for HTS

B         DESCRIPTION                      TARIFF*

          RS./kVA/month                    DEMAND CHARGE

          HTS                              140
c
                                           ENERGY CHARGE

          KWh/month                        Rs/KWh
D
          All consumption                  4.00




E                                          Monthly minimum
                                           charge

          For Supply at 11 and 33 kV        Rs.250/kVA

          For Supply at 132 KV              Rs.400/kVA
F
       13. However, as stated above, the JSEB itself in its
  application/reference to the SERC did not ask for fixing any
  minimum guarantee charges. It would be relevant to mention
  that the JSEB in its proposal for fixation of tariff for 2003-04,
G submitted before the Regulatory Commission, indicated both
  the existing tariff and the tariff proposed by it in respect of all
  consumers, including all categories of HTS (High Tension
  Service) consumers. The SERC after undertaking the necessary
  exercise, fixed the tariff of all categories. The tariff proposed
H by the Board for HTS-I consumers along with existing tariff is
  JHARKHAND STATE ELECT. BOARD v. LAXMI                    471
 BUSINESS & CEMENT CO.P. LTD. [A.K. SIKRI, J.l
reproduced in Tables 5.28 and 5.29 of the 2004 Tariff Schedule    A
which will clearly reflect that the aspect of minimum guarantee
charges was duly considered by the SERC. To demonstrate it,
we reproduce the said two tables hereunder:

    5.28 Tariff for HTS-II Consumers (Existing/Proposed )
                                                                  B
        DESCRIPTION           I            TARIFF

                       DEMAND CHARGE

                              Existing             Proposed
                                                                  c
    Rs./KVA/Month             115                   200

                       ENERGY CHARGE

    Rs./KWH                   Existing              Proposed
                                                                  D
    All Consumption           1.72                  4.30

                 FUEL SURCHARGE CHARGE

    Rs./KWH                   2.44            I
    Annual Minimum Guarantee (AMG) Charge                         E

                  Subject to minimum The following AMG
                  contract demand for charge shall be
                  this category,         realized from the
                  monthly minimum consumer as' per                F
                  demand charge as appropriate tariff.
                  per appropriate tariff
                  based on actual AMG Charge based
                  maximum demand on load factor of
                  of that month or 30% and power
                  75% of the contract factor 0.9 on contract      G
                  demand whichever demand payable at
                  is higher.             the rate of energy
                                         charge applicable to
                  Energy charges HTS-II category.
                                                                  H
-
        472      SUPREME COURT REPORTS               [2014] 3 S.C.R.


    A                      based on load factor
                           of 30% and power
                           factor 0.85 on
                           contracted demand
                           payable at the rate
    B                      of Rs.1.72/KWH

              5.29 Tariff for EHTS Consumers (Existing/Proposed)
              DESCRIPTION                                  TARIFF
                                DEMAND CHARGE
    c
                                      Existing            Proposed

              Rs./KVA/Month           110                  200
                                ENERGY CHARGE
    D
              Rs./KWH                 Existing            Proposed

              All Consumption         4.13                 4.15
                                FUEL SURCHARGE
    E [       Rs./KWH                 2.44 -

                    Annual Minimum Guarantee (AMG) Charge

                           Subject to minimum The following AMG
    F                      contract demand for charge shall be
                           this category,         realized from the
                           monthly minimum consumer as per
                           demand charge as appropriate tariff.
                           per appropriate tariff
    G                      based on actual AMG Charge based
                           maximum demand on load factor of
                           of that month or 50% and power
                           75% of the contract factor 0.9 on contract
                           demand whichever demand payable at
                           is higher              the rate of energy
    H
     JHARKHAND STATE ELECT. BOARD v. LAXMI                    473
    BUSINESS & CEMENT CO.P. LTD. [A.K. SIKRI, J.]
.
                      Energy charges         charge applicable to     A
                      based on load factor   EHTS category.
                      of 50% and power
                      factor 0.85 on
                      contracted demand
                    · payable af the rate                             B
                      of Rs.1.69/KWH

       14. The tariff order further reveals that the SERC had even
compared the proposal of JSEB with the tariff prevailing in other
$tates in India and after detailed analysis thereof, it approved      C
tti'e tariff for HTS consumers which is mentioned in table 5.31
of the 2004 Tariff Schedule. Therefore, it cannot. be said that
thft SERC was oblivious of the clause relating to minimum
guarantee charges which JSEB was charging from its
consumers as per the earlier agreements entered iato with
them. The position would become crystal clear from the                D
following discussion in the 2004 Tariff Schedule wherein the
SCRC gav.e specific reasons for revising and approving the
tariff for HTS consumers.
      The SERC has filed its response to these appeals,               E
      wherein the provision in this behalf is explained in the
      manner noted below: "It is evident from the above' table that
      there is no common approach towards minimum charge.
      However, if we compare neighbouring States like Orissa,
      West Bengal and Madhya Pradesh (supply at less than             F
      132 KVA), there is no minimum charge. As mentioned
      earlier, the Commission would ideally like to scrap this
      charge, but for current year it has retained this charge due
      to lack of information and data to ascertain the true impact
      of this charge. The Commission has already directed the         G
      Board to provide details in this regard in the next petition.
            For the current year, the Commission would not like
      to increase the burden on the industries on account of
      minimum charge and has therefore attempted to keep it
      at the existing level. The, Commission has assumed a            H
    4·74       SUPREME COURT REPORTS                   [2014] 3 S.C.R


A          minimum level of supply and a minimum level of
           consumption. For this, the Commission has considered
           10% load factor for HTS-I and HTS-I I categories
           considering an average consumption of two (2) hours in a
           day. For EHTS and HT Special load factor of 20% and
B          30% respectively has been taken by considering an
           average consumption of four (4) hours and seven (7)
           hours in a day respectively. The Commission observes that
           if these categories of industries are not able to maintain
           this minimum load factor, than they should reduce their
c          contracted load. The Commission would like to
           explicitly mention that if the consumption exceeds
           the mentioned load factor, no minimum charge would
           be applicable.

                  For encouraging consumption, the Commission
D          has also introduced a load factor rebate for all
           industries consumers. For the entire consumption in
           excess of this defined load factor, a rebate is
           provided on the energy charges for such excess
           consumption. The Commission would have liked to align
E          the tariff structure towards cost of supply during the current
           year itself, but it was constrained due to the huge tariff
           shock that it would translate into for other consumes and
           consequent increase that would have been required in tariff
           for other categories. Thus as a principle the Commission
F          has taken the first step towards reducing this distortion in
           the tariff structure. The Commission is conscious of the fact
           that HT industry in Jharkhand has borne the brunt of cross
           subsidy in the past and the tariff applicable to them is
           above the cost of supply. The significance of this step
G          should not, however, be judged by the quantitative decline
           but the signal and intent whereby the Commission intends
           to further rationalize the tariff in the future."

       15. We would like to reproduce the following discussion
H in the impugned judgment of the High Court, as we are in
  JHARKHAND STATE ELECT. BOARD v. LAXMI                     475
 BUSINESS & CEMENT CO.P. LTD. [A.K. SIKRI, J.]
agreement therewith the observations made in those                  A
paragraphs:

   "...... 10.We are concerned with the Demand Charge only,
   rather to say not concerned with the Demand Charge itself
   but the manner in which the Demand Charge can be
                                                                    8
   calculated for the purpose of raising demand against the
   consumer charging of the Demand Charge "has been
   allowed in Tariff Order 2003-04@ Rs.140/- as mentioned
   at page 141 of the Tariff Order. As we have already noticed
   that a formula was given in Clause 15.2 in the tariff of 1993    C
   as well as in the contract on the basis of which the Board
   was charging the Demand Charge on the basis of the
   actual consumed units but was charging the said amount
   irrespective of the consumption of the units of electricity.
   Now the contention of the respondent-writ petitioners is that
   they are liable only according to the units consumed by          D
   them and not according to the formula. We found from.
   Board's proposal contained in Table 5.27 that the
   Electricity Board consciously (or may inadvertently)
   submitted its proposal only to the effect that existing annual
   Demand Charge is Rs.125/- per KVA per month. This                E
   proposal of the Board was considered and ultimately the
   Demand Charge was allowed by the Tariff Order of 2003-
   04 which is mentioned at page 141 by which only it has
   been approved that the Electricity Board shall be entitled
   to charge Rs.140/- per KVA per month as proposed by              F
   the Board, the Tariff Order of 2003-04 increased it to
   Rs.140/-only.

         11. In view of the above reasons, we cannot hold that
   the Electricity Regulatory Commission has not considered         G
   the proposal of the Electricity Board with respect to their
   claim for Demand Charge and the manner in which it will
   be charged ...... "

          12.ln view of the above facts, we are of the
    considered opinion that the appellant-Board cannot take         H
    476       SUPREME COURT REPORTS                 [2014] 3 S.C.R.


A         help of Clause 5.1. wherein Electricity Regulatory
          Commission wherein it has been observed that some of
          the matters have not been dealt with and they shall continue
          to be the same as they were in existence in the State
          because of the reason that there is a specific proposal
B         made by the Electricity Board for the Demand Charge as
          well as the manner in which it will be charged and this
          proposal was considered by the Electricity Regulatory
          Commission and thereafter Tariff Order has been
          issued ... "
c       16. To put the matter beyond the pale of controversy, we
  would like to highlight another fact, namely the JSEB had even
  filed clarification applications before the SERC contending that
  having regard to the Clause 4(c) of the Agreement with the HT-
  1 consumers, the maximum demand charges would be those
D prescribed under Clause 4(c) of the Agreement. These
  applications were specifically rejected by the Commission. No
  appeal was preferred by the JSEB challenging those orders. It
  is, therefore, too late in the day for the JSEB to now argue that
  this aspect of minimum guarantee charge has not been dealt
E with by the SERC in the 2004 Tariff Schedule.

          3. Re.: Effect of Section 185 of the Electricity Act 2003.

        Submission of Mr. Sinha, learned senior counsel,
  predicated on Section 185 (2)(a) of the Electricity Act and
F Section 6 (B) of the General Clauses Act, was that by virtue of
  the aforesaid provision the earlier Agreement of 1994, including
  Clause 4(c) thereof entered into between the Electricity Board
  and the consumers was saved. Section 185(2)(a) of the Act
  reads as under:
G
       "anything done or any action taken or purported to have
       been done or taken including any rule, notification,
       inspection, order or notice made or issued or any
       appointment, confirmation or declaration made or any
H      license, permission, authorization or exemption granted or
   JHARKHAND STATE ELECT. BOARD v. LAXMI                    477
  BUSINESS & CEMENT CO.P. LTD. [A.K. SIKRI, J.]
    any document or instrument executed or any direction            A
    given under the repealed laws shall, in so far as it is not
    inconsistent with the provisions of this Act, be deemed to
    have been done or taken under the corresponding
    provisions of this Act."
                                                                    B
    We also reproduce Section 6(8) of the General Clauses
Act hereinbelow:

    "affect the previous operation of any enactment so
    repealed or anything duly done or suffered thereunder; or"
                                                                    c
     17. It was the submission that since all the actions deemed
to have been done or taken under the corresponding provision
of the earlier Act are saved, the Agreement in question which
was entered into by the Electricity Board in exercise of statutory
power and was having legal force, had been saved under the D
aforesaid provisions. To prop this submission, Mr. Sinha also
referred to the judgment of this Court in the case of Himachal
Pradesh State Electricity Regulatory Commission & Anr. v. ~
Hiinachal Pradesh State Electricity Board (2013) 12 SCALE
397 with the plea that this very aspect had been specifically E
dealt with ih the aforesaid judgment and therefore the issue was
no longer res-integra. Mr. Sinha pointed out that in that case
the courts specifically dealt with the effect of repealed provision
contained in Section 185 of the Act, 2003 read with Section
6(8) of the General Clauses Act and held that the previous
agreements were saved unless it could be pointed out that
                                                                    F
there was a manifest intention to destroy them. He referred to
the following passage from the earlier judgment in the case of
State of Punjab vs. Mohar Singh 1955 (1) SCR 893 which is
quoted in the aforesaid judgment and reads as under:
                                                                    G
           "Whenever there is a repeal of an enactment, the
    consequences laid down in Section 6 of the General
    Clauses Act will follow unless, as the section itself says, a
    different intention appears. In the case of a simple repeal
    there is scarcely any room for expression of a contrary         H
    478       SUPREME COURT REPORTS                   [2014] 3 S.C.R


A         opinion. But when the repeal is followed by fresh legislation
          on the same subject we would undoubtedly have to look
          to the provisions of the new Act. but only for the purpose
          of determining whether they indicate a different intention.
          The line of enquiry would be. not whether the new Act
B         expressly keeps alive old rights and liabilities but whether
          it manifests an intention to destroy them. We cannot
          therefore subscribe to the broad proposition that section
          6 of the General Clauses Act is ruled out when there is
          repeal of an enactment followed by a fresh legislation.
c         Section 6 would be applicable in such cases also unless
          the new legislation manifests an intention incompatible
          with or contrary to the provisions of the section. Such
          incompatibility would have to be ascertained from a
          consideration of all the relevant provisions of the new law
          and the mere absence of a saving clause is by itself not
D
          material. It is in the light of these principles that we now
          proceed to examine the facts of the present case."

                                                 (underlining is ours)

E       He also banked upon the following discussion in the said
    judgment:

          "We have referred to the aforesaid paragraphs as
          Mr.Gupta has contended that when there is repeal of an
          enactment and substitution of new law, ordinarily the vested
F         right of a forum has to perish. On reading of Section 185
          of the 2003 Act in entirety, it is difficult to accept the
          submission that even if Section 6 of the General Clauses
          Act would apply, then also the same does not save the
          forum of appeal. We do not perceive any contrary intention
G         that 6 of the General Clauses Act would not be applicable.
          It is also to be kept in mind that the distinction between
          what is and what is not a right by the provisions of the
          Section 6 of the General Clauses Act is often one of great
          fitness. What is unaffected by the repeal of a statute is a
H         right acquired or accrued under it and not a mere hope,
   JHARKHAND STATE ELECT. BOARD v. LAXMI                          479
  BUSINESS & CEMENT CO.P. LTD. [AK. SIKRI, J.]
     or expectation of, or liberty to apply for, acquiring right (See     A
     M. S. Shivanand v. Karnataka State Road Transport
     Corporation and Ors. MANU/SC/037111979: (1980) 1
     sec 149)."
      18. In order to appreciate this argument, we will have to           B
 traverse through some salient provision of the agreement of
·1994 entered into with the consumers. These are paras 4(c)
 and 11 of the HT agreement:

          "4 .. (c) Maximum demand charge for supply in any
     month will be based on the maximum KVA demand for the                C
     month of 75% of the contract demand whichever is higher,
     subject to provision of clause 13........

            11. This agreement shall be read and construed as
     subject to the provisions of the Indian Electricity Act, 1910,       o
     rules framed thereunder, the Electricity (Supply) Act 1948
     together with rules, regulations (if any) tariffs and terms and
     conditions for supply of electricity framed and issued
     thereunder and for the time being in force as far as the
     same may respectively be applicable and all such                     E
     provisions shall prevail in case of any conflict or
     inconsistency between them and the terms and conditions
     of this agreement."

     19. It is also to be borne in mind that the tariff in force during
the period was Tariff Order dated 27 .12.2003 for the period              F
2003-04 which was having force of law under the Electricity Act
2003. Thus, what follows from the above is that even if we
proceed on the basis that the statutory agreements entered into
earlier were saved, the agreement in question stands replaced
by 2004 Tariff Schedule. At this juncture, we would like to refer         G
to the judgment of this Court in the case of BSES v. Tata Power
Co.Ltd. (2004) 1 SCC 195 wherein following pertinent
observations were made.                                        ·

     "16. The word "tariff' has not been defined in the Act.              H
    480    SUPREME COURT REPORTS                     [2014] 3 S.C.R.

A       "Tariff' is a cartel of commerce and normally it is a book
        of rates. It will mean a schedule of standard prices or
        charges provided to the category or categories of
        customers specified in the tariff. Sub-section (1) of Section
        22 clearly lays down that the State Commission shall
B       determine the tariff for electricity (wholesale, bulk, grid or
        retail) and also for use of transmission facilities. It has also
        the power to regulate power purchase of the distribution
        utilities including the price at which the power shall be
        procured from the generating companies for transmission,
c       sale, distribution and supply in the State. "Utility" has been
        defined in Section 2( 1) of the Act and it means any person
        or entity engaged in the g_eneration, transmrssion, sale,
        distribution or supply, as the case may be, of energy.
        Section 29 lays down that the tariff for the intra-State
        transmission of electricity and tariff for supply of electricity
D
        - wholesale, bulk or retail - in a State shall be subject
        to the provisions of the Act and the tariff shall be
      . determined by the State Commission. Sub-section (2) of
        Section 29 shows that the terms and conditions for fixation
        of tariff shall be determined by Regulations and while doing
E       so, the Commission shall be guided by the factors
        enumerated in clauses (a) to (g) thereof. The Regulations
        referred to earlier show that generating companies and
        utilities have to first approach the Commission for approval
        of their tariff whether for generation, transmission,
F       distribution or supply and also for terms and conditions of
        supply. They can charge from their customers only such
        tariff which has been approved by the Commission.
        Charging of a tariff which has not been approved by the
        Commission is an offence which is punishable under
G       Section 45 of the Act. The provisions of the Act and
        Regulations show that the Commission has the exclusive
        power to determine the tariff. The tariff approved by the
        Commission is final and binding and it is not permissible
        for the licensee, utility or anyone else to charge a different
H       tariff."
    JHARKHAND STATE ELECT. BOARD v. LAXMI                      481
   BUSINESS & CEMENT CO.P. LTD. [A.K. SIKRI, J.]
      20. In view of the above, we are of the opinion that even       A
 the argument based on Section 185 of the Electricity Act, 2003
 would not bring any change to the results of this case. We, thus,
 do not fault with the judgment of the High Court appealed
 against.
                                                                      B
        21. Before we part with, it is necessary to deal with one
  more argument of the appellant. It was submitted that there was
  delay in filing the Writ Petitions inasmuch as bills raised by the
  JSEB on the basis of Clause 4(c) of the 1994 Agreement, even
· after the formulation of 2004 Tariff Schedule were being paid C
  by the consumers and they approached the Court by filing Writ
  Petitions only in the year 2010. Thus, there was a delay and
  latches of 5 years. It is further argued that in such scenario, the
  High Court at least should not have directed the appellants to
  refund the excess amount charged under the bills raised for
  earlier period. Other related submission was that it would be . D
  unjust enrichment to the consumers who would have recovered
  the amount from the user of the electricity.

       22.' In so far as delay in filing the Writ Petition is concerned,
 it appears from the chronology of events that the same has been E
 duly explained. It is not in doubt that the consumers had paid
 the amount of bills raised by JSEB under protest because of
 the threat of disconnection. While doing so, they had raised
 specific plea with the JSEB that it was now supposed to raise
 the bills in accordance with the 2004 Tariff Schedule. The matter F
·remained under consideration at the level of JSEB which kept
 approaching the Court as well as SERC seeking clarification
 of 2004 Tariff Schedule. As already pointed out above,
 clarification applications were filed which were dismissed by
 the Commission. However, as the JSEB did not judge from its G
 stand even after the dismissal of these applications, the
 consumers approached the Court and filed the Writ Petitions.
 The Writ Petitioners have thus furnished satisfactory explanation
 for approach the Court.
                                                                     H
    482        SUPREME COURT REPORTS                 [2014] 3 S.C.R.


A      23. The plea of unjust and enrichment will not be available
  to the appellants. In the first place, no such plea was raised
  before the High Court either before the learned Single Judge
  or the Dtvision Bench. In the Special Leave Petition, this
  submission was made for the first time at the time of hearing
B of the present appeals. Moreover, it is not a case of payment
  of tax which is a burden passed on the consumers. It is only in
  such cases that was held in Mafatlal Industries Ltd. vs. Union
  of India (1997) 5 SCC 536 that the question of unjust
  enrichment would arise for consideration. As far as issue like
c the present is concerned, such a question was left open in para
  107 of the aforesaid judgment. The Court had made it clear the
  concept of unjust enrichment had no application for refunds
  other than taxes, as is clear from the reading thereof.

           "107. A Clarification: The situation in the case of captive
D          consumption has not been dealt with by us in this opinion.
           We leave that question open."
        24. As a result, we find that the appeals are bereft of any
    merit and are accordingly dismissed. No costs.
E
    D.G.                                        Appeals dismissed.