Ranjan Gogoi, J.@mdashThe controversy in the present writ petition relates to the question as to whether the Tea Manufacturing Unit of the
petitioner without a garden/plantation is to be included within Category 8 or Category 6 of the 1994 Schedule of Tariff framed by the A.S.E.B. u/s
49 of the Electricity Supply Act, 1948. The aforesaid formulation with regard to the scope of the writ petition has been made by the Court having
regard to the specific reliefs prayed for in the writ petition. Though a valiant attempt has been made on behalf of the petitioner to extend the
horizons of the writ petition to cover the entitlement of the petitioner for the categorisation under the subsequent Schedule of Tariffs, this Court is of
the view that having regard to the prayers made, the scope and ambit of the writ petition should not be extended to the areas as contended by the
writ petitioner.
2. The point formulated above, will have to be reconciled on the basis of the language used by the Board while framing Category 8 of the 1994
Schedule of Tariff. Categorisation of consumers of electricity for the purpose of payment of tariff has been broadly made on the basis of the use to
which electricity is put to by the consumer. While under the 1994 Schedule of Tariff, the criteria of applicability to bring a particular pattern of
consumption within a defined category has not been spelt out, in the erstwhile tariff of 1986, there is an exhaustive enumeration of the criteria of
applicability. Category 8 of the 1994 Schedule of tariff merely lays down the tariff applicable to ""Tea, Coffee and Rubber"" whereas under the
corresponding category, i.e., Category 9 of the 1986 Schedule of Tariff, in what circumstances the supply of power for Tea, Coffee and Rubber
would fall under Category 9 has been spelt out in details. However, in the 1994 Schedule of Tariff, it is clearly mentioned that the tariff prescribed
is in suppression of the prevailing tariff and shall be applicable to the respective categories of consumers mentioned in the 1986 Schedule of Tariff.
The aforesaid Category 9 as included in the relevant Schedule of Tariff, 1986 may be usefully extracted hereunder :
CATEGORY : 9
Supply for Tea, Coffee and Rubber Gardens.
1. APPLICABILITY -
Applicable to supply taken by Tea, Coffee and Rubber gardens only for their factory consumptions, Irrigation and other consumptions in the
Estate.
3. Mrs. S. Kejriwal, learned counsel for the petitioner has contended that Category 8 of the 1994 Schedule of Tariff, must be understood to be
paramateria with that of Category 9 of the erstwhile 1986 Schedule of Tariff. Learned counsel for the petitioner relying on an unreported judgment
of this Court passed in the case of Teamafeo Private Limited v. Assam State Electricity Board and Ors. (Writ Appeal No. 248 of 1993) has
submitted that a similar question as raised in the present writ petition, under the 1986 Schedule of Tariff, had arisen for consideration before the
Division Bench in the above case. The Division Bench on an elaborate consideration of the contentions advanced by the rival parties and the terms
of the 1986 Schedule of Tariff had come to the conclusion that a unit manufacturing tea but without a tea garden would be more appropriately
classifiable under Category 6 of the 1986 Schedule of Tariff instead of Category 9. Mrs. S. Kejriwal, learned counsel for the petitioner, therefore,
has contended that Category 8 of 1994 Schedule of Tariff being same and similar with the Category a of the 1986 Schedule Tariff, the issue raised
in the present writ petition would stand covered by the decision of the Division Bench, as noted above.
4. Mr. H. Roy, learned counsel appearing for the respondent Board has not seriously disputed that Category 8 of the 1994 Schedule of Tariff
would correspond to Category 9 of the 1986 Schedule. However, learned counsel by placing reliance the resolution dated 22.11.1996 taken by
the Board has sought to contend that it has all along been the understanding of the Board that a unit without a garden/Estate but engaged in the
manufacture of tea would be classifiable under Category 9 of the 1986 Schedule corresponding to Category 8 of the 1994 Schedule. The Board
had given expression to the said understanding by means of the aforesaid resolution dated 22.11.1996 to the following effect.
Application to supply, taken by Tea, Coffee and Rubber garden and/or Industry for their Industrial, irrigation and other consumptions.
(Emphasis is mine).
5. Arguing further, Mr. Roy, contends that if the above is the manner in which the Board had understood Categories 8 and 9 of the Schedules of
Tariff in question, the same should be allowed to prevail. In so far as the Division Bench Judgment in the case of Teamafeo Private Limited v.
Assam State Electricity Board and Ors. is concerned, Mr. H. Roy, learned counsel appearing for the respondent Board has submitted that though
the Division Bench in the aforesaid case had held otherwise, this Court must now understand Category 8 of the 1994 Schedule of Tariff in the
manner expressed in Board''s resolution dated 22.11.1996.
6. A perusal of the Division Bench judgment dated 10.7.1996 passed in the case of Teamafeo Private Limited v. Assam State Electricity Board
and Ors. amply reveals that the Division Bench of this Court had come to the conclusion that under the 1986 Schedule of Tariff, units
manufacturing tea without a tea garden is to be categorised under Category 6 and not under Category 9. The language of Category 8 of the 1994
Schedule of Tariff and Category 9 of the 1986 Schedule of Tariff, considered by the Division Bench of this Court, in view of the contents of the
1994 Schedule of Tariff as noted above, must be held to be identical and similar. If that be so, judicial discipline would require this Court to follow
the decision laid down by the Division Bench even while interpreting Category 8 of the 1994 Schedule of Tariff. The resolution of the Board dated
22.11.1996 cannot have the effect of overriding the Division Bench judgment so as to enable this Court to construe the projections differently. In
any case, if the Board had understood Category 8 of the 1994 tariff in a different manner, the 1994 Schedule of Tariff should have been
appropriately amended and such amendment duly publicised. Not only the 1994 Schedule of Tariff remained unaltered, no material has been
brought on record by the Board to show any publication of the Resolution in the same manner in which the Tariff itself was publicised. An
unpublished and uncommunicated resolution expressing an intention different from the published tariff cannot be allowed to determine the liability of
a consumer to payment of such different tariff, a conclusion that this Court is inclined to draw on the ratio of the law laid down by the Apex Court
in the case of D.B. Raju Vs. H.J. Kantharaj and Others,
7. For the aforesaid reasons, this Court has no option but to hold that during the period when the 1994 Schedule of Tariff was in force, which this
Court understands to be up to 1998, the petitioner being a tea manufacturing unit without a garden is entitled to be included in Category 6 of the
1994 Schedule of Tariff and on that basis to all consequential reliefs as would reasonably flow to the petitioner.
8. The writ petition shall accordingly stand allowed as indicated above.
