Rajive Bhalla, J.@mdashBy way of this, order, we shall dispose of Civil Writ Petition Nos. 17009 of 1994, 13651, 18031, 18627 of 1995 and 1939 of 1996 as they involve adjudication of similar questions of law. For the sake of brevity, facts are being taken from Civil Writ Petition No. 17009 of 1994. The petitioners challenge the legality of notification No. 2/115/94/3LG/III/5037 dated 21.4.1994, issued by the State of Punjab and commercial circular No. 21/94 dated 02.5.1994 issued by the Punjab State Electricity Board, on the ground that electricity is not "goods" and even if it is "goods", the Electricity Board has no jurisdiction to levy octroi upon the petitioners @ Rs. 0.02 paise/per unit for the import of electricity, for consumption, use or sale, into municipal limits of Mandi Gobind Garh.
2. Counsel for the petitioners contends that as electricity, is not "goods", octroi imposed by the Municipal Committees on import of electricity, is illegal, being violative of Entry No. 52 of List 2 of Schedule VII of the Constitution of India. The obligation, if any, to pay octroi, lies upon the Electricity Board and cannot, on the basis of a tariff circular, be passed on to the consumers, i.e., the petitioners. It is further contended that in the absence of any statutory power available to or on conferred upon the Electricity Board, to levy octroi the petitioners cannot be asked to pay octroi by adding it to their bills. It is also contended that tariff is fixed u/s 46 read with section 49 of the Electricity (Supply) Act, 1948 (hereinafter referred to as the "Electricity Act") and as octroi is not a part of tariff, the respondents have no jurisdiction to levy octroi upon the petitioners. Counsel for the State of Punjab, the Electricity Board as well as the Municipal Committees submit that the controversy, whether the electricity is "goods" or not, is squarely covered against the petitioners by judgments of the Hon''ble Supreme Court of India in
3. We have heard counsel for the parties, perused the paper book, the impugned notification, the impugned commercial circular and find no reason to accept the writ petitions.
4. The controversy, whether the electricity is "goods" or not received judicial attention in State of Andhra Pradesh v. National Thermal Power Corporation Limited and others, Commissioner of Sales Tax, Madhya Pradesh, Indore v. Madhya Pradesh Electricity Board, Jabalpur, and a Division Bench judgment of this Court in Rana Sugars Limited Chandigarh and others v. State of Punjab and others, cases (supra) and has been answered by holding that electricity is "goods". The notification to levy octroi on electricity has been issued by the State of Punjab, in the exercise of power u/s 62-A of the 1911 Act, by directing all Municipal Committees to levy octroi on import of electricity into municipal limits. Municipal Committees have, in compliance with this notification, levied octroi on the Electricity Board for import of electricity within municipal limits. The Electricity Board imports electricity into municipal limits for distribution to its consumers.
5. A perusal of Sections 46 and 49 read with Sub-sections (h) and (j) of Section 79 of the Electricity Act, reveals that they do not enact any impediment prohibiting the Electricity Board from recovering octroi, levied by the Municipal Committee, from its consumers. Sub-sections (h) and (j) of Section 79 of the Electricity Act, empower the Electricity Board, to issue notifications/regulations governing electricity tariff. The petitioners who are consumers, are supplied electricity at a tariff rate determined under circulars issued by the Board, from time to time. The Board has issued the impugned circular, in exercise of powers conferred by sub-sections (h) and (j) of section 79 of the Electricity Act. A relevant extract from circular No. 21/94 dated 2.5.1994 reads as follows.
From
The Chief Engineer/Commercial,
Tariff Directorate, PSEB, Patiala
To
1. All C.Es/DS in PSEB
2. All S.Es/DS in PSEB
3. Director/Building & Director/Computer, Patiala,
4. All XENs/DS in PSEB
5. All AEEs/AEs/DS in PSEB
6. All JEs Incharge Sub Offices, PSEB.
Memo No. 24182/24932/RG-760/M/Jal//Vol. VI
Dated 2.5.94
Sub: Levy of octroi on Electricity Consumption.
As per Notification issued by Secretary to Govt. Punjab Deptt. of Local Govt. vide Nos. 2/115/94-3/LG/III/5037 & 5040 of dated 21-4-94, the Punjab Govt. has levied octroi @ Rs. 0.02 paise/Unit on consumption, use or sale of Electricity in various cities/towns under the jurisdiction of Municipal Corporations/Municipal Committees/Notified Area Committees in Punjab. A list of Municipal Corporations/Committees/Notified Area Committees where octroi is leviable, is also enclosed. The octroi shall be leviable on all categories of consumers except Agricultural consumers. Just like electricity duty, the octroi shall be levied on the-Units(Kwh) consumed/billed to various categories of consumers and no surcharge/rebate shall be applicable.
As per condition No. 3 of general conditions of Tariff, please levy octroi @ Rs. 0.02 paise/Unit w.e.f. 21.4.1994 adding the same in the bills to be raised to various consumers w.e.f. 1st June, 1994. The levy of octroi shall be rounded to one rupee. Amount less than 50 paise shall be ignored and amount of 50 paise and above shall be taken as one rupee. As desired by the Deptt., of Local Govts, monthly remittances of total collections are to be made to the concerned Municipal Corporations/Municipal Committees/Notified Area Committees by the Divisional Offices in the succeeding month, after recovering 10% of the Octroi revenue as service charges for levy, collection and remittance of Octroi. Detailed instructions for opening of separate Account Head and instructions and accounting procedure for collection and remittance of octroi is being issued by CAO, PSEB, Patiala separately.
As already advised to SEs/Distribution vide Memo No. 65600/65619/RG-760/M/Jal. dated 30-9-93, Distribution/Divns were required to identify consumers falling under the jurisdiction of Municipal Corporations/Municipal Committees/Notified Area Committees. There may be certain Distribution Sub Divisions whose part area falls under the jurisdiction of the Municipal Corporation/Municipal Committees/Notified Area Committee and part area outside. In case of difficulty in identifying the consumers in such areas, the concerned officers of Municipal Committees/Corporations/Notified Area committees may be contacted for supply of jurisdiction maps and for giving required help. Director Local Govt. has already issued instructions to all concerned in this regard.
Further action may please be taken accordingly.
A perusal of the aforesaid circular issued in exercise of powers under Sections 46 and 49 read with sub Sections (h) and (j) of Section 79 of the Electricity Act, reveals that octroi has been "levied" on the consumer of electricity. The words "levy", "levied" or "leviable" have been used loosely as, obviously, the Electricity Board cannot levy octroi and, therefore, have to be read as exercise of a right to pass on the financial burden of paying octroi to its consumer. The recovery or octroi levied upon the electricity Board, from the petitioners, is not prohibited by any statutory provisions or contractual impediment. The Electricity Board is, thus, within its rights to recover octroi paid on import of electricity into municipal limits for distribution to the ultimate consumer. The Electricity Board imports electricity into municipal limits for distribution to the petitioners and is, thus, well within its rights to pass on the financial burden of paying octroi to the petitioners. The writ petitions, being devoid of any merit, are dismissed with no order as to costs.
