TMI Blog1975 (10) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... unless and until the same was determined by either party giving to the other six calendar months notice in writing of the intention to terminate the agreement. It is common ground that the agreement has not been terminated. It may be appropriate at this stage to refer to a few clauses in the agreement. Clause 12 provides for charges to be paid by the consumer as well as about maximum demand. Clause 13 reads as follows:- The tariff and conditions of supply mentioned in this Agreement shall be subject to any revision that may be made by the Supplier from time to time . Clause 22 deals with extra charge regarding domestic lighting, fans, domestic power and street lighting, etc. in the colony of the Mills. Clause 23 reads as follows:- Any dispute or difference arising between the Consumer and the Supplier or their respective Electrical Engineers as to the supply of electrical energy hereunder or the pressure thereof or as to the interpretation of this Agreement or the right of the Supplier or the consumer respectively to determine the same or any other question, matter or thing arising hereunder shall be referred to a single arbitrator who shall be mutually agreed upon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to larger developmental programmes like rural electrification was omitted by a revised Press Note. The company unsuccessfully challenged the levy of the surcharge by an application under article 226 of the Constitution in the Orissa High Court. Several contentions were raised in the petition before the High Court. The surcharge was, inter alia, challenged as being violative of article 14 of the Constitution. This objection was repelled by the High Court and the learned counsel appearing on behalf of the company was unable to press the same before us in view of the Presidential suspension of that article during the emergency. Some other grounds, including that clause 13 is ultra vires the Act, were taken before the High Court but have not been pressed before us. Mr. Gupte, the learned counsel appearing on behalf of the appellants, submits as follows:- (1) The Board has no power to levy a surcharge under the provisions of the Act. (2) Clause 13 of the agreement cannot take in the levy of surcharge. It is, therefore, not a matter for reference to arbitration under clause 23 of the agreement. (3) Assuming it has power under the Act or under clause 13 to levy a surc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aluminium Company s case (supra) there was no provision in the agreement with regard to the revision of tariff, such as we find in clause 13 of the present agreement. This Court, therefore, had not to consider in that case about the effect of a clause like clause 13. In the Titagarh s case (supra), however, this Court had to take into consideration clause 13 of the agreement therein which is the identical clause in the present case. Sub-sections (1) and (2) of section 49 empower the Board to fix uniform rates of tariff. Sub-section (3) of section 49 on the other hand reserves to the Board the power of fixing different tariffs having regard to certain factors mentioned therein. Section 49(3) contemplates what are known as special agreements . Power under section 49(1) and (2) cannot be invoked during the subsistence of special agreements providing for stipulation of rates of tariff in absence of any reservation therein. Exercise of power under section 49(1) and (2) as also under section 59 will remain suspended during the currency of the special agreements between the parties and no unilateral enhancement of rates is permissible under law. There is only a pro tempore ban on revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evy the coal surcharge on the appellant, are plainly questions arising under the agreement and they are covered by the arbitration provision contained in clause (23) of the agreement. All the contentions raised by the appellant against the claim to justify the levy of the coal surcharge by reference to clause (13) of the agreement would, therefore, seem to be covered by the arbitration agreement and there is no reason why the appellant should not pursue the remedy of arbitration which it has solemnly accepted under clause (23) of the agreement and instead invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution to determine questions which really form the subject matter of the arbitration agreement. Although this Court was dealing with the coal surcharge in the above decision, there is no distinction in principle between the coal surcharge or a surcharge simpliciter and the ratio of the above decision will be applicable in this case. The second submission of the learned counsel, therefore, fails and the point is squarely covered by the above decision. The matter is, therefore, covered by the arbitration clause 23 of the agreement. With re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion loses all importance. The totality of the provisions under section 49 does not give any scope for the plea of discrimination raised in this case and in view of clause 13 in the agreement itself. We can appreciate the handicap of counsel in advancing his arguments under the head of discrimination having lost the protective amulet of article 14 of the Constitution under the Presidential embargo during the emergency. A plea of discrimination which is available when article 14 is in free play is not at par with the interdict of undue favour under section 49 of the Act. Apart from this, when law makes it obligatory for certain special agreements to continue in full force during their currency stultifying the power of the Board to revise the rates during the period, no ground of discrimination can be made out on the score of exempting such industries as are governed by special agreements. Although the Press Note in the instant case did not recite any provisions of the Act under which the same was issued, mere omission to do so does not disentitle the Board to reply upon clause 13 of the agreement for a claim to revision of the rates, although in the form of a surcharge in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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