Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Shree Digvijay Cement Company Limited vs State Of Gujarat on 31 July, 2018

Author: Bela M. Trivedi

Bench: Bela M. Trivedi

        C/SCA/6135/2018                                          ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 6135 of 2018

==========================================================
            SHREE DIGVIJAY CEMENT COMPANY LIMITED
                            Versus
                      STATE OF GUJARAT
==========================================================
Appearance:
MR DIGANT M POPAT(5385) for the PETITIONER(s) No. 1,2
MR DIPAK R DAVE(1232) for the RESPONDENT(s) No. 3
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2
MR TIRTHRAJ PANDYA, AGP for the Respondent Nos.1 and 2
==========================================================

 CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

                              Date : 31/07/2018

                                 ORAL ORDER

1. The petitioners have challenged the communication dated 7.4.2018 (Annexure-P/5), as also the supplementary bill (Annexure-P/6), whereby the petitioners have been called upon to pay Rs.14,72,44,583.18 towards the difference of the amount of electricity duty payable by the petitioners and the amount paid by the petitioners during the period from August 2012 to January 2018.

2. The learned Sr. Advocate Mr.Sanjanwala for the petitioners vehemently submitted that the respondent Company has issued the supplementary bill and passed the impugned order, reclassifying the petitioner Company making applicable Clause (3)(a) of the Schedule-I of Page 1 of 5 C/SCA/6135/2018 ORDER the Gujarat Electricity Duty Act, 1958 (hereinafter referred to as "the said Act") without affording any opportunity of hearing, and that too, seeking recovery with retrospective effect from 2012. Relying upon the decision of this Court in case of Reliance Industries Limited Vs. State of Gujarat and Ors., reported in 2010(2) GLR 1684, he submitted that the reclassification could not be made with retrospective effect, and that the amount of differential duty sought to be recovered by the respondent Company is ex facie illegal. He also submitted that earlier the respondent Company had rightly applied Clause (4) of Schedule-II to the petitioner Company, as the petitioner was the consumer within the definition contained in Section 2(a)(i) and (ii) of the said Act.

3. However, the learned Advocate Mr.Dipak Dave appearing for the respondent Company, pressing into service Section 42(5) and (6) of the Gujarat Electricity Act, 2003 and relying upon the decision of the Supreme Court in case of Maharashtra State Electricity Distribution Co. Ltd. Vs. Lloyds Steel Industries Limited, reported in AIR 2008 SC 1042, submitted that an alternative remedy being available to the petitioner under the said provision, the present petition should not be entertained. He also submitted that there being bona fide mistake committed by the concerned officer of the respondent Company in applying Schedule-II, Page 2 of 5 C/SCA/6135/2018 ORDER though Schedule-I was applicable to the petitioners, the same was sought to be rectified by the impugned order. Mr.Dipak Dave has also relied upon the decision of the Division Bench in case of Kiran Industries, Mehsana Vs. Gujarat Electricity Board, Baroda, reported in 1995(2) GLR 1158, as also unreported judgement of Supreme Court in case of A.P. State Electricity Board Vs. Hindustan Zinc Limited, in Appeal (Civil) No.2567 of 1970 and allied matters to submit that when the public utility undertakings seek to recover the prescribed charges for the supplies and services, and the consumers dispute the validity of such demands raised against them, except in extraordinary cases and in exceptional circumstances, the recovery of the amount should not be stayed. He also submitted that the respondent Company has already initiated action against his errant officer pursuant to the order passed by this Court on 27.7.2018.

4. Having regard to the submissions made by the learned Advocates for the parties, it prima facie appears that the petitioner Company being the consumer other than those referred to in Clause(i) and (ii) of Section 2(a) of the said Act, the rates of duty prescribed in Clause (3)

(a) of Schedule-I would be applicable to the petitioners, however, the petitioners all throughout were charged with the duty as per Clause (4) of Schedule-II of the said Act by the Page 3 of 5 C/SCA/6135/2018 ORDER respondent Company. Though, the respondent Company had stated in its affidavit-in-reply that there was bona fide mistake committed by the officers of respondent Company in preparing billing programme of the petitioner, the Court was of the opinion that it was not a simple bona fide mistake but was a blunder committed by the concerned officers of the respondent Company, as it had resulted into huge loss to the public exchequer. The Court, therefore, had inquired vide order dated 27.7.2018 as to whether any action was taken by the respondent Company against its errant officer. Today, the learned Advocate Mr.Dave for the respondent Company places on record the copies of notices dated 26.7.2018 issued to some two employees, which ex facie appear to be an eyewash.

5. Be that as it may, at present the recovery of amount to the tune of more than Rupees fourteen crore has been sought to be made by the impugned order giving effect from the year 2012, reclassifying the petitioner, and that too, without affording opportunity of hearing to the petitioners, which prima facie does not appear to be legal.

6. In view of the above, the matter requires consideration. Hence, Rule. Learned AGP Mr.Tirthraj Plandya for the respondent Nos.1 and 2 and learned Advocate Mr.Dipak Dave for the respondent No.3 waive service of notice of Rule.

7. Having regard to the peculiar facts and circumstances of the case, and applying the analogy of provisions contained in Section 56(2) of the Electricity Act to the effect that respondent Company could recover the amount with retrospective effect for a period up to two years, it is directed that the recovery of amount of the disputed bill is stayed, subject to the condition that the petitioners shall deposit the Rs.5,00,00,000/- (Rupees five crore only) within three weeks from today, before this Court. On such deposit being made, the same shall be invested in a nationalized bank for a period of five years, which may be renewed from time to time till pendency of the petition. It is needless to say that the said deposit shall be subject to the outcome of the present petition.

(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 5 of 5