Gujarat High Court
M/S Jaybharat Metcast Pvt. Ltd. vs State Of Gujarat on 9 December, 2020
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/7251/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7251 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7273 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7280 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7283 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7284 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7278 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7279 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7281 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7285 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7286 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7287 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7288 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7419 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7410 of 2020
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M/S K B ISPAT PRIVATE LIMITED
Versus
STATE OF GUJARAT
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Appearance:
MR ABHISHEK M MEHTA(3469) for the Petitioner(s) No. 1
PARAM V SHAH(9473) for the Petitioner(s) No. 1
for the Respondent(s) No. 3
MS MANISHA LAVKUMAR GOVERNMENT PLEADER with MR DHAWAN
JAYSWAL AGP (1) for the Respondent(s) No. 1
MR KAMAL TRIVEDI, SR. ADVOCATE WITH MR PREMAL R JOSHI(1327)
for the Respondent(s) No. 2
MR MIHIR JOSHI, SR. ADVOCATE WITH MS AMRITA M THAKORE(3208)
for the Respondent(s) No. 4
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CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 09/12/2020
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C/SCA/7251/2020 ORDER
ORAL ORDER
1. Since all these petitions raises common issues to be determined, it is decided by this common judgment and order.
2. Since lead matter argued by Mr.Abhishek Mehta, learned advocate for the petitioners, being Special Civil Application No.7251 of 2020, the facts are incorporated from the said Special Civil Application.
3. By these petitions, respective petitioners have prayed that benefits extended by the State Government vide Resolution dated 27.03.2020 for the electricity consumption considering unprecedented situation of pandemic, whose trade / commerce/ industry were shut because of the lock-down ordered by the Government, from payment of demand / fixed charges in the electricity bill for the month of April, 2020 be extended for further period of time till the lock-down is continued / extended. Over and above that, it is also prayed that, electricity dues levied may also be waived and the outer limit of payment of electricity bill may also be extended at-least for one month. It is further prayed that minimum charges / fixed charges for the electricity bill be directed to charge and collect on pro-rata per day basis in place of fixed charges collected on monthly basis for the financial year 2020-21. Page 2 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER
4. The petitioners are Industries carrying on their businesses using the electricity supplied by Paschim Gujarat Vij Co. Ltd. (for short, 'PGVCL').
5. The petitioners are High Tension (for short, 'HT') electricity consumers and they are covered under HTP IV Tariff. As per the Tariff, the petitioners have to pay a minimum demand charge (Fixed charge) considering 85% of contract demand, if the actual demand is less than or equal to that. If the actual demand is more than 85% of the contract demand, then the demand will be charged as per actual demand recorded during the billing month.
6. If the petitioners do not undertake any manufacturing activities for whatsoever reason, petitioners are bound to pay minimum contract demand charges.
7. It is further the case of the petitioners that pursuant to the D.O. letter by the Secretary (Labour & Employment), Government of India, dated 20.03.2020 to all Chief Secretaries of States or Union Territories requesting them to issue necessary advisory to employers / owners of all establishments in the State to extend their cooperation by not terminating their employees, particularly, casual or contractual workers from job or reduce their wages, as per the said letter, if any worker Page 3 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER takes leave, he should be deemed to be on duty without any consequential deduction in wages for this period. Further, if the place of employment is to be made non-operational due to COVID-19, the employees of such unit will be deemed to be on duty. It is further the case of the petitioners that the Prime Minister announced nationwide lock-down initially for 21 days from 24.03.2020 to 14.4.2020 in the wake of COVID-19 pandemic. The Home Secretary, Ministry of Home Affairs in his capacity as a Chairperson, National Executive Committee, while exercising the power conferred under Section 10(2)(l) of the Disaster Management Act vide order dated 24.03.2020 issued guidelines to implement lock-down to contend that spread of COVID-19 in all parts of the country for the period of 21 days with effect from 25.03.2020, which thereafter came to be extended time and again and presently stands extended till 31st May, 2020. It is further the case of the petitioners that all economic activities in the country came to be at standstill. The people at large, as also the industries, were faced with unprecedented hardships, be it financially or otherwise.
8. Pursuant to the various representations from various quarters, more particularly the Industries, the Government has passed a Resolution dated 27.03.2020 declaring benefit / concession in payment of electricity bill as also the liability to pay it. Vide the said Resolution, State Government directed that because of lock-down situation, these Page 4 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER electricity consumers should have been issued electricity bills bi- monthly i.e. from 1.3.2020 to 30.4.2020 and all these consumers were permitted to pay the same by 15th May, 2020. It was further directed that during the extended period for payment of electricity bill, there shall not be any electric disconnection or no late payment charges could be levied by the electricity company, distribution licensees. It was further stated in the said resolution that the trade / industry remained shut because of lock-down, no minimum charge that means demand / fixed charges be levied for the month of April and the Distribution Companies were directed to charge only for actual user of the electricity.
9. It is the case of the petitioners that because of lock-down, there was no economic activities and debts were mounting seeing no respite inspite of restarting the manufacturing activities. State of uncertainty prevailed, which was unparalleled in history not only of this country but of the world. Therefore, it needed extraordinary steps to be taken by the Central or State Governments.
10. It is further the case of the petitioners that the trade / industry remained shut because of lock-down not only for the month of April,2020 but for the month of May and June, 2020 as well. The manufacturing activities of the petitioners affected not only during the period of shut down but thereafter also because of various reasons Page 5 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER including non-availability of workforce. Even after the unlock in a phased manner, the labourers of the other States have migrated and due to non-availability of them, manufacturing activities suffered a lot. It is further the case of the petitioners that the Association of which they are members made representation to the State Government for extending the benefit / concession in the demand / fixed charges for the month of May and June, 2020 i.e. till the date Industries remained shut because of lock-down. It is further the case of the petitioners that if any benefit / concession is to be granted for the reason that because of lock-down Industries remained shut, it did not remain shut for one month i.e. April, 2020 but continued thereafter also. Therefore, State is to extend the said benefit / concession till it ordered total lock-down not permitting any manufacturing activities to be carried on by the Industries.
11. Mr.Abhishek Mehta, learned advocate for the petitioners submitted that considering the plight of trade / commerce / industry which remained shut because of the lock-down, when the State Government granted benefit / concession in the form of waiver of demand / fixed charges in electricity bills for the month of April, 2020, actual lock-down extended beyond even the month of April, 2020 and the Industry remained shut for the extended period too. Therefore, according to his submission, the said benefit / concession is required to Page 6 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER be extended till the lock-down period remained in force. It is further submitted that there is no change in situation of the Industry beyond the month of April, 2020, and therefore, there is no reason for the State Government not to extend the same for the period of May and June, 2020 also where Industry remained shut because of the lock-down.
12. It is further submitted that even after unlock started in phased manner, Industry could not function for various reasons like non- availability of raw material, non-availability of labourers and non- availability of liquidity in the hands of persons manning industry. It is further submitted that though Industry remained shut, they were supposed to pay overhead expenses regularly. Though, there was no earning during the period of lock-down, they were supposed to expend on the wages, liabilities incurred prior to shut down and other charges. Therefore, according to the submission of Mr.Mehta, learned advocate for the petitioners, there is no reason not to extend the same for a total period of shut down / lock-down ordered by the State Government.
13. It is further submitted that various State Governments like Punjab, Uttar Pradesh, Telengana, etc. have extended such benefits / waiver for a period of two months over and above ordering differed payment of bills without penalty and interest towards economic relief package. It is further submitted that the Union Power Ministry has extended Page 7 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER Rs.90,000/- crores package under the 'Atmanirbhar Bharat Abhiyan'.
14. It is further submitted that since the State Government in its wisdom has waived demand / fixed charges for the month of April, 2020, there is no justification whatsoever for not extending the same benefit for the months of May and June, 2020 as the situation is more or less identical with hardly any changes as compared to the situation that was prevailing in April, 2020. Even if lock-down might have been partially modified with certain restrictions eased out but the Industry is still facing complete recession and hardly any workers were available for manufacturing process and because of that reason, there is hardly any revenue generation. Therefore, according to the submission of Mr.Mehta, learned advocate for the petitioners, action of the State Government not extending the said benefit for the month of May and June, 2020 is unsustainable on the touchstone of Articles 14 and 19 (1)
(g) of the Constitution of India.
15. It is further submitted that the decision with regard to grant of waiver in respect of demand / fixed charges for the month of April, 2020 is open to the judicial review of this Hon'ble Court under Article 226 of the Constitution of India and the State can be called upon to disclose as to why the benefit / concession have not been extended to the month of May and June, 2020 when the very basis of issuing Resolution was still Page 8 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER surviving and not changed. It is further submitted that even discretion is available to the State and exercise thereof has to be started by application of mind and the outcome of the said decision ought to commensurate with the reasoning for which the said decision was taken. It is further submitted that the arbitrariness in action is evident from the fact that though the same situation is continuing, the resolution issued in the month of March, 2020, providing for benefits for the month of April, 2020 has not been extended thereafter. It is further submitted that though represented, of-course through Association, for extending the benefit for the month of May and June, 2020 or till the lock-down continued, not taking a decision is also a decision in itself. It is further submitted that constituting a committee to provide economic revival measures and/or physical structuring is not an answer to the issues raised hereinabove by the petitioners and/or reason to refuse extension of the benefit provided in the Resolution. It is further submitted that economic package i.e. Gujarat Atmanirbhar Package in the wake of the pandemic vide Government Resolution dated 5th June, 2020 providing economic benefit to the extent of Rs.14,022.26 Crores is inconsequential as far as grievances of the petitioners are concerned. Relying on a decision in the case of Hari Ram and another V/s. State of Haryana and others reported in (2010) 3 SCC 621, it is submitted that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, Page 9 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER even in contractual matters fails to satisfy the test of reasonableness, it would be unconstitutional.
16. It is further submitted that the exercise of the power by the High Court under Article 226 of the Constitution of India in the matters of policy decision is mere self restraint rather than power and it is also open for the High Court to take judicial review in respect of such decision. Therefore, it is submitted that the policy decision of the State Government is not immune to challenge in writ jurisdiction and is not absolute ban and/or if on scrutiny it is found to be unreasonable or without application of mind or irrational or unfair, the same can be set aside by the Hon'ble Court.
17. Drawing attention of the Court to the Resolution dated 22.06.2020, it is submitted that since the Distribution Licensees are to be reimbursed in respect of charges for the losses they incur, it does not lie in the mouth of the respondent Distribution Licensees to oppose the grant of same benefit / concession for the month of May and June, 2020. If the State Government grants such relief, it will in no manner cause any prejudice to the interest of the Distribution Licensees. Therefore, it is submitted that the issue raised, in reply, by the Distribution Licensees in respect of losses incurred by them, is unconstitutional. It is further submitted that the action of the respondent- Page 10 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER State to restrict the benefit /concession under Resolution dated 27.03.2020 by clarificatory Resolution dated 5.6.2020 granting the said benefits to the Low Tension (for short, 'LT') consumer is discriminatory denying the same benefit to the HT consumers.
18. In rejoinder submission to the submissions made by the learned counsel appearing for the respondents, more particularly, dealing with the precedents relied on, it is submitted that these precedents are not applicable to the facts of the present case and have been rendered in a complete different scenario, which is unsustainable to the situation in which exemption is granted by the respondent-State and extension of which the petitioners are seeking for from this Court.
19. As against that, Ms.Manisha Lavkumar, Government Pleader, learned counsel submitted that the Resolution dated 27.03.2020 extending the benefit / concession/ privilege / exemption is uniformly applicable to all consumers under Clause 2 thereof and there is no question of any arbitrariness in the action of the State Government. She has further submitted that the Resolution dated 30 th March, 2020 is clarificatory whereby clarifying that such benefit / concession is for all such consumers i.e. commercial / industrial, which were totally shut down to be eligible to get such benefit of waiver.
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20. Drawing attention of the Court to the Resolution dated 11.05.2020, it is submitted that it does not restrict the waiver, on the contrary if expands the wings of economic package by entitling HT consumers who have consumed less than 50% of electricity for the month of April, 2020 to the average consumption of electricity in the month of preceding 3 months to the lock-down i.e. January, February and March, 2020 and therefore, it is submitted that the contention raised is fallacious when it is argued that it restricted the benefit to HT consumers and it is discriminatory.
21. It is further submitted that the benefit / concession granted by the State for the month of April, 2020, as stated in the Resolution dated 27.03.2020, is as such the policy decision by State and therefore, unless the said decision is shown to be arbitrary, it cannot be interfered with by the Court under Article 226 of the Constitution of India.
22. It is further submitted that since the petitioners have failed to show any beach of fundamental right or even legally enforceable right, these petitions are not required to be entertained under Article 226 of the Constitution of India. It is further submitted that to have exemption, as mentioned in the Resolution itself, the conditions are required to be fulfilled and those who have fulfilled the conditions are entitled to the benefits arising out of the Resolution. Therefore, as a matter of right, Page 12 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER petitioners cannot claim that the said benefits should be extended for a further period of May and June, 2020, which is uncalled for.
23. It is further submitted that keeping in mind the plight of the trade / commerce/ industry, who have remained shut because of the lock-down ordered, the said benefit is extended for a month of April, 2020. Since the said policy decision has financial implications, the State cannot be asked to extend the same for the period of May and June, 2020.
24. To the submission that other States have granted it for two months and therefore, it should be at least extended for a period of May and June, 2020, it is submitted that on the basis of what other State Governments have done, petitioner cannot request to grant the same benefits based on the action of other State Governments.
25. It is further submitted that the petitioners have no fundamental or legal right to ask the State to extend the said benefit for a period of May and June, 2020 also and therefore, the petitions are required to be rejected. She has also relied on following judgments.
(A) In the case of Shree Sidhbali Steels Limited and others V/s. State of Uttar Pradesh and others reported in (2011) 3 SCC 193;
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(B) In the case of Commissioner of Customs (Import), Mumbai V/s. Dilip Kumar and Company and others reported in (2018) 9 SCC 1;
(C) In the case of Indian Oil Corporation Limited and Another V/s. Kerala State road Trading Corporation and others reported in (2018) 12 SCC 518, and (D) In the case of Vasavi Engineering College Parents Association V/s. State of Telangana and others reported in (2019) 7 SCC 172.
26. Mr.Kamal Trivedi, Senior Advocate, learned counsel assisted by Mr.Premal Joshi, learned advocate for Respondent No.2 - PGVCL, submitted that the decision to grant or not to grant exemption for charges is the policy decision, and therefore, unless it is shown that the said policy decision is arbitrary, no prayer for extending the same for a period beyond mentioned in the said decision be prayed for.
27. It is further submitted that the grant of benefit / concession / exemption is a privilege and it cannot be claimed as a matter of right. It is submitted that no writ lies for extending or continuing the benefit of Page 14 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER privilege in the form of concession. Even the privilege granted can also be withdrawn at any time and such policy decision are not amenable to judicial review.
28. It is further submitted that the Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy nor are Courts advisors to the executives on matters of policy, which the executives are entitled to formulate. When the State Government, in its wisdom, granted exemption for a particular month and not extended it, though requested for by the petitioners, and in its wisdom also differed the payment of demand / fixed charges in four equal installments without interest for the month of May, 2020, the legality of such policy decision can never be the subject matter of judicial review.
29. It is further submitted that the demand charges are in the nature of fixed cost. For maintaining the power supply to the consumers, Distribution Licensee has to make arrangements in terms of establishing and maintaining various equipments, substations, lines etc. collectively known as distribution network and further make arrangements to procure power from the generating companies and enter into arrangements with transmission companies to transmit the power from the premises of generating company to the distribution Page 15 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER network. Thus, for the purpose of supply of electricity, there are long term arrangements to be made involving establishing of the power plants and transmission and distinction networks which involve fixed costs i.e. cost, which are incurred irrespective of electricity being generated or transmitted or supplied to consumers. In addition to the infrastructure being created, there are also certain other costs such as the employee costs and operation and maintenance expenses which are also in the nature of fixed costs. The above fixed costs are both costs to be paid to the generating companies and transmission licensees as well as what is incurred directly by the distribution licensees towards its own networks / employees, etc. Therefore, it is submitted that even if any policy decision is taken by the State Government to exempt or waive demand / fixed charges, the Distribution Licensees has to bear the burden.
30. Over and above, it is further submitted that the charges / tariff is determined by the Regulatory Commission under the Electricity Act, 2003, levying fixed charge is also not at the discretion of the Distribution Licensees but it is to be determined by the Regulatory Commission. The Distribution Licensee is required to incur the fixed charges irrespective of whether consumer actually consumes power or not. Page 16 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER
31. It is further submitted that the contention that Distribution Licensees is to be reimbursed all the loss caused to them, as argued by the learned advocate for the petitioners, is misconceived. The reliance placed on the Resolution dated 22nd June, 2020, to argue the same, the learned advocate for the petitioners, has missed a very crucial provision in it that the reimbursement is to be done for the waived electricity bills in respect of residential consumption only under the 'Gujarat Atmanirbhar Package" and the conditions mentioned therein. Therefore, in the case of LT/ HT consumers, as such, there is no reimbursement provided for, and therefore, the contention raised by the learned advocate for the petitioners is misconceived and required to be rejected outright.
32. It is further submitted that if the said benefit / concession is extended for a period, as claimed for by the petitioners, respondent No.2 would be at a huge loss and run out of pocket. Therefore, the claim made by the petitioners for extending benefit / concession for the month of May and June, 2020 is not supported by any valid point. As such, the request made by the petitioners, through its association, praying for continuation of the said benefit / concession for the month of May and June, 2020, can be said to be specifically refused, when instead differed payment of the same without interest in four equal installments starting from September, 2020 is granted by the State. It Page 17 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER is, therefore, submitted that denial of the same is not shown to be in any way arbitrary so as to interfere with the same, being policy decision of the State Government. It is further submitted that it is for the State Government to decide whether to grant or not to grant said benefit / concession for a further month of May and June, 2020 and not by the Court to decide the same. Therefore, it is submitted that the petitions are required to be rejected. Following judgments are relied on by Respondent No.2.
(A) In the case of State of Punjab and others V/s. Ram Lubhaya Bagga and others reported in (1998) 4 SCC 117;
(B) In the case of Sidheshwar Sahakari Sakhar Karkhana Ltd. V/s. Union of India and others reported in (2005) 3 SCC 369;
(C) In the case of State of Orissa and others V/s.
Gopinath Das and others reported in (2005) 13 SCC 495; (D) In the case of Directorate of Film Festivals and others V/s. Gaurav Ashwin Jain and others reported in (2007) 4 SCC 737;
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(E) In the case of Shree Sidhbali Steels Ltd. and others V/s. State of Uttar Pradesh and others reported in (2011) 3 SCC 193;
(F) In the case of Ayaaubkhan Noorkhan Pathan V/s.
State of Maharashtra and others reported in (2013) 4 SCC 465, and (G) In the case of Indian Oil Corporation Ltd. and Another V/s. Kerala State Road Trading Corporation and others reported in (2018) 12 SCC 518.
33. Mr.Mihir Joshi, Senior Advocate, learned counsel submitted that the present petitions are not maintainable as prayers made in it, if granted, stand to modify the statutory contract or seeking modifications thereof. It is further submitted that no equitable principles can be pressed into service as it cannot override terms of statutory contract.
34. It is further submitted that general prayers are made in the petitions as if Association, where petitioners are members is petitioning and it covers all the industries in Gujarat. Since Mr.Abhishek Mehta, learned advocate for the petitioners has made it clear that these Page 19 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER petitions filed in a capacity as individual, may be as Members of Association, it is not filed through the Association and it be treated as individual petitions by an individual. Therefore, Mr.Joshi, did not elaborate his arguments to object to the petitions and therefore, it is not dealt with in detail.
35. It is submitted that the present petitions are misconceived as petitioners and Respondent No.4 have a relationship of Distribution Licensees and a consumer to whom it undertakes sale of electricity under the provisions of Electricity Act, Rules, Supply Code under a statutory contract. Therefore, it is submitted that the parties by their will bind themselves accordingly as per the contract. It is, therefore, submitted that there cannot be any interdiction by the State to such a contract by way of such exemption. At any rate, it cannot be further granted by the State considering the mutual contractual obligations between the parties.
36. According to the submissions of Mr.Joshi, Senior Advocate, learned counsel grant of such benefit / concession in the present form or to extend it for a period of May and June, 2020, would amount to modification of tariff statutorily determined by a statutory commission, which is not permissible by the action of the State. Referring to Sections 2(15), 42, 43, 45 to 49, 61, 62(d), 65 and 108 of the Electricity Act, Page 20 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER 2003, it is submitted that no such petitions praying for relief as claimed in it which amounts to modifying statutory contract are maintainable.
37. It is further submitted that the only provision for grant of subsidy by the State Government is provided under Section 65 of the Electricity Act. Even if, the State wants to grant any subsidy to the electricity consumers, said portion thereof it has to pay in advance, to the person affected by the grant of subsidy in the manner State commission may direct as a condition for the license or any other person concerned to implement the subsidy provided for by the State Government. Thus, it is clear that according to the submission of Mr.Joshi, Senior Advocate, learned counsel, no sacrifice of tariff is contemplated under the Electricity Act.
38. It is further submitted that when a Resolution dated 5.6.2020 provides for differed payment of demand / fixed charges for the month of May, 2020 by the HT consumers starting from September, 2020 to December, 2020 in equal installments without interest it would amount to specifically refusing the waiver for the month of May and June, 2020, as claimed, that too, without challenging the policy decision dated 5.6.2020 and therefore, no such petitions can be entertained by the Court.
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39. Mr.Joshi, Senior Advocate, learned counsel relied on following decisions.
(A) In the case of Census Commissioner V/s. R.
Krishnamurthy reported in (2015) 2 SCC 796;
(B) In the case of Anil Kumar V/s. Union of India
reported in (2019) 5 SCC 591;
(C) In the case of Director of Settlements A.P. V/s.
M.R. Apparao reported in (2002) 4 SCC 638;
(D) In the case of State of Bihar V/s. Amrendra Kumar
Mishra reported in (2006) 12 SCC 561;
(E) In the case of Mani Subrat Jain V/s. State of
Haryana reported in (1977) 1 SCC 486, and
(F) In the case of Tirumala Tirupati Devasthanams
V/s. K. Jotheeswara Pillai reported in (2007) 9 SCC 461.
40. Considering the unprecedented prevalent situation of pandemic arising from COVID-19, with a view to give relief/ benefit / concession to electricity consumers, the State Government vide a Resolution dated Page 22 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER 27.3.2020 decided to differ the payment of bi-monthly bills of the electricity consumers who are issued bills from 1.3.2020 to 30.4.2020 till 15th May, 2020 without late payment charges and the Distribution Licensees were directed not to disconnect the said supply. Over and above that, in respect of trade / industry, which remained shut because of lock-down, the demand / fixed charges from such consumers for the month of April, 2020 was not to be charged and only the bill for consumption charges was to be raised by the Distribution Companies of the State. The Distribution Companies were to bear the economic burden thereof. Since these petitions concern the benefit / concession provided for from payment of demand / fixed charges for the month of April, 2020, which remained shut because of lock-down ordered by the Government, other provisions made in the said resolution need not be gone into. Resolution dated 27.03.2020 came to be clarified that the grant of benefit of demand / fixed charges for the month of April, 2020 would be granted to only those Commercial / Industrial Units, which were shut down and that "all such consumers" i.e. Commercial / Industrial Units, which were totally shut down, would be eligible to get the said benefit of waiver referred to hereinabove. Despite above said clarificatory Resolution, there was no clarity with the Distribution Companies as to whether there should be any distinction between LT consumer and HT consumer with respect to grant of benefit of waiver of demand / fixed charges for the month of April, 2020.
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41. As such, the said benefit / concession is available for the trade / industry which were shut down because of the lock-down ordered by the Government. However, vide Resolution dated 11.05.2020, it further extended the benefit even to LT consumers such as trade / industry / shop, either it remained shut or continued during the period of lock- down granting exemption from demand / fixed charges. However, so far as HT consumers are concerned, benefit of the said exemption extended from the payment of demand / fixed charges for the month of April, 2020 who have consumed less than 50% of the average monthly energy consumption of previous 3 months i.e. January, February and March, 2020. The said Resolution further clarified that the essential services like Bank, Telephone, Refinery, dairy and Hospital, which were operational during the lock-down period, they are not to be given any benefit thereof. The private hospitals have been granted benefits as it granted to HT consumers. Thus, the intention of the State Government for the grant of benefit / concession in respect of demand / fixed charge is to the trade / commerce / industry, which remained shut during the period of lock-down, that too, for the month of April, 2020 only.
42. To grant such benefit, that too, by the State Government conferring certain benefits / concession to trade / commerce / industry, which remained shut because of the lock-down over a particular period Page 24 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER is surely a policy decision by the State Government. The said policy decision is taken as a one time measure for a particular period unless extended by the State itself, the Court cannot meddled into the policy decision of the State in absence of any arbitrariness in it. As such, the said policy decision touches the financial implications. It is not concern of the petitioners or of the Court, who is to bear the cost thereof. Since Distribution Licensees who have to bear the cost have not preferred any petition, the said issue is not required to be gone into. However, petitioners cannot contend that since Distribution Licensees can request the State Government for making good that loss under any relief package, the State should extend it for further period till lock-down continued.
43. As such, to boost up the economy of the State facing an adverse situation because of COVID-19, Pandemic, declared 'Gujarat Atmanirbhar Package' vide Resolution dated 5th June, 2020. Under the said Resolution, while granting the same benefit / concession in respect of demand / fixed charges for the month of May, 2020 to LT consumers, a conscious departure is made by the State in respect of HT consumers who have been, instead of waiver of fixed charges, they have been provided for differed payment towards demand / fixed charges for the month of May, 2020 starting from September, 2020 to December, 2020 in four equal monthly installments without any interest. Thus, after Page 25 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER considering various financial implications and with a view to provide maximum benefit to the maximum trade / commerce / industry, a distinction is made in between the LT consumers and HT consumers. As such, it has not been argued that there is any discrimination shown to HT consumers. The HT consumers are treated equally so far as grant of benefit / concession of waiver towards demand / fixed charges for the month of May, 2020. At any rate, petitioners have failed to show that how and in what manner a conscious policy decision taken by the State providing only differed payment without interest in four equal installments of demand/ fixed charges for the month of May, 2020, is arbitrary.
44. If any policy decision taken by the State granting benefit / concession can be withdrawn, modified, amended or canceled, non grant of the said benefit consciously for a further period, even if situation remained same, can never be said to be arbitrary action of the State. Waiver of demand / fixed charges by the State is a matter of privilege to be extended by the Government. It cannot be claimed as of right. The reliance placed in the decision in the case of Indian Oil Corporation Ltd. and another (supra), more particularly, para-15 thereof, would be profitable to refer.
"15. Firstly, coming to the issue of the policy framed by the Government of India; the grant of subsidy is a matter of Page 26 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER privilege, to be extended by the Government. It cannot be claimed as of right. No writ lies for extending or continuing the benefit of privilege in the form of concession. Subsidy is the matter of fiscal policy. Such privilege can be withdrawn at any time is the settled proposition of law. Thus, it was open to the Government of India to take a decision to withdraw the subsidy enjoyed by the bulk consumers; and, it was a decision based upon the aforestated rationale to direct funds for social welfare scheme for common man and that by grant of subsidy, the OMCs had suffered heavy losses, and had borrowed the excessive money to the extent indicated in the aforesaid paragraphs. Thus, it was decided by the Government of India, not to the extend subsidy to bulk consumers; same could not be said to be an arbitrary decision, discriminatory or in violation of the principles contained in Article 14 of the Constitution of India.
16. Such policy decisions are not amenable to judicial review. In State of Rajasthan v. J.K. Udaipur Udyog Ltd. (2004) 7 SCC 673, this Court has observed that exemption is a privilege. In fiscal matters the concession granted by the State Government to the beneficiaries cannot confer upon them legally enforceable right against the Government to grant a concession, except to enjoy the benefits of the concession during the period of its grant.
Enjoyment is defeasible one and can be taken away in exercise of very power under which such exemption was granted. This Court observed :
Page 27 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER
"25. An exemption is by definition a freedom from an obligation which the exemptee is otherwise liable to discharge. It is a privilege granting an advantage not available to others. An exemption granted under a statutory provision in a fiscal statute has been held to be a concession granted by the State Government so that the beneficiaries of such concession are not required to pay the tax or duty they are otherwise liable to pay under such statute. The recipient of a concession has no legally enforceable right against the Government to grant of a concession except to enjoy the benefits of the concession during the period of its grant. This right to enjoy is a defeasible one in the sense that it may be taken away in exercise of the very power under which the exemption was granted. (See Shri Bakul Oil Industries v. State of Gujarat (1987) 1 SCC 31, Kasinka Trading v. Union of India (1995) 1 SCC 274 and Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398)."
45. Considering the ratio laid down in the aforesaid decision of the Supreme Court, if no writ lies for extending or continuing the benefit of privilege in the form of concession, the petitioners cannot surely claim the said benefit / concession for a further period of May and June, 2020 or till the lock-down continued as of right. It is for the State Government to decide and it has already determined by granting deferment in the payment of demand / fixed charges for the month of May, 2020 which would be beneficial decision by the State to the petitioners. If benefit / concession granting waiver from demand / fixed charges can be said to Page 28 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER be a privilege, which can be withdrawn at any time, there is no question of seeking same benefit, which is granted for the month of April, 2020 to be continued for the month of May and June, 2020 more particularly, when State has only granted deferment of the payment thereof for the month of May, 2020 in four equal monthly installments starting from September, 2020 without interest. As held in it the concession granted by the State Government to the beneficiaries cannot confer upon them legally enforceable right against the Government to grant a concession except to enjoy the provisions of the concession during the period of its grant. The petitioners are the recipient of concession by way of waiver from payment of demand / fixed charges for the month of April, 2020 and have no legally enforceable right against the Government to grant the concession except to enjoy the benefits of the concession during the period of its grant.
46. The decision relied on by the learned advocate for the petitioners in the case of Hari Ram (supra) to contend that the policy decision must satisfy the test of reasonableness is misplaced. As such, learned advocate for the petitioners has failed to show that how the earlier decision reached by the State is, in any way, unreasonable. On the contrary, it grants benefit / concession to all the electricity consumers in the State of Gujarat considering the unprecedented situation created by pandemic because of COVID-19. Therefore, the contention raised by Page 29 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER the learned advocate for he petitioners as also the judgment relied on by him is not applicable in the facts of the present case.
47. The another contention raised by the learned advocate for the petitioners is also required to be rejected outright so far as the argument that other States have granted such benefit for a period of 2 months. As such, the said instance is not comparable at all. Other States on their assessment of all other relevant factors based on their resources may grant it for 2 months. However, that cannot be the ground to grant the same benefit by the State of Gujarat and therefore, there cannot be any comparison in the matter of policy in between the States. At any rate, it cannot be the ground, that too, under a judicial review to direct the State Government to extend it for a further period of May and June, 2020.
48. One more contention raised by the learned advocate for the petitioners is that action of the State is discriminatory in between the LT consumers and HT consumers of electricity. As such, LT consumers and HT consumers are not comparable at all. Both are distinct users. So far as LT consumers are concerned, the policy decision of the State is uniform. At the same time, the benefit flowing from the policy decision for the HT consumers is also uniform. The comparison between LT consumers and HT consumers on the point of discrimination is not correct. So far as certain HT consumers, who satisfy the conditions Page 30 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021 C/SCA/7251/2020 ORDER mentioned therein, have been granted the benefit, despite the fact that their activities were totally shutdown or not. Whereas, LT consumers are concerned, the said benefit is conferred on the trade / commerce/ industry, which were totally shut down because of the lock-down ordered by the Government. Therefore, the contention raised with regard to discrimination between the LT consumers and HT consumers is not valid and it is rejected outright.
49. Therefore, the claim that the waiver of demand / fixed charges granted for the month of April, 2020 should be extended for the month of May and June, 2020 or till the lock-down is continued is misconceived.
50. Therefore, in my view, these writ petitions are devoid of merits and therefore, they are hereby rejected. Notice discharged.
Copy of this judgment be placed in each of the matters.
(UMESH A. TRIVEDI, J) PATEL ILA KANTIBHAI / Ashish Page 31 of 31 Downloaded on : Sun Feb 21 19:58:28 IST 2021