Andhra HC (Pre-Telangana)
Uni Metal Alloys Ltd., Hyderabad vs Apseb, Hyderabad And Others on 23 October, 1998
Equivalent citations: 1998(6)ALD558
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
ORDER
1. In this writ petition the petitioner assails the action of the respondents in withdrawing the 25% power rebate allowed to the petitioner from 15-10-1987 to January, 1988 and debiting the total sum of Rs.6,65,875.97 to its account and calling upon the petitioner to pay the said sum to avoid disconnection of power supply.
2. The petitioner established a mini steel plant which went into regular commercial production from 1-2-1985. In G.O. Ms. No.654, dated 13-7-1976 the Government granted 25% rebate on power tariff for certain specified industries for the initial period of three years commencing from the date of going into commercial production. It is not in dispute that mini steel plant was one of the industries specified in the said G.O. and as such the petitioner was entitled for 25% rebate on power tariff, the petitioner was also granted the eligibility certificate by the competent authority that is the Industries Department on 21-3-1985. In B.P. Ms. No. 691, dated 10-8-1976 the APSEB adopted G.O. Ms. No.654, dated 13-7-1976. Accordingly, the petitioner was granted 25% power rebate for a period of three years commencing from 1-2-1985 and ending with 31-l-1988. By B.P. Ms. No.946, dated 14-10-1987 the APSE Board excluded mini steel plants from the list of industries which are eligible for the 25% power rebate w.e.f. 15-10-1987. Pursuant to the said proceedings of the Board, the impugned letter dated 3-11-1988 was issued to the petitioner informing the petitioner that the 25% power rebate which was allowed to the petitioner for the period from 15-10-1987 to 31-1-1988 is withdrawn and the petitioner was called upon to pay a total sum of Rs.6,65,875.97 ps. representing the amount of rebate withdrawn within seven days from the date of the said letter to avoid disconnection of power supply. Hence, this writ petition.
3. The impugned action is assailed by the petitioner on two grounds. Firstly, as the rebate was granted by the Government as a matter of policy the Board has no power to withdraw the same unless and until the Government chooses to withdraw the same. The Government withdrew the rebate to mini steel plants only in the month of July, 1989 by G.O. Ms. No.379, dated 27-7-1989 by which time the petitioner had already completed the initial period of three years. Secondly, the Board is estopped from recovering the amount of power subsidy granted to the petitioner by the principle of Promissory estoppel.
4. In M/s. V.K. Ferro Alloys Industries (P) Ltd. v. the A.P. State Electricity Board and others, , a Division Bench of this Court held that the policy decision taken by the Government in regard to the entitlement of power concession to industries and the order issued in that behalf by the State Government arc binding on the State Electricity Board in view of Section 78(A) of the Electricity (Supply) Act, 1948 and that the Board has no power to withdraw such a concession contrary to the orders of the Government. In the instant case, admittedly, the Government withdrew the concession only on 27-7-1989 by G.O. Ms. No.379, by that date the petitioner has already completed the initial period of three years of commercial production. It, therefore, follows that the petitioner was entitled for the power subsidy for the full period of three years which ended on 31-1-1988. In view of the said Bench judgment which directly covers the first point it may not be necessary to go into the question of promissory estoppel raised by the petitioner.
5. The writ petition is accordingly allowed. There will be no order as to costs.
For being mentioned in WP No. 17129 of 1988 After I dictated and pronounced the order dated 23-10-1998 in the above writ petition in the open Court the learned Standing Counsel for the A.P. State Electricity Board (APSEB) has appeared and made a request for posting the matter for being mentioned on 26-10-1998 as he wanted to place a judgment of the Supreme Court, which is in point. Accordingly this matter has come up today i.e., 26-10-1998 for Being Mentioned
6. I have heard the learned Standing Counsel appearing for the respondents. The learned Counsel for the respondents wanted to file a counter affidavit in the writ petition at this stage as no counter affidavit is filed earlier. I do not think that the respondents can be permitted to file a counter affidavit at this stage after the matter has been heard and order was pronounced.
7. The learned Counsel for the respondents sought to place reliance on the judgment of the Supreme Court in M/s. Real Food Products Ltd., v. APSE Board, . One of the questions which arose for consideration in that case was whether a direction under Section 78-A of the Electricity (Supply) Act, 1948 (for short 'the Act') by the State Government is binding on the Board or whether such directions are merely of guidance and the Board in formulating tariffs would yet be required to apply its mind independently to all the relevant material. That question arose in the context of a direction issued by the State Government to the Electricity Board to fix the concessional tariff for agricultural pumpsets at a flat rate per H.P. which was accepted by the Board. The argument was that tlie Board abdicated its statutory obligations without application of mind in accepting the concessional tariff suggested by the State Government. The Supreme Court, however, rejected the said contention holding that the direction of the State Government does relate to question of policy which the Board must follow. In indicating tlie specific rate in a given case, the action of the State Government may be in excess of the power of giving a direction on the question of policy, which the Board, if its conclusion be different, may not be obliged to be bound by. But where the Board considers even the rate suggested by the State Government and finds it to be acceptable in the discharge of its function of fixing the tariffs, the ultimate decision of the Board would not be vitiated merely because it has accepted the opinion of the State Government even about the specific rate. In such a case the Board accepts the suggested rate because that appears to be appropriate on its own view. If the view expressed by the State Government in its direction exceeds the area of policy, the Board may not be bound by it unless it takes the same view on merits itself."
8. I do not think that these observations made by the Supreme Court are of any assistance to the respondents in the instant case. The direction to allow 25% rebate on power tariff for certain specified industries for the initial period of three years commencing from the date of going into commercial production, is certainly a matter of policy and the Board is bound to follow the direction granted by the State Government in this behalf under Section 78-A of the Act. The learned Counsel for the respondents, however, contended that the Board as a matter of policy has amended the list of industries eligible for this concession in B.P. Ms. No.946, dated 14-10-1987, whereby mini steel plants are deleted from the list of eligible industries and the petitioner is therefore not entitled for the power subsidy with effect from 15-10-1987. However, the State Government withdrew the concession to the mini steel plants only on 27-7-1989 by G.O. Ms. No.379. That apart the question is concluded by the Division Bench of this Court in Ms. V.K. Ferro Alloys Industries (P) Ltd. v. The A.P. State Electricity Board and others (supra).
9. I do not, therefore, find any valid reasons to modify the order passed on 23-10-1998. The order will stand- It is, however, clarified that if the Board is entitled for reimbursement of the rebate allowed to the petitioner for the said period, the Board may seek such reimbursement from the Government in accordance with law.