Gujarat High Court
Saurastra Cement Limited Through Its ... vs State Of Gujarat on 9 December, 2020
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/7639/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7639 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SAURASTRA CEMENT LIMITED THROUGH ITS AUTHORISED
REPRESENTATIVE
Versus
STATE OF GUJARAT
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Appearance:
MR R.S.SANJANWALA, SR. COUNSEL WITH MR NIKUNT K RAVAL(5558)
for the Petitioner(s) No. 1
for the Respondent(s) No. 1,3
MS MANISHA LAVKUMAR GOVERNMENT PLEADER with AISHWARIYA
GUPTA AGP for Respondent: 1
MR KAMAL TRIVEDI, SR. ADVOCATE WITH MR PREMAL R JOSHI(1327)
for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 09/12/2020
ORAL JUDGMENT
1. By way of this petition, the petitioner had initially prayed for following reliefs.
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(A) Issue appropriate writ, order or direction directing the
Respondent No.1 to extend the operation of Notifications dated 27.3.2020 and 30.3.2020 as annexed at Annexure-D (Colly.) above to this petition, for the month of May, 2020 as well;
(B) Issue appropriate writ, order or direction quashing and setting aside additional bill and demand dated 08.06.2020 as annexed Annexure-I to the petition and as issued by the Respondent PGVCL;
(C) Issue appropriate writ, order or direction holding the clarification dated 11.05.2020 as annexed at Annexure-G to the petition as being bad in law in so far as the same restricts the benefit granted vide notification dated 27.03.2020 and 30.03.2020 to only such HT Units as have consumed less than 50% average electricity demand for the three months immediately preceding prior thereto; (D) Pending hearing and final disposal of the present writ petition restrain the Respondents from recovering the HT Bill to the tune of the disputed amount (i.e. Rs.90, 05, 667.25 (Rupees Ninety Lakh Five Thousand Six Hundred Sixty Seven and Twenty Five Paise per month) dated 08.06.2020 for the month of July, 2019 and restrain Respondent PGVCL from acting upon the said HT Bill by levying any Delayed Payment Charges, etc. and/or taking any coercive action;
(E) Pending hearing and final disposal of the present Writ Petition restrain the Respondents from raising demand for fixed charges and electricity duty from the petitioner for the month of May 2020 and consequently extend the benefit of notification dated 27.3.2020 and 30.3.2020 for the month of May, 2020 as well;
(F) Grant ex-parte ad interim relief in terms of para (D) and (E) above;
(G) Pass any such further order / direction which this Hon'ble High Court may deem fit and proper in the facts and circumstances of the case.
2. However, while hearing the matter, the petitioner did not press Page 2 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT the prayer 10(A) to the petition, which is recorded in order dated 21.08.2020 of this Court. Therefore, for the rest of the prayers made in this petition, it is heard and decided accordingly.
3. The petitioner had filed draft amendment also adding one paragraph, a ground and substitution of prayer (D) as mentioned in the draft amendment. The said amendment came to be granted by the Court vide an order dated 21st August, 2020.
4. By this petition, petitioner challenges a communication from the office of the Executive Engineer, Rural Divisional Office, Porbandar, PGVCL dated 8.06.2020 addressed to the petitioner directing for payment of demand / fixed charges and electricity duty amounting to Rs.90,05,667.25 in view of the Government Resolution dated 11.05.2020. At the same time, the petitioner has also challenged the Resolution dated 11.5.2020 whereby it restricts the benefit granted vide Notification dated 27.3.2020 and 30.3.2020 to only such HT Units as have consumed less than 50% average electricity consumption for the three months immediately preceding prior thereto.
5. However, the petitioner has already paid the aforesaid charge subject to his right and contentions raised in this petition as declared by him.
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C/SCA/7639/2020 JUDGMENT 6.1 The petitioner is a cement manufacturing company engaged in the business of manufacturing of cement and has its plant and office at Ranavav, District : Porbandar, Gujarat. The petitioner has a Captive Power Plant of 25 MW capacity at its plant. Parallel to the same, the petitioner also has a HTP power connection with the Respondent Paschim Gujarat Vij Company Limited ("PGVCL"). The contracted demand for the same is 4000 KVA with an agreement to pay fixed contract demand charges of at least 85 % of the same. The plant of the petitioner has been operational for over four decades now and the petitioner has been paying PGVCL and its predecessor authority in terms of the agreement entered into with them from time to time. The petitioner has been paying the aforementioned fixed contract demand charges in terms of the agreement, despite essentially utilizing its Captive Power Plant ("CPP") to meet a majority of its power requirement. On an average, even operating at full capacity, the requirement of the power supply from PGVCL does not exceed 5 - 10% of the total power demand of the petitioner.
6.2 Recently, since around December, 2019, the entire world has been facing a medical pandemic on account of previously unknown novel virus known as Covid-19 virus. The Union of India through the Ministry of Home Affairs, on account of the quickly spreading effect of Page 4 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT the said virus within the territory of India, issued under the National Disaster Management Act, 2005, a Notification dated 24.3.2020 declaring absolute lock-down across the nation. The said lock-down, inter-alia, required absolute closure of public activity and social and economic activities involving large scale gathering. Resultantly, except for minimum onsite staff to keep the factory in operational condition (since in industries requiring continuous operation, absolute shut down would mean substantial cost and time for restarting), the factory of the petitioner was also absolutely shutdown.
6.3 The petitioner submits that consequential to the issuance of the aforementioned Notification by the Ministry of Home Affairs, Union of India, the State Government, vide Notification No.GG/20/2020/V- I/CAV/102020/482, dated 23.03.2020 came out with its own Notification requiring prior permission from the concerned District Collector for continuation of activities. Accordingly the petitioner had applied and received conditional permission on 26.3.2020 only permitting continuation of work with minimum work force. The petitioner was operating with approximately only one third of the workforce as compared to January and February, 2020.
6.4 It is the case of the petitioner that in terms of the permission granted, the amount of personnel which were permitted in the factory of Page 5 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT the petitioner were restricted as follows:
Month Number of Persons January, 2020 1182 February, 2020 1119 March, 2020 1002 April, 2020 402 May, 2020 568
The Company, generally, undergoes a marginal reduction in production capacity, power requirement and staff in the month of March every year on account of holidays sought by staff to travel back to their respective hometown due to Holi. However, the same is generally balanced out by additional production in the month of April.
6.5 Consequent to such action and as per the understanding of the petitioner, to mitigate such hardships, the State issued two circulars dated 27.3.2020 and 30.3.2020. By way of circular dated 27.3.2020, the Respondent decided to, inter-alia, waive off demand / fixed chargs for the month of April, 2020. The same was further reinforced by way of Circular dated 30.3.2020, requiring payment of actual usage charges. 6.6 Since the activities of the petitioner Company was substantially affected on account of the lock-down with the average production being in the rate of 50-60%, the petitioner had preferred representation dated Page 6 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT 11.4.2020, inter-alia, requesting for waiver of fixed demand charges and excess demand penalty charges.
6.7 It is the case of the petitioner that in the meantime, on 21.4.2020, the petitioner was issued bills by Respondent PGVCL, whereby, in terms of the waiver issued by the Government, no charges were raised except charges for actual usage charge under bill dated 21.4.2020. With respect to the same, petitioner submits that in view of the Collectors order dated 26th March, 2020 pursuant to the lock-down to utilize minimum manpower and also in view of the petitioner's concern towards is staff and workers; the company has reduced its manpower to almost one third of the total required, consequential to which the Captive Power Plant of the petitioner was also operating at absolute minimum levels and the required power consumption was substantially drawn from the grid supplied by the PGVCL. Therefore, although the overall consumption and consequentially, the production was in the vicinity of 50-60% (approximately) of the general consumption pattern, a substantial amount of the said consumption / demand has been from the electricity grid of the PGVCL and not fom the CPP of the petitioner. The consumption pattern with respect to the supply from PGVCL is as under:
Months Supply From PGVCL Total Power
Consumption
January 25200 KWH 1,17,51,180 KWH
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February 10800 KWH 1,26,03,340 KWH
March 10800 KWH 75,94,887 KWH
April 3598200 KWH 69,07,300 KWH
May 14400 KWH 89,99,430 KWH
It is clarified that while the supply from PGVCL has substantially increased from the month of April and May on account of partial functioning of CPP, the overall consumption pattern of the petitioner was approximately 60% on an average of the consumption in the month of January and February.
6.8 It is submitted that thereafter the lock-down period was extended beyond the period initially contemplated. The extensions were carried out of such period of lock-down as under:
• Phase 1: 25th March, 2020 - 14th April, 2020 (21 days) • Phase 2: 15th April, 2020 - 3rd May, 2020 (19 days) • Phase 3: 4th May, 2020 - 17th May, 2020 (14 days) • Phase 4 : 18th May, 2020 - 31st May, 2020 (14 days) That, therefore, effectively till 31.05.2020, the economic activities of the petitioner were substantially hampered. Petitioner has continued to operate at approximately 75% power consumption for the month of May, 2020. However, cement production in the month of April and May, Page 8 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT 2020 was less than 50-60% of the average production for January and February, 2020 and sale / dispatch was less than 30% on an average as compared to January and February, 2020 . That, therefore, cement production was substantially lower in April and May, 2020 under the effect of the lock-down.
7. According to the petitioner to give effect to the Resolutions dated 27.3.2020 and 30.3.2020 granting waiver in respect of demand / fixed charges, Energy and Petrochemicals Department wrote to Gujarat Energy Transmission Corporation Limited (for short, 'GETCO') for the purpose of necessary methodology and in turn, GETCO through E-mail sought certain clarifications for the difficulties faced to issue electricity bills to its consumers. On marathon consideration of two earlier Resolutions and the correspondence between the Department and GETCO, the State Government has come out with a Resolution dated 11.5.2020 whereby it restricted the benefit granted vide Resolutions dated 27.3.2020 and 30.3.2020 to only such HT consumers as have consumed less than 50% average electricity demand for the three months of immediately preceding thereto.
8. Mr.R.S.Sanjanwala, Senior Advocate, learned counsel assisted by Mr.Nikunt Raval, learned advocate for the petitioner submitted that the Resolution dated 11.5.2020, more particularly, para -3 thereof so far Page 9 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT as it restricts its benefit to the HT consumers who have consumed electricity in the month of April, 2020 less than 50% of the average energy consumption in preceding 3 months of lock-down i.e. January, February and March, 2020, is bad in law. He has further submitted that over and above the Cement Production Plant, the petitioner is also having Captive Power Plant (for short, 'CPP') which generates electricity. It is further submitted that though the said paragraph of the Resolution refers to the electricity consumption, the source thereof i.e. whether from the grid or from the CPP is not mentioned. Therefore, he has submitted that the methodology, based on which the demand / fixed charges is asked for, is not proper. He has submitted that if the electricity consumption from CPP is considered along with electricity consumed from Respondent No.2 herein, the petitioner will be entitled to have the benefit of the Resolution dated 11.5.2020. According to his submission, it is for that very methodology, in consultation with GETCO, a Resolution dated 11.5.2020 came to be issued.
9. It is further submitted that the benefit under the Resolution granted by State Government is to provide some relief to the trade / commerce / industry, who have been affected because of the lock-down and in view of the fact that even HT consumers whose activities were not totally closed down but affected have been given the benefit on condition being fulfilled therein. Therefore, it is submitted that it is for the Page 10 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT benefit of the affected consumers, who have suffered because of lock- down. As such, to work out average consumption, as mentioned in the impugned Resolution, the energy consumption by the very CPP cannot be ignored with a view to deny him the benefit thereof. The Resolutions dated 27.3.2020, 30.3.2020 and 11.5.2020 are intended to provide relief in the form of demand / fixed charges whose activities have been affected because of the lock-down.
10. It is further submitted that communication dated 8.6.2020 addressed to the petitioner by Distribution Company raising bill towards demand / fixed charges which was assessed in the bill for the month of April, 2020 is silent why that benefit under Resolution dated 11.5.2020 is taken away. It is further submitted that the petitioner is at liberty to utilize the electricity generated by its CPP and it should be considered for determining mode of consumption at the 50% of average consumption of preceding 3 months. Over and above the electricity consumed from the grid, the electricity consumed from the CPP be also considered. As such, the Resolution is beneficial one and it is for the benefit of affected persons of the lock-down, and therefore, it has to be considered liberally.
11. It is further submitted that vide communication dated 18.5.2020, the petitioner has provided to the Distribution Company the figures of Page 11 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT power consumed, may be through grid or CPP, it may also be procured by the Distribution Company from the petitioner as data is already maintained to work out average consumption, as stated in the impugned Resolution dated 11.5.2020. According to the submission of learned counsel for the petitioner to work out the benefit utilization of electric energy self generated or from the Distribution Company is irrelevant. Therefore, it is submitted that consumption from the grid is not the only method to ascertain actual consumption of electricity. Since the impugned Resolution provides benefit to the consumers whose activities are affected then consumption of electricity self generated must also be taken into consideration to work out the benefit. By process of implementation the benefit provided to the petitioner by issuing bill dated 21.4.2020 by Respondent No.2, Distribution Licensee, without charging demand / fixed charges, therefore, by impugned communication dated 8.6.2020, no such benefit granted in respect of demand / fixed charges with electricity duty could be taken away.
12. No other contention is raised by the learned counsel for the petitioner.
13. Mr.Kamal Trivedi, Senior Advocate, learned counsel assisted by Mr.Premal Joshi, learned advocate for the respondent - PGVCL submitted that Government Resolution dated 11.5.2020 is not restricting Page 12 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT the benefit as contended by the learned advocate for the petitioner. As such, it is made less stricter providing benefit to consumers who have not completely shut down the activities pursuant to lock-down. He has further submitted that power generation companies generates the electricity, which is being transmitted to all the Transmission Companies. The Distribution Company like Respondent No.2 distributed the said electricity generated by generation company and transmitted by the transmission Company to the consumers of the Distribution companies which requires huge cost for establishment of distribution network and work force. The Distribution Company has to supply the electricity on demand for which he is to be ready with the supply all time to come irrespective of consumption utilized by it or not. The same Distribution Company has to pay charges to the Generating Company as well as Transmission Company. The demand / fixed charges are worked out considering all the expenditures for the maintenance of distribution network as also work force employed for the same and the cost which is to be paid to generating company and transmission company for supply of assured contract load to the consumers. Drawing attention to para-17 and 18 of the affidavit in-reply, it is submitted that the financial implication on Distribution Licensees towards waiver granted by the State Government is around Rs.400 crores apart from implications towards extension of due date of payment of electricity bills upto 30th May, 2020. It is further submitted that total fixed cost payment Page 13 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT liability of the Distribution Licensees is around Rs.1700 crores per month. The total profit by Respondent-distribution licensees for the financial year 2018-19 is Rs.257/- crores against which waiver distribution licensees have granted towards fixed charges for the month of April, 2020 for an amount of around Rs.400 Crores. Drawing attention of the Court to the impugned Resolution, it is submitted that all these Resolutions speak about waiver of demand / fixed charges in the electricity bills issued by all the Distribution Licensees of the Gujarat State and it never speaks about any electricity consumption by self generating companies. Therefore, petitioner cannot claim that the electricity consumption from its CPP be considered for calculating the benefit of the Resolution. It is further submitted that Resolution for grant of benefit contained therein has to be read as it is. Drawing attention to the Clause-6 of the Resolution dated 11.5.2020, it is submitted that the financial burden of such benefit has to be incurred by the Distribution Licensees. He has further submitted that the benefit under Resolutions dated 27.3.2020 and 30.3.2020 were to be given to the trade / commerce / industry which were shut down because of the lock-down whereas Company of the petitioner has not remained shut for a day, may be it might have worked with less man power. Nonetheless, it remained continued all throughout.
14. He has further submitted that the Resolution dated 11.5.2020 is Page 14 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT neither restricting nor taking away any rights of anyone conferred by earlier Resolutions dated 27.3.2020 and 30.3.2020. On the contrary, by the Resolution dated 11.5.2020, conditions are made less stricter to HT consumer who have consumed less than 50% of average energy consumed by them in preceding 3 months to April, 2020 i.e. January, February and March, 2020. Otherwise, the HT consumers who have not shut down their activities pursuant to lock-down are not entitled for such benefit under any Resolution.
15. Mr.Kamal Trivedi, Senior Advocate, learned counsel for Distribution Company has relied on following decisions.
(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; Page 15 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021
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(D) In the case of Directorate of Film Festivals and
others V/s. Gaurav Ashwin Jain and others reported in (2007) 4 SCC 737;
(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.
16. Ms.Manisha Lavkumar, Government Pleader, learned counsel submitted that as such the petition preferred by the petitioner is not maintainable in view of the fact that it is for the State Government to decide as a policy decision what benefit should be offered to any person or a class of person and with what condition. Unless it is shown that policy decision is arbitrary, the Court, under Article 226 of the Constitution of India, cannot go into the same.
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17. It is further submitted that impugned Resolution dated 27.3.2020 is uniformly applicable to all similarly situated consumers. The Resolution dated 30.3.2020 is a clarificatory Resolution clarifying that all the consumers of the Distribution Licensees whose trade / commerce / industry remained shut because of the lock-down, were to be granted the benefit. It is further submitted that, on the contrary, Resolution dated 11.5.2020 is not restricting or taking away the benefit conferred by earlier Resolution. As such, units / industries which were not shut were not to be granted any waiver. However, Units which fulfills the conditions therein have also been offered the waiver, irrespective of the fact that it remained shut or not.
18. It is further submitted that since the petitioner is an undertaking carrying on continuous process, it had sought for permission from the Collector to continue the manufacturing activities as also to run the CPP. The Collector in turn has also granted the said permission. As such, the petitioner has misled the Distribution Licensees while issuing bill for the month of April, 2020, with communication dated 11.4.2020 stating therein that its power plant is at complete shut down and it is force majure event in view of the pandemic and lock-down. It is further mentioned in the said communication that none of the operational activities are being carried out and there is minimal utilization of electricity within the plant. It is further submitted that in the said Page 17 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT communication, petitioner had pointed out that the Electricity Supply Code, permits exemption of standards of performance during operation of force majeure clause. Thus, while issuing bill, Distribution Licensee for the month of April, 2020 had not charged demand / fixed charges despite the fact that it remained continued in manufacturing activity as also power plant. However, the foot note marked in the said bill that pursuant to the communication dated 11.4.2020 they have sought for guidance from their competent authority / office and its decisions will bind both the consumer as also Distribution Company.
19. It is further submitted that any hardships, as argued by the petitioner, cannot be a ground to challenge the policy decision of the State. There is clear misreading of the Government Resolution granting benefit to the electricity consumers on condition enumerated therein. She relied on the following decisions.
(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;
(B) In the case of Commissioner of Customs (Import), Mumbai V/s. Dilip Kumar and Company and others reported in (2018) 9 SCC 1;
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(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.
20. Relying on the aforesaid decisions, she has submitted that impugned Resolution is a policy decision of the State, may be a one time measure, which is not open to challenge unless it is shown that it is illegal or arbitrary. It is further submitted that it is the relief / concession granted to the trade / commerce / industry on certain conditions. Therefore, it is submitted that judicial review of policy decision though open to the Court unless it is pointed out that it is arbitrary or in breach of any constitutional provision, Court cannot interfere with it.
21. It is further submitted that in the case of policy decision in economic matters, the Courts should be very circumspect in conducting any inquiry or investigation and must be most reluctant to review the judgment of the experts who may have arrived at a conclusion unless Page 19 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT the Court is satisfied that there is illegality in the decision making process itself.
22. It is further submitted that by way of impugned Resolution, the beneficiaries therein have been exempted from their obligation to pay demand / fixed charges for the month of April, 2020. It frees from obligation which the exemptee is otherwise liable to discharge.
23. It is further submitted that concession / benefit granted can also be taken away in exercise of very power under which exemption was granted.
24. At the start of the submission by learned senior counsel, Mr.Sanjanwala with vehemence submitted that the benefit granted is being recalled. According to his submission, demand / fixed charges, which was not levied in the bill dated 21.4.2020 pursuant to impugned Resolution came to be charged vide communication dated 8.6.2020 demanding Rs.90,05,667.25 towards the same. However, realizing that benefit in the form of concession/ rebate/ exemption from any charge can be taken away, he has come out with a submission that by the impugned Resolution dated 11.5.2020, the benefit is restricted to only such HT units as has consumed less than 50% of average electricity consumption for the 3 months immediately preceding to the month of April, 2020. However, the said submission is not correct, in the sense Page 20 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT that initial Resolutions dated 27.3.2020 and 30.3.2020 granting waiver of demand / fixed charges to the trade / commerce / industry which remained shut on account of lock-down. On the contrary, Resolution dated 11.5.2020 extends the benefit to HT consumers who have consumed less than 50% of the average electricity consumption for 3 months prior to April, 2020, therefore, on the contrary, those HT consumers who were not even entitled for any waiver, the said Resolution under its sweep, covered HT consumers whose consumption is within the limit, as mentioned in it.
25. As such, no HT consumers, whose activities not shut down because of lock-down ordered by the Government was never entitled for any waiver pursuant to Resolutions dated 27.3.2020 and 30.2.2020. However, said benefit of waiver is extended and even to HT consumers also by way of Resolution dated 11.5.2020, who have consumed less than 50% of average electricity consumption for the preceding 3 months of April, 2020, and therefore, the contention raised by learned senior counsel for the petitioner that benefit recalled by impugned Resolution dated 11.5.2020 or it is restricted to those of the HT consumers, is fallacious and it is outright rejected.
26. Looking to the Resolution dated 27.3.2020, it is clear that with a view to grant relief to the electricity consumers on account of Page 21 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT unprecedented situation arisen due to COVID-19, State Government has come out with a policy decision to ease payment of electricity bill by differing the due date for payment injuncting the electricity Distribution Licensees from disconnecting or charging for late payment till the date differed by the State. Over and above that, to grant relief to the trade / industry, which remained shut because of the lock-down, State Government directed electricity Distribution Licensees not to levy demand / fixed charges for the month of April, 2020. The said benefit was to be granted by all the Distribution Licensees to the consumers of all the Distribution Licensees in the State. Though, the financial burden, under the said Resolution is directed to be borne by Distribution Licensees, it would be an issue with the Distribution Licensees and the State whether to make good that relief by providing them economic package from the central grant or not. However, the consumers as mentioned therein were to be granted the benefit thereof. The said benefit is in the form of concession / exemption from payment. From the contents of the Resolution, it is clear that the said benefit / concession / waiver is granted to the consumers who have consumed electricity supply from the Distribution Companies (Distribution Licensees). The argument by the petitioner that the said benefit / waiver from the demand / fixed charges is granted upon the electricity consumption without qualifying the source is fallacious in itself. In the impugned Resolution no where it said anything about the self reliant companies Page 22 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT who can generate and utilize their own electricity. The benefit is not to be given to the persons who are capable of generating electricity itself. The benefit under the impugned Resolution was to be provided to the consumers of electricity Distribution Companies who have consumed electricity from them only. Therefore, it is not open for anyone to say that though he is able to generate and utilize electricity and also consumed it from the Distribution Company, for the calculation of benefit as provided in the impugned Resolution, the energy self generated and utilized by him has to be considered. The said argument is also misconceived. When the Government Resolution granting waiver of demand / fixed charges levied by the electricity Distribution Company is very clear, while working out the benefit thereof, no different method or mode of calculation can be offered by anyone, than the one intended in it. The challenge by the petitioner to the impugned Resolutions based on arithmetic calculation, based on consumption of self generated electricity, is de hors the policy decision. While not utilizing electricity from the Distribution Companies using self reliant captive power plant for his manufacturing / commercial activities, the petitioner cannot look for the benefit from Distribution Companies. The High Court, under Article 226 of the Constitution of India, cannot go into any interpretation or mode of calculation for the implementation of any resolution needed either by the beneficiaries of the policy decision or stakeholder. Page 23 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021
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27. The argument advanced by learned advocate for the petitioner that since source of energy drawn for the purpose of benefit is not mentioned in the Resolution itself, the petitioner is entitled to utilize the self generated electricity for the purpose of his manufacturing activity and for calculating benefit under the Resolution, he can rely on the same. The said argument itself is misconceived. As such, under the Resolution, the electricity consumers of Distribution Companies in the State have been granted benefit of waiver / demand / fixed charges. At the same time, Distribution Companies are asked to bear economic burden therefrom. Therefore, the intention of the State is very clear from the Resolution itself. The Distribution Companies cannot be asked to bear the burden of the benefit under a Resolution while calculating it to consider the energy supplied and/or consumed by the beneficiaries other than provided by the Distribution Companies. Therefore, it is very clear that source of energy to be utilized, for the grant of benefit under the Resolution, is the one provided by the Distribution Companies. Therefore, the submission by the petitioner that source of energy to be utilized for claiming the benefit since it is not clarified is irrelevant, cannot be accepted.
28. The petitioner has further contended that the benefit under the Resolution is for the purpose of giving some relief to the affected consumers because of shut down on account of lock-down that means Page 24 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT persons whose activities, may be manufacturing and/or other activities, are affected, they are to be provided with such benefit. It is, therefore, submitted that the manufacturing process of the petitioner is largely affected as it had to work with minimum resources and the work force. Therefore, the petitioner was entitled to the benefit under the Resolution irrespective of source of energy consumed. Even if the purpose under the Resolution is to ease out certain category of person due to lock- down, for entitlement of the same, one must look for the policy decision reduced into writing on the terms mentioned therein for it. According to the submission of learned counsel for the petitioner that while calculating benefit, the generated power has to be considered by the State Government, as such, the said argument cannot be countenanced. Impugned Resolutions are very clear and specific in its letter and intent, when same talks about mode of calculating benefit of waiving demand / fixed charges for the month of April, 2020 and directing Distribution Companies to bear the economic burden, it is clear that the methodology stated therein has to be calculated based on the energy consumed by the consumer supplied by the Distribution Companies and no other mode can be taken into consideration which may be suitable to the petitioner for claiming any benefit. The argument that by earlier Resolutions, the benefit was conferred and by way of Resolution dated 11.5.2020 while process of implementation already availed the benefit is sought to be taken away, the said argument also Page 25 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021 C/SCA/7639/2020 JUDGMENT requires no recognition as benefit was never availed by the petitioner. As such, pursuant to Resolutions dated 27.3.2020 and 30.3.2020, only trade / commerce/ industry remained shut because of lock-down ordered by the Government were to be provided with such benefit whereas activities of the petitioner, which is of a continuous nature, has not remained shut for a day and despite that it has misled Distribution Licensee claiming benefit stating that their unit remained shut and they are entitled for the same. However while not levying demand / fixed charge for the month of April, 2020, pursuant to a request dated 11.4.2020 of the petitioner, a guidance was sought for from the Competent Authority and the bill is subject to the guidance provided by the Competent Authority and binding to both of them, therefore, in no case, it can be said that the availed benefit is now taken away by the Distribution Companies.
29. The present petition is also required to be rejected on the ground that no fundamental or any other legal right of the petitioner is violated so as to interfere with the same in a writ jurisdiction under Article 226 of the Constitution of India. Grant of concession / exemption from payment of demand / fixed charges to the beneficiaries cannot confer on them any legally enforceable right either against the Government or against the Distribution Companies, and therefore, this writ petition is not maintainable at all.
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C/SCA/7639/2020 JUDGMENT 30 As such, learned counsel for the petitioner has not relied on any
precedent in support of his contentions. However, he has sought to carve out an exception from the decisions relied on by the learned Government Pleader as also learned counsel for the Distribution Company. As such, the precedents relied on by the Government Pleader as also learned counsel for the Distribution Company are in respect of powers of the writ Court to interfere with the policy decision of the State, grant of relief / concession / benefit which requires no elaboration as policy decision, which is not shown to be arbitrary can be interfered with by the writ Court. At the same time, any benefit / concession or exemption granted by the State can also be modified, anulled, rescinded withdrawn also. As such, there is no question of either withdrawing the benefit or in any manner affecting the same, and therefore, when benefit granted can also be revoked, the petition filed by the petitioner praying for adopting the mode of calculating the benefit other than the one mentioned in the policy itself cannot be entertained, and therefore, this writ petition is required to be rejected. Hence, this petition is summarily rejected.
(UMESH A. TRIVEDI, J) PATEL ILA KANTIBHAI / Ashish Page 27 of 27 Downloaded on : Mon Feb 22 03:22:49 IST 2021