Himachal Pradesh High Court
Nhpc Ltd And Another vs State Of H.P. And Others on 6 August, 2021
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 1282 of 2010 Reserved on : 3.8.2021 .
Decided on 6.8.2021 NHPC Ltd and another ...Petitioners Versus State of H.P. and others ...Respondents ___________________________________________ Coram Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? Yes ________________________________________________ For the petitioner : Mr. K.D.Shreedhar, Senior Advocate with Ms. Shreya Chauhan, Advocate.
For the respondents : Mr. Hemant Vaid, Addl. A.G. with Mr. Ashwani Sharma, Addl. AGs with Mr. Vikrant Chandel and Mr. Gaurav Sharma, Dy. AGs, for the respondents No. 1, 2 and 4 to 6.
Mr. Sushant Vir Singh Thakur, Advocate vice Mr. Vikrant Thakur, Advocate, for respondent No. 3.
Sureshwar Thakur, Judge Through Annexure P-37,the respondent concerned, made a communication to the Land Acquisition Collector, Chamba, District Chamba, H.P., to ensure the recovery of a sum of Rs. 64,11, 402/- from the writ petitioner, given theirs' comprising levies, towards electricity consumed by the writ petitioner, during the phase of its setting up a Hydro project, within District Chamba. Consequently, through the instant petition, the ::: Downloaded on - 31/01/2022 22:50:16 :::CIS 2 writ petitioner seeks the quashing of Annexure P-37.
Moreover, the writ petitioner also seeks the quashing of Annexures P-15, P-16, P-18,P-20,P-22, P-26, P-28, P-30 .
and P-32, wherein demands are raised by the respondent concerned, upon, the writ petitioner, for liquidating on the afore score, the afore sum(s), to the Himachal Pradesh State Electricity Board.
2. The learned counsel appearing for the writ petitioner, has contended with much vigor, before this Court, that Annexures (supra) are legally flawed, as, they breach the mandate, made by this Court, on 5.10.1995, upon CWP No. 562 of 1989. He further submits that since the afore made verdict acquires conclusive and binding effect. Therefore, the respondent concerned was bound to revere it, rather than making demands, upon the writ petitioner, for liquidation of electricity tariff, demands whereof appertain to the phase of its undertaking the construction of a Hydro project, in district Chamba.
However, his afore made submission would carry weight, only upon the afore order, being completely in tandem with the statutory provisions, as become carried in the Himachal Pradesh Electricity (Duty) Act, 1975, (hereinafter referred to as, "the Act"), statutory provisions whereof are 2 ::: Downloaded on - 31/01/2022 22:50:16 :::CIS 3 alluded in the order (supra), made by this Court, on 5.10.1994. The order, of, 5.10.1994, made upon CWP No. 562 of 1989, is extracted hereinafter:
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"After hearing arguments of the learned counsel for the parties for some time, it was stated before us by Mr. Shiv Pujan Singh, learned counsel for respondent No. 1 and 2, on instructions from Chief Electrical Inspector, respondent No. 2, that the petitioners will not be charged electricity duty on electricity consumed by them for generating stations, sub-stations and works directly connected with the generation, transmission and distribution of energy, under the Himachal Pradesh Electricity (Duty) Act, 1975, as amended upto-date. The learned counsel submits that this concession will not cover electricity consumption by the petitioners in their offices, colonies and other works, not directly connected with generation, transmission or distribution of electricity.
The aforesaid statement fully satisfies the petitioners. It is, however, submitted that this may be made a rule of this Court. There is no reason why the statement, as aforesaid, should not be accepted as authentic and made a rule of this court. Under the circumstances, accepting the aforesaid statement, it is directed that the petitioners will not be charged electricity duty on the energy consumed by them for generating stations, sub-stations and works directly connected with the generation, transmission and distribution of energy. The demands issued against the petitioners will accordingly be corrected."
Though the order (supra) does, as aforestated, make a reference therein to the Himachal Pradesh Electricity (Duty) Act, 1975, and, also restrains the respondent 3 ::: Downloaded on - 31/01/2022 22:50:16 :::CIS 4 concerned to charge electricity (duty) on electricity consumed by the petitioner, for generating stations, sub-
stations, and works directly connected with the .
generations, transmission and distribution of energy.
Furthermore, obviously, through the afore order is conclusive and binding, and, is also within the ambit of sub-section 2 (iv) of Section 3 the Act, and, does hence enjoin the meteings of completest deference thereto.
However, the occurrences therein, and, as appertaining to non-levy of electricity tariff, upon the petitioner, upon consumption of electricity by it, for generating stations, substations and works directly connected with the generations, transmissions and distribution of energy, does not, take within its ambit, the factum of consumption of electricity by the writ petitioner-Unit, during the stages or phases, of, construction by it, of the Hydro project. Significantly since the mandate of clause
(iii) of sub-Section (2) of Section 3 of the Act, remains un- interpreted, in verdict (supra) in a manner rather supportive of the petitioner's stance.
3. The reasons for making the above conclusion, becomes derived from the definition of Consumer, as becomes encapsulated in sub- Section-2 of Section 3 of 4 ::: Downloaded on - 31/01/2022 22:50:16 :::CIS 5 the Act, provisions whereof stand extracted hereinafter:
"3.(I) There shall be levied and paid to the State Government on the energy consumed a duty, to be called the "Electricity Duty" in the prescribed manner and .
computed at the following rates:
(i) In case of domestic consumers at the rate of 5 paise per unit; and
(j) In case of other category of consumers at the rate of 10 paise per unit;
Provided that if the energy is partly used for category
(i) and partly for category (ii), above, the highest rate of duty applicable will be levied."
(2) Nothing in sub-section (I) shall apply to the concumption or sale of energy which is,
(i) consumed by the State Government; or
(ii) consumed by or sold to the Government of India for consumption by that Government; or
(iii) consumed or sold for the construction, maintenance or operation of any railway by the Government of India or a railway company operatating that railway; or
(iv) consumed by the Board for generating stations, sub-stations, works directly connected with the generation, transmission and distribution of energy. (3) For the purpose of computing the electricity duty under this section, the consumption shown by the meters starting after the first meter reading date after the commencement of this Act shall be taking into account."
A deep and incisive reading of provisions (supra) of the Act, does, (i) unfold that the respondent concerned is under a statutory duty to levy tariff, for consumption of energy, from the consumer(s) concerned. Even all sub-
5 ::: Downloaded on - 31/01/2022 22:50:16 :::CIS 6clause(s) of sub-Section (2) of Section 3 of the Act, do, unfold, that the respondent concerned, is under a statutory duty, to levy tariff for consumption of energy, .
from the consumer concerned. However, in all sub-
clause(s) of sub-Section (2) of Section 3 of the Act, there is repeated occurrence of consumption of Electricity, and, also the word "consumes" occurs repeatedly. However, this Court is to gauge whether yet the consumption of electricity rather by the service provider, during the stage of its making construction of the apposite Hydro project, is, or is not covered within the realm of the statutory provisions (supra). Since Sub-Section (2) of Section 3 of the Act, works as an exception, or as a proviso to sub-
section (i) of Section 3 of the Act, and, sub-clause (iii) thereof obviously, casts a statutory restraint against the respondent concerned, to, upon the Department of Railways of the Government of India, or the apposite Railway Company, consuming electricity, during the phase of their raising or setting up railways, hence raise any electricity tariff towards consumption of electricity, during the apposite construction(s) of the Railways project concerned. It also obviously casts a facility, vis-à-vis, only the entities, mentioned in the relevant subclause (iii), cast 6 ::: Downloaded on - 31/01/2022 22:50:16 :::CIS 7 in sub-section (2) of Section 3 of the Act, to not, even upon any demand for electricity tariff, being raised, qua them, and appertaining to the phase of their raising .
construction of the project concerned, hence proceed to liquidate the apposite demand, to the respondent concerned. Since, only construction activities, rather undertaken, by the department of Railways, Government of India, or by a Railway company, operating the railway concerned, became statutorily protected, against demands, for electricity tariff, being qua therewith becoming raised by the Electricity Board. Therefore, since, the statute is specific and explicit, only with respect to non-levying of electricity tariff, towards consumption of electricity, for the construction, maintenance and operation of any railway, either by the department of Railways, Government of India, or by the Railway company concerned, and, when there is hence a specific exclusion of any other entity, than the ones statutorily recited therein. Consequently, the specific exclusions therein, of any entity, than the afore rather explicitly included in the apposite statutory provision(s), thereupon purveying vis-à-vis, the petitioner unit, though not included therein, hence, the benefit of clause (iv) of sub-
7 ::: Downloaded on - 31/01/2022 22:50:16 :::CIS 8Section (2) of Section 3 of the Act, would cause an impermissible inclusion(s) thereof rather therein(s), hence through a verdict of the Court, and, would also .
tantamount to this Court, rather forbiddingly making or re-enacting provision (supra), cast in clause (iii) of sub-
Section (2) of Section 3 of the Act.
4. Be that as it may, since the verdict (supra) is within the ambit of clause (iv) of sub Section (2) of Section 3 of the Act, and, with the petitioner-Unit being covered only within the sphere of clause (iv) of Section 3 of the Act, and, is outside the domain of clause (iii) thereof, and, hence dehors the verdict (supra), it becomes un-amenable to draw any support from clause (iii) of sub-section (2) of Section 3 of the Act,. Therefore, this Court concludes that the consumption of electricity, by the petitioner-Unit, during the phase of its constructing the project, is amenable for levying thereon(s) of hence electricity tariff, by the respondent-Board. Consequently, the demand of electricity tariff, as raised, and as appertains to the afore phase, hence by the respondent concerned, cannot be invalidated.
5. Consequently, there is no merit in the petition, and, the same is dismissed. The impugned Annexures i.e 8 ::: Downloaded on - 31/01/2022 22:50:16 :::CIS 9 Annexure P-15, P-16, P-18,P-20, P-22,P-26, P-28, P-30, P-
32 and P-37 are affirmed and maintained. Also, the pending application(s), if any, are disposed of. No costs.
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(Sureshwar Thakur) Judge 6.8.2021 Kalpana 9 ::: Downloaded on - 31/01/2022 22:50:16 :::CIS