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That even though the High Court rightly held that the Board was bound by principle of promissory estoppel in the light of the diverse notifications issued by it from time to time granting incentive development rebate to the new industries covered by these notifications and consequently the impugned notification was hit by the principle of promissory estoppel, High Court erred on Issue No. 2 when it took the view that the appellants could not derive any benefit from the decision on Issue No. 1 on the ground of promissory estoppel as by the contractual obligations flowing from the agreements entered into by them with the Board while getting electric supply for their industries, their challenge to the impugned notification got barred. They also contended that the High Court had also erred in taking the view that the impugned notification was only prospective in nature and was not trying to withdraw the development rebate in a retrospective manner, Shri Dave, learned senior counsel appearing for the Board on the other hand tried to support the final decision rendered by the High Court dismissing the writ petitions, on the additional ground that the High Court had erred in deciding Issue No. 1 against the Board. It was contended by Shri Dave that there was no promise held out by the Board to any of the new industrialists by issuing earlier notification under Section 49 of the Act. That the Board had exercised its statutory and quasi-legislative powers and there could not be any promissory estoppel against such an exercise of power and consequently nothing further survived in these proceedings. It was alternatively contended by Shri Dave that in any case the High Court was right when it took the view that the impugned notification could not be challenged by the appellants as they were bound by the contractual obligations flowing from the agreements entered into by them with the Board while taking electric supply for their industries and consequently these appeals were liable to be dismissed also on that score. He further submitted that whatever benefits might have accrued to the appellants prior to 1st August 1986, those benefits were prospectively withdrawn by the Board by issuing the impugned notification and to that extent decision of the High Court on Issued No. 3 could not be faulted. Shri Dave also submitted that so far as the question of surcharge on late payment of impugned development rebate is concerned it is not germane to the present controversy as the demand for late payment was raised by the Board after the decision of the High Court and, therefore, strictly speaking the said question would not arise from the judgment of the High Court and, therefore, if the appellants have no case on merits regarding development rebate, the question regarding payment of surcharge may be kept open. Alternatively he contended that on the principle of restitution once the appellants fail on merits, if his contentions on behalf of the Board on the issue of promissory estoppel and contractual obligations of the appellants are accepted, then the demand for surcharge should be permitted to be effectuated with appropriate rate of interest as the Board could not recover the same pending these appeals because of the interim relief granted by this Court. His argument on this aspect also covered the question of restitution regarding payment of development rebate the recovery of which had remained stayed in some of these appeals by an interim order of this Court.

Shri Dave, learned senior counsel for the Board in this connection submitted that whatever might have been alleged by the writ petitioners in their writ petitions before the High Court their clear case at the stage of arguments before the High Court was confined to the ground of promissory estoppel only against the Board and not against the State Government and that too based on the recitals in the three notifications mentioned earlier and not dehors them. Therefore it is too late for the appellants to contend as aforesaid before us in these appeals and they cannot be permitted to make out such a new case which would require fresh investigation of facts especially when the State is not a party to these proceedings in large number of appeals. Prima facie we find some force in the aforesaid objection put forward by Shri Dave, learned senior counsel for the Board. However on a closer scrutiny this objection falls through. It is of course true that whatever might have been the wide canvass tried to be spread by the appellants before the High Court in their pleadings at the stage of arguments as noted by the High Court in the impugned judgment they confined their challenge to the impugned notification only on the solitary ground that the Board had held out promise by way of representation to the new industrialists on the basis of the clear recitals in the three notifications of 29th October 1982, 13th July 1984 and 28th January 1986. They did not think it fit to support their cases of promissory estoppel against the Board on any other material. However it cannot be forgotten that the Board is a supplier of electricity to consumers on charging appropriate sale price. It is thus a commercial entity. It is not concerned with development of industries in the State. That task is entrusted to the State concerned. If the latter with a view to giving a fillip to new industries puts forward a scheme of incentives to new industries, as a part of this package it can issue appropriate directions to the Board, its limb, under Section 78A of the Act to make this incentive available to new industries to be established in the region covered by Board's supply network of electric power. It is precisely what is done by the Board at the behest of State Government. No estoppel is required to be pleaded against the State as the latter has not issued any notification holding out such a promise. Nor has the State gone back upon it. We must, therefore, examine the challenge of the appellants on the question of promissory estoppel against the Board only from this aspect. We will now, therefore, address ourselves to this moot question.

In the present case even leaving aside the promissory estoppel against the State of U.P. it can clearly be visualised that by the mere wordings of the aforesaid three notifications the Board acting as a limb of the State of U.P. had offered these concessions by way of rebate in electricity duty to the new industries so as to attract them to the State to enable the Board to take them in its fold as prospective consumers of electricity to be sold by it to them.

It the case of Amrit Banaspati Co. Ltd. and Another v. State of Punjab and Another, [1992] 2 SCC 411 another Bench of this Court consisting of two learned Judges speaking through R.M. Sahai, J., considered the ques-tion whether any promissory estoppel was available against the State of Punjab when it promised new industries refund of sales tax collected by it earlier from its consumers.

"It is not necessary for us to go into a historical analysis of the case- law relating to promissory estoppel against the Government. Suffice it to say that the principle of promissory estoppel is applicable against the Government but in case there is a supervening public equity, the Government would be allowed to change its stand; it would then be able to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. However, the Court must satisfy itself that such a public interest exists. The law on this aspect has been emphatically laid down in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., [1979] 2 SCC 409. The portion relevant for our purpose is extracted below :