Judgment :- K.S. Radhakrishnan, J. Petitioner in O.P.No.2948/96 has approached this Court seeking a direction to the Kerala State Electricity Board to grant exemption to the petitioners from power cut imposed vide Government Order G.O. (Rt.).No.17/96/PD dated 2.2.1996 and also for a declaration that petitioner's industrial unit is entitled to contract demand of electricity 1600 KVA per month as agreed to be supplied by the Board. Petitioner is also challenging Ext.P6 communication from the Special Officer (Revenue) directing the petitioner to pay an amount of Rs.51,58,948/- towards short assessment of demand charges and energy charges for the period from December 1996 December 1997 and Ext.P7 bill claiming the said amount. Common questions arise for consideration in other cases also and hence we are disposing of all these cases by a common judgment. 2. Petitioner in O.P.No.2948/96 is a public limited company engaged in the manufacture and sale of cement. Company has established a cement-manufacturing unit at Vellore, Kerala. Petitioner submits that the Government had as part of its industrial policy announced incentives in the matter of power connection under G.O. dated 21.5.1990. It was announced that power connection would be given on completion of any project irrespective of whether a general power cut was in force or not. Further it was also announced that new units commencing industrial production would, be exempted from power cut for a period of five years from the date of commercial production. Petitioner had set up the industry based on the incentive announced by the Government, but due to delay in granting power connection petitioner could start the industry only in October 1995. The Board had allotted 1600 KVA of power to the petitioner vide letter dated 26.4.1994. Petitioner stated that though he had executed agreement and also made deposit Board could not supply the stipulated quantity of 1600 KVA power, but only far less, that is, 1000 KVA of power subject to a cut of 37.5% on the maximum demand and a further restriction from drawing power between 6 p.m. to 10 p.m. every day. Due to inordinate delay in the supply of electricity petitioner could start commercial production only in October 1995. 3. Government of Kerala had issued order dated 6.1.1996 under S.22B of the Indian Electricity Act imposing power cut on all industries having connected load of 10KW and above. Later the Government in super cession of order dt. Due to inordinate delay in the supply of electricity petitioner could start commercial production only in October 1995. 3. Government of Kerala had issued order dated 6.1.1996 under S.22B of the Indian Electricity Act imposing power cut on all industries having connected load of 10KW and above. Later the Government in super cession of order dt. 6.9.1996 issued an order dated 2.2.1996 regulating the supply, distribution and consumption of electrical energy. The Government had ordered that no power supply shall be made available for illumination and display lighting and ordered to impose load shedding. Further it was also ordered that 35% power cut be made applicable to all consumers having connected load of 10 KW and above except domestic and agricultural purposes. The Government also authorized to issue regulatory orders for implementation of power cut, fixation of monthly quota, price of energy to be realized for excess consumption. Certain categories of consumers were also ordered to be exempted. Following the directions of the Government and due to the imposition of power cut the Board issued order dated 5.2.1996 working its modalities. The monthly quota of new industries which started commercial production between 1.1.1995 and 31.12.1995 was also fixed. 4. Petitioners have challenged the above-mentioned orders on various grounds. Petitioners have stated that the industry was started on the promise made by the State and the Board. The orders dated 6.1.1995 and 5.2.1996 are discriminatory and violative of Art.14 of the Constitution of India. Petitioners also challenged the various exemptions granted to Malabar Cements, Industries in Cochin Export Processing Zone and certain other industries. Petitioners are also aggrieved by Exts.P6 and P7 bills issued demanding huge amount by way of electricity charges. 5. Electricity Board had filed a counter affidavit on 18.5.1996 through the then Standing Counsel Board has highlighted the reasons for the delay in completing line extension work in the premises of the petitioner’s company. Objections of property owners through whose properties lines were drawn, had to be settled. Board had made temporary arrangements to provide electric connection to the petitioner’s unit to the extent of 1000 KVA, which was the maximum possible. Further, petitioner had also failed to produce the required approval and energisation certificate from the authorities to the Government for availing of the required load of 1600 KVA. Petitioner’s company was also not equipped themselves to avail of the applied load of 1600 KVA. Further, petitioner had also failed to produce the required approval and energisation certificate from the authorities to the Government for availing of the required load of 1600 KVA. Petitioner’s company was also not equipped themselves to avail of the applied load of 1600 KVA. Therefore the stand that the Board had failed to supply electricity was denied. Further, it is also pointed out that the Board could not guarantee any time schedule for works like 11 KV line construction works extending to about 15 Kms. to be drawn over properties of several persons nor can foresee hurdles arising out of disputes of private property owners. Further it is also stated that Government had later imposed restriction in supply of electrical energy in order to maintain equitable distribution of energy in the State. The said restriction was imposed by the Government in exercise of the powers under S.22B of Indian Electricity Act. Respondent Board is statutorily bound to follow the directions given by the Government under S.22B. Later on the basis of the Government Order G.O.(Rt.).23/96/PD dated 12.2.1996, Board had revised the monthly quota of the petitioner's company and fixed as 62779 units, about which a communication was given to the petitioner. Petitioner had however exceeded this quota by more than twice the quantity and was enjoying the benefit of uninterrupted supply on the basis of the stay granted by this Court. 6. Board has also stated in the counter affidavit that Government had issued orders in respect of Malabar Cements for the continuous and uninterrupted supply of cement for developmental works being carried out by Government Departments and other agencies entrusted with works for and on behalf of Government. Those works were time bound and the satisfactory execution of the same depended on the steady supply of cement. Cochin Export Processing Zone it was stated is founded and financed by Government of India and the units under this Zone are cent percent export oriented bringing in, valuable foreign exchange to the country. Special treatment was meted out to those establishments in public interest. 7. Detailed counter affidavit was filed by the State Government on 7.1.1997. Reason for imposing power cut has been highlighted. Special treatment was meted out to those establishments in public interest. 7. Detailed counter affidavit was filed by the State Government on 7.1.1997. Reason for imposing power cut has been highlighted. Due to poor inflows into the hydel reservoirs, deteriorated storage position in the hydel reservoirs and insufficient quantity of central share of power to the State, Government vide its order dated 6.1.1996 had to impose 35% power cut to industrial consumers using 10 KW of power and above, three hours load shedding during day time and 30 minutes cyclic load shedding during the peak hours in the State with effect from 7.1.1996. Later the Government had issued an order dated 12.2.1996 after examining the grievance raised by various industries stating that no industries having a load of 10 KW and above would be exempted from power cut. On the basis of the order the monthly quota of the petitioner company was revised and fixed as 62779 units. Government in the counter affidavit has stated that they are empowered to make such an order under S.22B of the Indian Electricity Act. Board then filed an additional counter affidavit on 13.10.1997 producing Ext.R1(b) order dated 12.2.1996 and took the view that Government is legally entitled to issue those orders. Board has filed another additional affidavit on 4.3.2004 producing Board Order dated 31.10.1996. 8. Counsel appearing for the petitioners Sri. Path rose Mathai contended that Ext.Pl Government Order has got its statutory backing of S.78A of the Electricity Supply Act, 1948. Counsel submitted statutory notifications stated that there would not be any power cut to new units commencing industrial production between 1.1.95 to 31.12.95 for a period of five years. Counsel submitted Government is not justified in going back from the said promise since petitioners had already set up their industries in the State of Kerala and altered their position to their detriment. Counsel placed reliance on the decision of the Apex Court in State of Punjab v. Nestle India Ltd., (2004) 136 STC 35. Counsel also submitted Government is not justified in making further classification of new industries vide Ext.P2 and mini classifications of units is illegal and violative of Art.14 of the Constitution of India. Counsel submitted Board is not justified in exempting Malabar Cements and various other industries which is discriminatory and illegal and that petitioner company also ought to have been treated alike. Counsel submitted Board is not justified in exempting Malabar Cements and various other industries which is discriminatory and illegal and that petitioner company also ought to have been treated alike. Counsel also laid stress on Cl.(v) of Ext.P2 notification dated 2.2.1996 and stated that as per the said clause there shall be no power cut in maximum demand and cut shall be only on the energy consumed. Counsel referred to the definition of maximum demand under S.2(8) of the Electricity Supply Act, 1948. Counsel submitted that the Board is not justified in claiming for the alleged excess of maximum demand during the period of power cut when there was absolutely no cut on maximum demand. Action of the Board according to the Counsel, is violation of Cl.(v) of Ext.P2 order: 9. Counsel appearing for the Board Sri. P. Santhalingam submitted that Board is bound by various directives issued by the State Government in exercise of the powers conferred under S.78A of the Electricity (Supply) Act and also on the basis of S.22B of the Indian Electricity Act. Reason for imposing power cut has been highlighted by the learned counsel. Counsel submitted Board could do it to maintain the supply and to ensure equitable distribution of energy/to various consumers in the State. Reason for meeting out separate treatment to Malabar Cements Ltd., and other industries has been narrated by the counsel. Counsel submitted those industries form a class by themselves and they were exempted in public interest. 10. The power cut was imposed in the State by the State Government vide order dt. 2.2.1996 in exercise of the powers conferred under sub-s.(1) of S.22B of the Indian Electricity Act, 1910. Counsel submitted those industries form a class by themselves and they were exempted in public interest. 10. The power cut was imposed in the State by the State Government vide order dt. 2.2.1996 in exercise of the powers conferred under sub-s.(1) of S.22B of the Indian Electricity Act, 1910. The reason for imposing power cut has been stated in the notification as follows: “The Government of Kerala are of the opinion that for maintaining the supply and securing equitable distribution of electrical energy on the basis of the riyer inflows, the storage position in the reservoirs and also for the availability of Kerala’s share from Central Power Projects, it is expedient further to regulate the supply; distribution and consumption of electrical energy in the State.” In the counter affidavit filed by the Under Secretary to Government, Power Department, Government Secretariat, it has been pointed out that power cut had to be imposed in the context of poor inflows into the hydel reservoirs, deteriorated storage position in the hydel reservoirs and insufficient quantity of central share to the State Government. Power cut order has been issued under sub-s.(1) of S.22B of the Indian Electricity Act, 1910 which reads as follows: “S.22-B. Power to control the distribution and consumption of energy .-- (1) If the State Government is of opinion that it is necessary or expedient so to do, for maintaining the supply and securing the equitable distribution of energy, it may by order provide for regulating the supply, distribution, consumption or use thereof.” S.22B is intended to safeguard against acute conditions due to power shortage. The provision is meant for securing equitable distribution of energy. The section also enables the State Government to regulate, supply, distribution and consumption or use thereof. The scope of S.22B came up for consideration in several decisions of the Apex Court. Reference may be made to the decision in Adonli Cotton Mill v. A.P. State Electricity Board, (1976) 4 SCC 68, State of U.P. v. Hindustan Aluminium. (1979) 3 SCC 229, New Central Jute Mills v. UP. State Electricity Board, (1986) Supp. SCC 581 and Jiyajeerao Cotton Mills Ltd. v. M.P. Electricity Board. AIR 1989 SC 788. S.22B empowers the Government to issue appropriate orders for regulating the supply, distribution and consumption of electricity. (1979) 3 SCC 229, New Central Jute Mills v. UP. State Electricity Board, (1986) Supp. SCC 581 and Jiyajeerao Cotton Mills Ltd. v. M.P. Electricity Board. AIR 1989 SC 788. S.22B empowers the Government to issue appropriate orders for regulating the supply, distribution and consumption of electricity. The order issued in pursuance of S.22B is binding upon the Electricity Board as well as the consumers and supersedes and overrides the agreements that may have been entered into between the Board and the consumers. For exercising the said power state Government have to form an opinion that it is necessary or expedient to regulate supply, distribution, consumption or use of electricity and that the Court cannot substitute its own opinion to that of the State Government. Court cannot enquire into the grounds on which Government formed its opinion. Court cannot go into the question as to how far it is necessary to pass such an order for maintaining supply or for securing equitable distribution of energy. Petitioner has 110 case that there exists no reasons to impose power cut or that the Government had acted malafide or with an oblique motive to impose power cut. Reasons, which led to the imposition of power cut were not questioned. Fact would evidently show that power cut had to be imposed due to poor inflows in the hydel reservoirs, determinate storage position in the hydel reservoirs, insufficient quantity of central share etc. were contributed in the State Government exercising power under S.22B. We have therefore no hesitation to hold that the Government Order dated 2.2.1996 imposing power cut in State of Kerala which was imposed in public interest and in accordance with S.22B of the Indian Electricity Act. 11. Petitioner also tried to contend that imposition of power cut as well as various orders issued restricting power supply is illegal and goes against Ext.P1 Government Order which says that there will not be any power cut for a period of 5 years for new industries which has been set up in the State of Kerala for the relevant period. Counsel submitted that the State and the Board are bound by the said promise and can demand only pre 1992 tariff and have to compensate them for the period they were subjected to power cut. Counsel submitted that the State and the Board are bound by the said promise and can demand only pre 1992 tariff and have to compensate them for the period they were subjected to power cut. Further counsel also contended that industries which has subjected to less than 50% power cut should also be given benefit of pre 1992 tariff. We are of the view petitioner could have got benefit of pre 1992 tariff only if there was no power cut. State Government had established overriding public interest which would make it inequitable to enforce the estoppel against the State Government. Apex Court in State of Punjab v. Nestle India Ltd., (supra) has highlighted the limitations of the principle of promissory estoppel and enumerated the limitations as follows: “(1) Since the doctrine of promissory estoppel is an equitable doctrine it must yield when equity so requires. But it is only if the Court is satisfied, on proper and adequate materials placed by the Government, that overriding public interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the Court would refuse to enforce the promise against the Government. (2) No representation can be enforced which is prohibited by law in the sense that the person or authority making the representation or promise must have the power to carry out the promise. If the power is there, then subject to the preconditions and limitations, it must be exercised. If the statute does not contain a provision enabling the Government to grant exemption, it would not be possible to enforce the represent at on against the Government, because the Government cannot be compelled to act contrary to statute. But if the statute confers power on the Government to grant the exemption, the Government can legitimately be held bound by the promise to exempt the promise from payment of sales tax.” The said position has been reiterated by a three Judges Bench of the Supreme Court in Sharma Transport v. Government of A.P., (2002) 2 SCC 188. The Bench has elaborately considered the principle of promissory estoppel and held as follows: “In Shrijee Sales Corpn. v. Union of India it was observed that where there was supervening public interest, the Government is free to change its stand and withdraw the exemption already granted. The Bench has elaborately considered the principle of promissory estoppel and held as follows: “In Shrijee Sales Corpn. v. Union of India it was observed that where there was supervening public interest, the Government is free to change its stand and withdraw the exemption already granted. One such reason for changing its policy decision can be resource crunch and the loss of public revenue. There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel, clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The principle of promissory estoppel is that where one party has by his word or conduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have taken place between the parties. The doctrine of promissory estoppel is now well established one in the field of administrative law.” The Apex Court also applied the doctrine of promissory estoppel in Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 and held that since the doctrine of promissory estoppel is an equitable doctrine, it must yield where the equity so requires. The Court further held that where the Government is required to carry out the promise the Court would have to balance the public interest in the Government's carrying out the promise made to the citizens, which helps citizens to act upon and alter their position and the public interest likely to suffer if the promises were required to be carried out by the Government and determine which way the equity lies. The petitioner has also not demonstrated with reliable materials that due to power cut in what manner and to what extent they have suffered. Petitioners have failed to make a firm foundation on facts and loss it had sustained due to power cut. We therefore reject the contention of the petitioners that Government order imposing power cut is hit by principle of promissory estoppel. 12. We are also not impressed on the argument of the counsel that exemption granted to certain categories of industries is discriminatory and violative of Art.14 of the Constitution of India. Non imposition of power cut to a class of industries, in our view, is justifiable. Malabar Cements is a State Government undertaking. Several projects of the State Government would have come to a standstill if power cut was imposed on Malabar Cements. Government had to complete various projects in time bound and satisfactory execution of those projects depended upon the steady supply of cement from Malabar Cements. It was with the motto of keeping the tempo of public works for which large quantities of cement was required that Malabar Cements was exempted. In our view Government may do so in exercise of the power conferred under S.22B of the Indian Electricity Act. Cochin Export Processing Zone is funded and financed by Government of India and the units under this Zone are cent per cent export oriented, bringing in valuable foreign exchange to toe country. So also Techno Parks are research oriented where sophisticated electronic equipments are used. Data worth crores of rupees are stored in these equipments and power interruption even for a short period would result in loss of those data. We are of the view Government have got justifiable reasons to exempt those units from power cut. Under such circumstance we are not inclined to accept the contention of the writ petitioner that petitioners were discriminated and that the exemption granted to certain industries was discriminatory. 13. Counsel also tried to make out a case based on C1.(v) of the Government Order dated 2.2.1996. Counsel submitted C1.(v) of Ext.P2 order has declared that there shall be no power cut in maximum demand and cut shall be only on the energy consumed. 13. Counsel also tried to make out a case based on C1.(v) of the Government Order dated 2.2.1996. Counsel submitted C1.(v) of Ext.P2 order has declared that there shall be no power cut in maximum demand and cut shall be only on the energy consumed. Counsel submitted this is illegal and without authority of law for the Board to charge the petitioner for alleged excess of maximum demand during the period of power cut when there was absolutely no cut on maximum demand. Board has filed additional counter affidavit explaining the circumstances under which bill has been issued, which is self explanatory and a complete answer to the contention raised in Ground (c). Petitioner, in our view, is not entitled to exemption from power cut imposed by Ext.P2 order and that petitioner should have co-operated with the State Government and the Board to tide over the difficulties faced by the State and should have co-operated to make equitable distribution of supply in the State of Kerala. For the reasons stated above we find no illegality in Ext.P7. Writ Petitions lack merits and they are accordingly dismissed.