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2014 DIGILAW 220 (UTT)

HRJ Steels v. State of Uttarakhand

2014-05-16

ALOK SINGH

body2014
Judgment : In all the writ petitions identical questions of fact and law are involved, therefore, with the consent of learned counsel for the parties, all the writ petitions were heard together and are being disposed of by this common judgment at the admission stage. 2. Undisputedly, before creation of State of Uttarakhand and before enactment/ enforcement of the Electricity Reforms Act, 1999, U.P. Electricity Board vide Notifications dated 18.01.1992 and 15.07.1994 granted 33.33% hill development rebate to new industrial units for a period of 5 years from the date of commencement of supply of electricity as per the Industrial Policy of the State of U.P.. The above concession was initially valid till 31.03.1995, however, same was extended thereafter upto 31.03.1997. Thereafter, Electricity Board decided to reduce the hill development rebate from 33.33% to 17% vide order /notification dated 18.06.1998 and 25.01.1999. Feeling aggrieved, writ petition being Civil Misc. Writ Petition No. 15293 of 1999 was preferred before Allahabad High Court. 3. The Division Bench of Allahabad High Court, vide judgment dated 25.05.2000, was pleased to quash the order dated 18.06.1998 and 25.01.1999 reducing the hill development rebate from 33.33% to 17% and was further pleased to hold that industrial units would be entitled to get 33.33% hill development rebate on the total amount of bill upto the period of 5 years from the date of commencement of supply of the electricity to them. 4. Feeling aggrieved, SLP Nos. 10685 – 10686/2000 were preferred by the Electricity Company before Hon’ble Apex Court. Hon’ble Apex Court vide order dated 28.07.2000 was pleased to stay the effect and operation of judgment passed by Allahabad High Court, with further stipulation that industrial units shall continue to deposit the difference between old and new tariff; in case, industrial units succeed, Electricity Company shall be required to refund the said amount within one month of the order. Any deposit / security furnished by the industrial units with the Registrar of the High Court shall continue to be in the custody of the Registrar of the High Court till further orders. 5. On 05.02.2001, Hon’ble Apex Court was pleased to grant leave to Special Appeal to the Uttarakhand Power Corporation, thereupon, SLPs were converted into Civil Appeals No. 1215 – 1216 of 2001. 6. 5. On 05.02.2001, Hon’ble Apex Court was pleased to grant leave to Special Appeal to the Uttarakhand Power Corporation, thereupon, SLPs were converted into Civil Appeals No. 1215 – 1216 of 2001. 6. Civil Appeals No. 1215 – 1216 of 2001 were decided by the Hon’ble Apex Court, vide judgment dated 10.12.2007, directing that industrial units would be entitled to get 33.33% hill development rebate on the total bill from the date of commencement of electricity connection till the date Electricity Reforms Act, 1999 came into force, since, after enforcement of Electricity Reforms Act, 1999, no such concession was granted. 7. Learned counsel for the petitioners contends that although during the pendency of the Civil Appeals before Hon’ble Apex Court, the Electricity Reforms Act, 1999 came to be enacted / enforced with effect from 14.01.2000 and after promulgation of the Electricity Reforms Act, 1999, first tariff was inducted by the Electricity Regulatory Commission with effect from 09.08.2000 and in that tariff, there was no provision for any hill development rebate; However, General Manager of the Uttarakhand Power Corporation, vide order dated 08.05.2001, directed to accept payment from industrial units after deducting 17% hill development rebate; thus, all the petitioners, even after promulgation of the U.P. Electricity Reforms Act, 1999 continued to avail 17% hill development rebate during the pendency of the Civil Appeals before Hon’ble Apex Court placing reliance on the order dated 08.05.2001 issued by the General Manager of the Electricity Company under the bona fide belief; Therefore, Electricity Company is barred by the principle of estoppel in levying and charging late payment surcharge on the amount of hill area rebate, availed by the petitioners even after the promulgation of the Electricity Reforms Act, 1999. 8. As per the Electricity Reforms Act, 1999, tariff could only be fixed by the Electricity Regulatory Commission and Electricity Company had / has no jurisdiction to alter, vary the tariff fixed by the Electricity Regulatory Commission. After the promulgation of Electricity Reforms Act, Electricity Regulatory Commission enforced new tariff w.e.f. 09.08.2000 with no provision of hill development rebate, therefore, General Manager of the Electricity Company had no jurisdiction to issue letter dated 08.05.2001 to avail 17% hill development rebate. Consumer has to pay tariff as per the tariff fixed by Electricity Regulatory Commission. Since order dated 08.05.2001 was without jurisdiction, therefore, there is no question of application of estoppel against the Electricity Company. Consumer has to pay tariff as per the tariff fixed by Electricity Regulatory Commission. Since order dated 08.05.2001 was without jurisdiction, therefore, there is no question of application of estoppel against the Electricity Company. Moreover, in view of the settled position of law, there cannot be any estoppel against the Statute. Otherwise also, it seems that Electricity Company allowed the rebate to the petitioners in the light of the interim order granted by the Court, therefore, there is no question of estoppel against the respondent in recovering the amount of rebate from the petitioners along with late payment charges. 9. This is settled position of law that every interim order passed by the Court stands merged in the final judgment of the Court. As per final judgment of the Hon’ble Apex Court dated 10.12.2007, petitioners were entitled for 33.33% hill development area rebate on the final bill till promulgation of the Electricity Reforms Act, 1999, therefore, petitioners have to pay entire bill of the consumption after 14.01.2000, date of promulgation of Electricity Reforms Act, 1999. Therefore, petitioners are legally bound to refund amount of rebate on the final bill enjoyed by the petitioners after 14.01.2000 date of promulgation of the Electricity Reforms Act, 1999. 10. In view of the above, petitioners have illegally enjoyed the amount of rebate, even after 14.01.2000 date of promulgation of Electricity Reforms Act, 1999, therefore, petitioners must refund the same along with the late payment charges to the Electricity Company. There is another aspect of the matter i.e. Electricity Company was kept deprived from the entire amount of electricity consumption bill, therefore, Electricity Company is entitled for the compensation thereon in the shape of late payment surcharge. 11. Hon’ble Apex Court in the case of Nava Bharat Ferro Alloys Ltd. Vs. Transmission Corporation of Andhra Pradesh Ltd. reported in 2011 (1) SCC 216 in paragraph 38 has held as under: “38. It is manifest from the above that both on the question of restitution of the benefit drawn by a party during legal proceedings that eventually fail as also on the general principle that a party who fails in the main proceedings cannot benefit from the interim order issued during the pendency of such proceedings, this Court found against the consumers and upheld the demand for payment of additional charges recoverable on account of the delay in the payment of the outstanding dues. Far from lending any assistance to the appellant-company the decision squarely goes against it and has been correctly appreciated and applied by the High Court.” 12. In view of dictum of Hon’ble Apex Court in the case Nava Bharat (supra), even if petitioners enjoyed rebate under the interim orders of the court, the fact remains that that rebate was held to be available to the petitioners till enactment / enforcement of the Electricity Reforms Act, 1999, therefore, for every delayed payment, Electricity Company is competent to levy and recover the late payment charges. Consequently, all the petitions fail and are hereby dismissed. In the peculiar facts and circumstances of the case, no cost. 13. All the applications also stand disposed of. 14. Let copy of this judgment be placed in the all the connected petitions.