IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17..08..2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.20615 of 2000 Sree Aravindh Steel Limited, Plot No.D-38, Industrial Estate, Thuvakudi, Trichy 620 015, Rep. by its Managing Director, Mr.Arun Shankar. ...Petitioner -Versus- 1.The Chairman, Tamil Nadu Electricity Board, No.800, Anna Salai, Chennai 600 002. 2.The Chief Engineer, Distributions Office, Tamil Nadu Electricity Board, Tirchy Region, Thennur, Tiruchirapalli-17. 3.The Superintending Engineer, Trichy Electricity Distribution Circle/Metro, Trichy 620 020. ... Respondents Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the entire records pertaining to the impugned order of the 3rd respondent dated 21.03.2000 made in Lr.No.SE/TEDC/M/ Ty/DFC/HT/ A4/ F.HT.Sc.No.152 (New No.81)/D.401/99 and the order of the 2nd respondent in letter No.024489/1515/Accts/A1/2000, dated 11.05.2000 and that of the letter No.2993/2111/Accts/A1/F.HT.SC.No.81/2000 dated 21.11.2000 and quash the same. For petitioner : Mr.K.Viswanath for Mr.S.L.Sudarsanam For respondent (s): Mr.P.S.Raman, Advocate General Assisted by Mr.P.Srinivasan for RR1 to 3 https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner is a Public Limited Company. It is engaged in the manufacture of steel ingots. The petitioner industry was established in Plot No.D-38, Industrial Estate, Thuvakudi in Trichirapalli District in the year 1975. The said industry had high tension electricity service connection in HT.SC.No.63 and the sanctioned quantity of electricity for consumption initially was 750 KVA. It was increased to 4000 KVA on 31.12.1984. Again from 29.07.1994 it was reduced to 1900 KVA. 2. With a view to encourage the setting up of new industries in the State of Tamil Nadu, the Government had given HT Tariff-I, Tariff Concession for new industrial undertakings. In pursuance of new industrial policy announced by the Government of Tamil Nadu on 20.01.1992, the said tariff concession applicable for a new industrial undertaking was made available for any expansion unit of the main industry irrespective of its location but availing separate service under this tariff. Accordingly, the Government issued G.O.Ms.No.1330, Public Works Department, dated 17.09.1992 thereby amending the schedule to the Tamil Nadu Revision of Tariff Rates on Supply of Electrical Energy Act, 1978. As per the said amendment, the tariff concession shall be applicable to expansion of industry also. The term "expansion" has been defined in the explanation appended to clause (2) of the Amended Rules as follows:- "Explanation: The term "expansion" shall mean an increase in production which results in an increase of 25% or more in the consumption of electricity by the industry with reference to the highest electricity consumption of such industry in the three completed financial years preceding the application." Subsequently, the Government issued G.O.Ms.No.35, Energy (A2) Department, dated 01.03.1994 thereby amending the Schedule to the Tamil Nadu Revision of Tariff Rates on Supply of Electrical Energy Act, 1978 in exercise of its power conferred under Section 4 of the said Act. According to the said amendment, the tariff concession for High Tension Industries coming under High Tension Tariff-I shall be as follows:- "(a) In the case of New High Tension Industries to be set up in the areas other than the Madras Metropolitan areas, the following concessional tariffs shall be charged for the first three years from the date, the consumer is given service connection under High Tension Tariff-I:- https://hcservices.ecourts.gov.in/hcservices/ For the first year : 60% of the High Tension rates For the second year : 70% of the High Tension rates For the third year : 80% of the High Tension rates For the fourth year : Full Tariff 3. During the year 1994, the petitioner set up an expansion unit, applied for HT Electricity Service Connection for the said expansion unit and the same was accordingly given by the Tamil Nadu Electricity Board [hereinafter referred to as "the respondent Board"] with effect from 14.11.1994. The petitioner requested for grant of concession. As per the above referred to Government Orders concession was granted for a period of three years with effect from 28.11.1994 to 27.11.1997 vide proceedings of the Superintending Engineer, Industrial Energy Management Cell by letter No.568/SE/IEMC/EE(T)/ AEE.2/AE.3/95-2, dated 16.02.1995. The petitioner enjoyed electricity and also concession throughout the said period for the electricity consumed for the expansion unit under the HT Service Connection No.HT.SC.152. 4. In the mean while, during the year 1995, according to the petitioner industry, the company found it very difficult to run the main unit as it became non-viable due to various factors such as, labour unrest , paucity of modern technology , etc. Therefore, the main unit was closed on 25.09.1995 and the service connection under HT.SC.No.63 was also surrendered. It was approved by the respondent Member [Distribution], Tamil Nadu Electricity Board, Chennai vide letter No.IEMC/E2/A1/F.ARAVIND STEEL/CR.10151/95, dated 12.12.1995 with effect from 24.09.1995. 5. Subsequently, it appears that there was some audit objection in respect of the concession enjoyed by the petitioner industry through HT.SC.No.152 stating that the expansion unit did not satisfy the requirements of the Government Orders referred to above. Therefore, a show cause notice was issued by the 3rd respondent on 22.10.1999 calling upon the petitioner to show cause as to why the new industry tariff concession for the expansion unit enjoyed should not be withdrawn and consequently, a sum of Rs.2,74,73,613.95 should not be recovered in respect of the said service connection. The petitioner submitted an explanation for the same on 01.11.1999 stating that the concession enjoyed by the petitioner was strictly in accordance with the Government Orders and there was no violation of any terms and conditions and, therefore, the concession cannot be withdrawn and thus, the petitioner is not liable to pay the amount demanded in the show cause notice. https://hcservices.ecourts.gov.in/hcservices/ 6. Rejecting the said explanation, the Superintending Engineer, the 3rd respondent herein by his proceeding in Letter No.SE/TEDC/M/Ty/DFC/HT/A4/F.HT.Sc.No.152 (New No.81)/D. 401/99, dated 21.03.2000 confirmed the show cause notice thereby demanding the above said sum. In the said order, the last but one paragraph reads as follows:- " Under the circumstances stated above and inasmuch as the basic condition that there shall be increase in production as stipulated in the Government Orders G.O.(Ms) No.1330, PW (Elecy.), dated 17.09.1992 and G.O.(Ms)No.35, Energy (A2) Department, dated 01.03.1994 has not been complied , it is concluded that the proposed withdrawal of Tariff concession as per the show cause notice issued to you under reference (5) cited above is in order and the appeal made by you to withdraw the show cause notice issued by this office is not feasible of compliance. " 7. Challenging the said order, the petitioner preferred an appeal to the 2nd respondent who in turn by his proceeding in Lr.No.024489/1515/Accts/A1/2000, dated 11.05.2000 rejected the said appeal. Again, the petitioner preferred a further appeal to the 2nd respondent and the same was rejected by letter No.2993/2111/Accts/A1/F.HT.SC.No.81/2000, dated 21.11.2000. Challenging the above orders, the petitioner has come up with this writ petition. 8. I have heard Mr.K.Viswanath, learned counsel for the petitioner as well as Mr.P.S.Raman, learned Advocate General appearing for the respondents and also perused the records carefully. 9. The first and foremost contention of the petitioner is that he has not violated any of the conditions stipulated in the Government Orders referred to above; whereas the contention of the respondents is that the petitioner violated three essential requirements enumerated in the Government Order inasmuch as firstly, the petitioner closed down the main unit by retaining only the expansion unit; secondly, the expansion unit did not show increase of 25% in the electricity consumption as stated in the Government Order; and thirdly, the increase in production was also not shown during the relevant period by the petitioner company. 10. In order to appreciate the above points at lis, let me first have a look into the amended provision, according to which, the term "expansion" shall mean and satisfy the following:- (1) increase in production; (2) such increase in production resulting in an increase of 25% or more in the consumption of electricity; (3) such increase in production and increase in https://hcservices.ecourts.gov.in/hcservices/ consumption of electricity relate to entire industry inclusive of expansion unit; (4) The said 25% or more of consumption of electricity is with reference to the highest electricity consumption of such industry in the three completed financial years preceding the application. 11. Now coming to the facts of the case, so far as the first requirement viz., there should be increase in production is concerned, after the establishment of the expansion unit, the petitioner has shown increase in production. Records have been produced by the petitioner to show that the production of the industry before the establishment of the expansion unit was 40288.72 Tons; whereas after the establishment of the expansion unit, the total production for three years during the relevant period of the entire industry was 43078.53 Tons. Regarding this factual aspect, there is no controversy. Thus, the petitioner had shown increase in production during the relevant period after the establishment of the expansion unit and so the first condition is satisfied. 12. Now, coming to the second requirement viz., increase of 25% or more in the consumption of the electricity, according to the data furnished before this Court by the petitioner [not disputed by the respondents], during December, 1991 to November 1994, the consumption of electricity by the main unit of the petitioner industry was totally to the tune of 2,29,33,831 units. The highest electricity consumed in a month during the said period was shown in the month of August, 1992 showing 9,17,900 units. According to the respondents, based on the same, as per the Government Order, the total consumption for 36 months is to be calculated [i.e., 9,17,900 units X 36 months = 3,30,44,400 units]. If it is so done, it works out to 3,30,44,400 units. According to the learned Advocate General, during the subsequent period of three years during which concession was enjoyed, there should have been increase of 25% of consumption over and above 3,30,44,400 units. If increase of 25% in the consumption of electricity is added to 3,30,44,400 units , it works to 4,13,05,500 units. But, the total consumption of the industry recorded at the end of the concession period was only 3,38,27,700 units. Regarding this data also there is no dispute. Thus according to the learned Advocate General, the petitioner did not show increase in consumption by 25% or more as required under the amended rule. This was the reason why , according to the learned Advocate General, the concession was withdrawn and the petitioner was asked to pay amount allowed as concession. 13. But, the learned counsel appearing for the petitioner would seriously dispute the above method of calculation. According to him, during the period of three years preceding the tariff concession period, the total unit of electricity consumed should be counted and based on the same average consumption per month should be calculated. Based on the https://hcservices.ecourts.gov.in/hcservices/ average consumption for a month alone, it should be found out whether an increase of 25% or more in the consumption of electricity was achieved by the petitioner industry during the concession period. The learned counsel would further submit that according to his calculation, the total consumption during 1991-94 before the establishment of the expansion unit was 2,29,33,831 units and during the concession period it was 3,38,27,700 unit and thus there was increase in consumption of electricity to the tune of 1,08,93,869 units. Thus, the increase in consumption of electricity, according to him, was 47.50%. According to the learned counsel for the petitioner, 25% of increase would represent only 82,61,100 units. Thus, according to him, the petitioner industry has satisfied the amended tariff rule. 14. Though the arithmetic calculation made by either party appear to be some what complicated in fact, it is not so. The amended tariff rule, as per the Government Order cited above, does not leave behind any ambiguity. A close reading of the same would go to show that the increase of 25% or more in the consumption of electricity is with reference to the highest electricity consumption of such industry in the three completed financial years preceding the application. Here, the expression "with reference to the highest electricity consumption of such industry" needs to be under scored. Had it been the intention of the Government to take into account the average consumption per month during the said three years period prior to the concession period, certainly, the language would have been different, such as, "with reference to the average electricity consumption per month of such industry". Therefore, as rightly pointed out by the learned Advocate General, it is crystal that the highest consumption of electricity in a particular month during the three completed years before the concession period alone is the relevant base for the purpose of deciding as to whether there had been increase to the tune of 25% in the consumption of electricity by the industry. 15. Now, returning back to the facts, there is no controversy that during the period between December, 1991 and November 1994, the highest electricity consumption was shown in the month of August 1992 to the tune of 9,17,900 units. This shall be the basis upon which the entire calculation is to be made in this case. As per the calculation made by the respondents, this should be multiplied by 36 to know the consumption for 36 months. In my considered opinion, since the electricity tariff is fixed for every month, the industry must show increase of 25% in the consumption of electricity over and above 9,17,900 units every month and thus the method of calculation made by either party, as extracted above, is not correct. 16. Now, let us calculate as to what is increase of 25% over and above 9,17,900 units. It comes to 2,29,475/- units per month. Adding the same to 9,17,900 units, it works out to https://hcservices.ecourts.gov.in/hcservices/ 11,47,375/- units per month. Therefore, as per the amended rule, the industry should have consumed at least 11,47,375 units every month during the concession period besides showing increase in production. 17. A perusal of the data submitted by the petitioner would go to show that the petitioner industry had consumed 11,47,375 units and more only during certain months and not during the entire period. This needs to be deeply analysed by the respondent Board to find out the months during which the industry consumed 11,47,375 units or more and to extend the concession only for those months above. 18. The next contention of the petitioner is that there is no necessity to keep the main unit alive during the entire period of concession. The learned counsel for the petitioner would submit that the closure of the main unit was accepted by the respondent Board and, therefore, the respondent is estopped from contending that because the main unit was closed, the petitioner is not entitled for the tariff concession. I find every force in the said contention of the petitioner. A perusal of the amended rule would go to indicate that there is no condition that the main unit should be kept functional during the entire concession period. It only states that the total consumption of the electricity by the industry should be increased by 25%. Here, the language employed in the amended rule does not denote either main unit or expansion unit. It refers only to the industry as a whole. It includes both the main unit as well as the expansion unit. Therefore, it is immaterial whether the main unit was kept functioning through out the concession period or not. As it is stated by the petitioner, since the main unit became non viable, it had to be closed. There might be lot of ups and downs in the industry. For the purpose of enjoying the tariff concession, a non viable unit cannot be kept operational. As per the amended rule, if the expansion unit, even after the closure of the main unit shows increase of 25% or more in the consumption of electricity [i.e.,] to the tune of 11,47,375/- units it would satisfy the requirements of the rule. Therefore, it is for the respondents now to verify for each month as to whether the industry either both the service connections put together or HT.SC.No.152 alone after the closure of the main unit had consumed 11,47,375 units or more. In such of those months during which the petitioner industry had so consumed 11,47,375 units or more, the petitioner is entitled for the tariff concession as per the amended rule and for the other months, the petitioner is not entitled for tariff concession. 19. The learned counsel for the petitioner would submit that there was no supervising mechanism to inform the petitioner every month as to whether the industry had shown increase of 25% or more in the consumption of electricity and whether the industry had shown increase in production or not. He would submit, had it been brought to the notice of the petitioner then https://hcservices.ecourts.gov.in/hcservices/ and there [i.e.,] at the end of the every month about the above facts, the petitioner industry would have taken a different course by way of remedial measures to satisfy the conditions every month. At the first blush, this argument may appear to be reasonable. But, in my considered opinion, it is not acceptable. When the Government order is unambiguous , it is the duty of the petitioner alone to see whether the industry was consuming the required quantity of electricity during every month or not. The respondent Board on its part would have also reminded the petitioner of the above position. But, there is no such legal obligation on the part of the respondent Board to remind the petitioner of his obligation. Therefore, this argument is rejected. 20. The learned counsel for the petitioner would place reliance on the judgement of the the Hon'ble Supreme Court in Kusumam Hotels (P) Limited v. Kerala State Electricity Board and ohters, AIR 2008 SC 2796 wherein the Hon'ble Supreme Court in para 16 & 17 has held as follows:- "16. There cannot be any doubt whatsoever that a policy decision can be reviewed from time to time. It is also beyond any doubt that the concessions granted can be withdrawn in public interest. Indisputably, the State is also entitled to change or alter the economic policies. Appellants do not have any vested right to enjoy the concessions granted to them forever, particularly when the Board is constituted and incorporated under the provisions of Electricity (Supply) Act, 1948. Any policy decision adopted by the State would not be binding on the Board, save and except provided for in the Act. The Board being an independent entity, the duties and functions of the Board vis-à-vis the State are enumerated in the act. The Board, however, would be bound by any direction issued by the State Government on questions of policy. A dispute which may arise as to whether a question is or not a question of policy involving public interest, Central Government is the final arbiter. The policy decision adopted by the State on the basis whereof the Board felt obligated to grant electrical connection in favour of the appellants on the basis of industrial tariff must, therefore, be understood in the context of section 78A of the 1948 Act. What is binding on the Board is the policy of the State. The direction of the State was to apply a particular category of tariff to the appellants. Such directions could have been withdrawn while making another https://hcservices.ecourts.gov.in/hcservices/ tariff. The State indisputably has the power to grant subsidy from its own coffer instead of directing the Board to grant concession. 17. It is now a well settled principle of law that the doctrine of promissory estoppel applies to the State. It is also not in dispute that all administrative orders ordinarily are to be considered prospective in nature. When a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication. The authority issuing such direction must have power to do so. ......." 21. Taking me through the said judgement, the learned counsel would submit that in the given case also, applying the principle of doctrine of equity, the respondent Board should be barred from withdrawing the concession retrospectively after two years of the expiry of the concession period. But, I am not able to countenance the said argument for the simple reason that it was a case in respect of an administrative order passed by the Government. While considering such order, the Hon'ble Supreme Court had to say that if a policy decision is to be given retrospective operation, it must be stated so expressly or by necessary implication and further the authority issuing such direction must have power to do so. Here, in the instant case, there is no withdrawal of the tariff concession by amending the rule by giving retrospective operation. To put it otherwise, it is not a case of withdrawal of the Government Order under which the tariff concession was given. This is a case where the consumption charge is demanded because of the fact that the petitioner did not fulfil the conditions of the rule through out the period of concession. Therefore, the principles stated in the said judgement have got no application to the facts of the present case. 22. The learned counsel appearing for the petitioner would further submit that it is far beyond the power of the respondent Board to make demand long after the expiry of the concession period. To put it otherwise, the learned counsel would submit that the concession period expired on 27.11.1997 itself; whereas the show cause notice was issued on 22.10.1999. Thus, the action of the respondent Board cannot be sustained on the ground of inordinate delay. In this regard, the learned Advocate General would submit that the Board is so empowered to make a demand for recovery of the dues under Section 3 of the Tamil Nadu Electricity Board (Recovery of Dues) Act, 1978. https://hcservices.ecourts.gov.in/hcservices/ 23. The learned Advocate General would point out that there is no period of limitation provided in the Act and so it cannot be said that the demand is barred by any limitation. In this regard, he would rely on a judgement of the Hon'ble Supreme Court in Collector of Central Excise, Jaipur v. Raghuvar (India) Limited, (2000) 5 SCC 299 wherein the Hon'ble Supreme Court in para 13 has held as follows:- "13. Any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor. It is not for the courts to import any specific period of limitation by implication, where there is really none, though courts may always hold when any such exercise of power had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period." 24. As held in the said judgement, for making a demand under the above Act, though there is no period of limitation provided in the Act, it should be done within a reasonable time. Here, in this case, the same has been done and the said demand cannot be stated to have been made not within the reasonable time. In view of the above, I hold that though the respondent Board is right in contending that the petitioner is not entitled for the tariff concession, it cannot be said that the petitioner is not so entitled for such concession for the entire period of three years. As I have already stated, for certain months the petitioner is entitled for tariff concession and for the other months, he is not entitled for the tariff concession. Therefore, it is absolutely necessary for the 3rd respondent to identify as to what are the months for which the petitioner is not entitled for tariff concession and then to make demand for such months alone in the manner indicated above in the preceding paragraphs. But, the impugned order