1. WRIT PETITION NO.5542 OF 2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5542 OF 2008 The Ashok Sahkari Sakhar Karkhana Ltd., At Post-Karegaon Factory, Tq-Shrirampur, Dist-Ahmednagar, Through its Managing Director Mr. Sitaram Dagduji Kakade, R/o-Ashok Nagar, Tq-Shrirampur, Dist-Ahmednagar. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through the Secretary, Department of Energy, having its office at Mantralaya, Mumbai, 2) The Chief Engineer (Electrical), Govt. of Maharashtra, Having its office at P.W. & H.D. Department, Administrative Bldg., IIIrd Floor, Ramkrishna Chemburkar Marg, Chembur, Mumbai-400071, 3) The Electrical Inspector, P.M.T. Commercial Bldg. No.1, IIIrd Floor, Swargate, Pune 411042, 4) The Tahsildar, Shrirampur, Tq-Shrirampur, Dist-Ahmednagar, 5) Maharashtra State Electricity Generation Company Ltd.(A'nagar), Through its Suptt. Engg. Ahmednagar Division, Ahmednagar. ...RESPONDENTS. 2. WRIT PETITION NO.5542 OF 2008 ... Shri.R.R. Karpe Advocate for Petitioner. Shri.V.D Godbharle, A.G.P. for Respondent Nos. 1 to 4. Shri.S.M. Godsay Advocate for Respondent No.5. ... WITH WRIT PETITION NO.5545 OF 2008 Dnyaneshwar Sahakari Sakhar Karkhana Ltd., At Post-Bhende (Bk), Tq-Newasa, Dist-Ahmednagar, Through its General Manager, Mr. Kakasaheb Abasaheb Shinde, R/o-Dnyaneshwarnagar, Bhende (Bk), Tq-Newasa, Dist-Ahmednagar. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through the Secretary, Department of Energy, having its office at Mantralaya, Mumbai, 2) The Chief Engineer, Govt. of Maharashtra, Having its office at PW & HD Department, Administrative Bldg., 3rd Floor, Ramkrishna Chemburkar Marg, Chembur, Mumbai-400071, 3) The Electricity Inspector, PMT Commercial Bldg. No.1, 3rd Floor, Swargate, Pune 411042, 4) The Tahsildar, Newasa, Tq-Newasa, Dist-Ahmednagar, 3. WRIT PETITION NO.5542 OF 2008 5) Maharashtra State Electricity Generation Company Ltd.(A'nagar), Through its Suptt. Engg. Ahmednagar Division, Ahmednagar. ...RESPONDENTS. ... Shri.H.D. Deshmukh Advocate for Petitioner. Shri.V.D Godbharle, A.G.P. for Respondent Nos. 1 to 4. Shri.S.M.Godsay Advocate for Respondent No.5. ... CORAM: NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATE : 30TH NOVEMBER, 2010. PER COURT : 1. The Petitioners are co-operative sugar factories. These Petitions were filed being aggrieved by the notices issued by concerned Tahsildars in the year 2008 in respect of recovery of electricity dues. In the proceedings of Writ Petition No.5542 of 2008 the recovery is to the tune of Rs.1,25,46,504/- (Rupees One Crore Twenty Five Lakh Forty Six Thousand Five Hundred Four only) and in Writ Petition No.5545 of 2008 the recovery is to the tune of Rs.1,00,57,317/- (Rupees One Crore Fifty Seven Thousand Three 4. WRIT PETITION NO.5542 OF 2008 Hundred Seventeen only) By an order dated 19th September 2008, the Division Bench of this Court (CORAM: F.I. REBELLO AND K.U. CHANDIWAL, JJ.) till further orders granted interim relief restraining the Respondent No.4 Tahsildar by an order of injunction from taking any further steps in pursuance of the notice in respect of electricity duty, in accordance with the provision of Maharashtra Land Revenue Code. 2. In the proceedings of Writ Petition No. 5542 of 2008 detail affidavit in reply was filed by Respondent No.4 on 17th October, 2008. Affidavit in reply was also filed on behalf of Respondent Nos. 1 to 3 on 24th June, 2009. The deponent in Para 6 and 7 contends that: "6. In reply to para no.6 of the Writ Petition I say and submit that, the Government Notification dated 30th October, 1996 issued under the Bombay Electricity Duty Act, 5. WRIT PETITION NO.5542 OF 2008 1958 by the Industries, Energy and Labour Department which is at Exhibit 'D' page 35 of the Writ Petition is also not helpful to the petitioner for non payment of electricity dues as claimed by the Respondents. 7. In reply to para no.7 of the Writ Petition I say and submit that, during the period from September 1978 to November 1985 there was no exemption of electricity duties for the energy generated by D.G. set and in view of the above position levy and recovery of electricity dues as claimed was regular and non payment of the electricity duty is liable for penal interest at 18% per annum for first 3 months and 24% per annum for remaining period upto date of payment as per Section 8 of Mumbai Electricity Duty Act, 1958 and therefore petitioner are under obligation to pay amount claimed by the answering Respondents along 6. WRIT PETITION NO.5542 OF 2008 with above interest till realisation of the amount." 3. Shri. Karpe, the learned counsel appearing for the Petitioner in Writ Petition No. 5542 of 2008 submits that the co-operative sugar factory ought to have been exempted from payment of electricity duty on par with the other industries consuming energy generated in a generating station by a person carrying on an industry and consumed by himself for such industry under notification issued by the State in exercise of powers conferred by Section 5A of the Bombay Electricity Duty Act, 1958. The Petitioner refers to two notifications in this regard, which are annexed at Exhibit B and D. As per the first notification, the exemption operates with effect from 1st September, 1994 and in the second notification the exemption period starts from October, 1996. The recovery notices under Maharashtra Land Revenue Code were issued by the Tahsildar for the period prior to the year 1994. 7. WRIT PETITION NO.5542 OF 2008 4. Learned counsel for the Petitioner submits that without issuing any show cause notice the revenue officer started recovery proceedings and consequently issued recovery notices. Shri. Deshmukh, the learned counsel appearing for the Petitioner in Writ Petition No.5545 of 2008 submits that the entire electricity duty which is sought to be recovered by the revenue officer, was already deposited, inspite of the same, the recovery proceedings were initiated. 5. Shri. Godbharle, the learned A.G.P. appearing for the Respondents submits that the Petitioners have wrongly relied upon interim orders passed by the High Court and order passed by the Apex Court annexed at Exhibit K, for the purposes of getting relief from this Court. The learned A.G.P. has placed on record separate compilation which includes the Judgment delivered by the Division Bench of the Bombay High Court at its Principal Seat (CORAM: B.H. MARLAPALLE AND 8. WRIT PETITION NO.5542 OF 2008 SMT. ROSHAN S. DALVI, JJ.) on 5th October, 2009 in batch of Writ Petitions being Writ Petition Nos. 6414 of 2000, 495 of 2001, 5207 of 2001. It is further submitted that the State of Maharashtra filed Special Leave Petition against the said Judgment and Order. The learned A.G.P. submits that by an order dated 1st April, 2010 the Apex Court granted leave to file Appeal. A copy of the order passed by the Apex Court also forms part of this compilation. The learned A.G.P. submits that on 3rd July, 1997 notice was issued to the Petitioner in Writ Petition No.5542 of 2008 in respect of recovery of dues of electricity duty. 6. We are not convinced with the submissions that the Petitioners being a co-operative sugar factory ought to have been given the benefit of exemption in electricity duty with effect from the year 1978 onwards. The exemption notifications placed on record, grants exemption from the year 1994 to the industries. In the present Petitions we are concerned with the issue in respect of 9. WRIT PETITION NO.5542 OF 2008 payment of electricity duty prior to the period of issuance of the notifications. In the facts of the case the Petitioners would not be entitled to claim such exemption in absence of any notification. 7. Shri. Deshmukh, learned counsel appearing for the Petitioner in Writ Petition No.5545 of 2008 submits that the Petitioner factory had deposited the amount which is subject matter of the impugned notices. Admittedly both these Petitioners did not file reply with the concerned revenue officers or authorities in respect of the notice of recovery of recovery. 8. In the facts of the case, we are of the view that the Petitioners are entitled to file representations, within a period of TWO WEEKS from today before the Secretary, Industry, Energy and Labour Department of the Government of Maharashtra. 10. WRIT PETITION NO.5542 OF 2008 9. In case such representations are received by the Secretary, Industry, Energy and Labour Department, we direct the Secretary, to pass appropriate orders on the said representations within SIX WEEKS from the date of receipt of the representations, strictly in accordance with law. With these directions the Writ Petitions are disposed of. For a period of EIGHT WEEKS from today the recovery proceedings initiated against the Petitioners stand stayed. . Authenticated copy of this order be provided to the learned A.G.P. [SHRIHARI P. DAVARE, J.] [NARESH H. PATIL, J.] asb/NOV10/wp5542.08