1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.7821 of 2006 Trambak Hatcheries Pvt. Ltd. Through Prakash Wagaskar, Director. ... Petitioner V/s. 1. Maharashtra State Electricity- Distribution Co.Ltd. Through Chief Engineer (Commercial), & ors. ... ... Respondents Mr.R.S . Apte i/by Mr.Vaibhav Patankar for petitioner. Mrs.M.P.Thakur , AGP. Mr.P.P.Chavan i/by M/s.Little & Co. for respondent no.1. ----- CORAM : SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Dated : 30 th January 2008 ORAL JUDGMENT : (Per Ranjana Desai, J.) 1. The petitioner is a Private Limited Company. It carries on business of poultry farm since 1984. The 1st respondent is the Maharashtra State Electricity Distribution Board Company Limited, which has stepped in the shoes of its predecessor Maharashtra State Electricity Board (for short 2 “MSEB”). 2. The State of Maharashtra is the 2nd respondent, under whose overall supervision and control the 1st respondent works. 3. In short the case of the petitioner is that in 1988 the 2nd respondent had applied different tariff for poultry layer farms and hatcheries. As per this policy of the Government, reflected in certain circulars and directions issued by the MSEB, the MSEB had to separate the petitioner's meters and give the petitioner benefit of tariff concession. According to the petitioner, the MSEB has not done so. The petitioner has, therefore, filed this petition. 4. It is necessary to have a look at Departmental Circular (Commercial) No.442 dated 7.11.1998 issued by the MSEB, on which the petitioner has placed reliance. This circular states that in view of the Government directions, it has been decided to charge the consumption in poultry farms at the uniform rate of 16 P/U with effect from the billing month of August 1988. The circular further states that the rate may be made applicable for electricity supplied to the poultry 3 farm with effect from the billing month of August 1988. The circular further states that the Government has decided to exempt the levy of electricity duty from the billing month of August 1988 on the electricity consumed in the poultry farms as per circular dated 14.9.1988 and, therefore, no electricity duty is to be charged on the energy supplied to the poultries with effect from August 1988. The circular further goes on to state that in respect of consumers where the load for purposes other than for poultry farming is utilized along with the load for poultry through a common meter, the normal tariffs shall apply till such time as the other loads are separated out and supply for poultry is taken through a separate meter. In case supply is given to any poultry unit at high tension the normal high tension tariff may be made applicable. Direction was issued to implement the above decision. Bills for the consumption in poultries for the month of August 1988 and onwards already billed were asked to be revised. 5. Another Departmental Circular (Commercial) No.451 was 4 issued by the MSEB. By that circular, Circular No.442 was modified. Reference was made to Circular No.433 dated 28.11.1988 and Circular No.447 dated 21.2.1989. It was stated that as per these circulars concessional tariff is to be applied to all types of poultry loads with effect from the billing month of August 1988. In case of consumers having combined load for poultry farms and other purposes, if the consumer separates and makes separate metering arrangements for poultry load, the benefit of concessional poultry tariff should be given to him with retrospective effect. Bills for consumption for the intervening period i.e. 1.8.1988 to the date of fixing separate meters were to be revised on the basis of the readings obtained. This circular further goes on to say that the credit for excess payments made may be given in subsequent bills for power supply. 6. It is the case of the petitioner that sister concern of the petitioner i.e. M/s.Ashok Kumar Hatcheries Pvt. Ltd. applied to the MSEB for separation of meters and refund of excess amount. The MSEB on 23.8.1999 separated its 5 meters and refunded the amount in excess from the year 1988 till the year 1998. 7. According to the petitioner, the petitioner wrote letter dated 10.1.1997 to the MSEB intimating to the MSEB that the bills raised by the MSEB were incorrect. The petitioner requested that taking into consideration the concessional rate, credit amount be passed on to its regular bills. The petitioner wrote another letter dated 15.12.1999 to the Chairman of the MSEB. In this letter the petitioner stated that in a joint meeting held in Mantralaya in the office of the Minister of State for Power on 5.5.1999 in connection with its sister concern M/s.Ashok Kumar Hatcheries Pvt. Ltd., the Minister had heard both parties and ordered the break up of poultry layer farm and hatcheries i.e. 67% on poultry layer farm and 33% for hatcheries. The petitioner further stated that in that meeting the Chief Engineer (Commercial) of MSEB was present. The Chairman was requested that the same yardstick may be applied to the petitioner and the arrears due from 1988 till installation of two meters on 6 6.11.1998 be refunded or adjusted. 8. The petitioner received letter dated 29.3.2001 from the Chief Engineer (Commercial) of the MSEB stating that the competent authority of MSEB has taken a decision that concession given to M/s.Ashok Kumar Hatcheries Pvt. Ltd. is confined to that case only and in future all cases should be decided independently to protect the MSEB's revenue. Thus, the petitioner's request was not acceded to. The petitioner thereafter made several representations to the 1st respondent as well as to the chair person of the 1st respondent. The respondents have, however, failed to consider the petitioner's request, which, according to the petitioner, is not justified considering the policy of the Government and the circulars issued by the MSEB in respect thereof and the fact that the MSEB has given benefit of the said policy to the sister concern of the petitioner. 9. On 7.11.2006, the petitioner received a notice from the 1st respondent for permanent disconnection of electricity supply, if the petitioner fails to pay the amount of 7 Rs.2,19,650 /- . We are informed that electricity has since been disconnected. The petitioner has, therefore, approached this court. 10. We have heard learned counsel for the petitioner, who has reiterated the averments made in the petition. He submitted that the circulars issued by the MSEB reflect the policy of the Government. Benefit of this policy has already been given to the sister concern of the petitioner and there is no reason why it should have been denied to the petitioner. He further submitted that the MSEB has no reason to confine M/s.Ashok Kumar Hatcheries Pvt. Ltd.'s case to the facts of that case. He also submitted that merely because there was a suit pending between M/s.Ashok Kumar Hatcheries Pvt. Ltd. and the MSEB, that case does not stand on a different footing. Same yardstick must be applied to similarly situated persons. He, therefore, submitted that the respondents be directed to give benefit of the said circulars to the petitioner. 11. We have also heard learned counsel for the 1st respondent. 8 He has taken us to the affidavit in reply filed by Mr.Prabhakar T. Morankar, Divisional Accountant with the Maharashtra State Electricity Distribution Co. Ltd., Rural Circle, Nashik, He submitted that the Minister for Energy had passed the order in the matter of M/s.Ashok Kumar Hatcheries Pvt. Ltd. considering the peculiar facts and circumstances of that case. M/s.Ashok Kumar Hatcheries Pvt. Ltd. had already filed a suit in Nashik court, challenging the supplementary bills issued by the MSEB and the MSEB had also filed a separate suit for recovery of the said bills. Thereafter in view of the directions of the Deputy Chief Minister and Energy Minister, the competent authority of the MSEB had settled the entire issue. That decision cannot be applied to all cases. 12. We have also gone through the affidavit of one Mr.P.R. Naik, Under Secretary (Energy), Industries, Energy & Labour Department. It is stated in this affidavit that the order in respect of M/s.Ashok Kumar Hatcheries Pvt. Ltd. appears to have been issued by the then Minister of the State (Energy) 9 for the limited purpose of only resolving the dispute regarding applicability of tariff of M/s.Ashok Kumar Hatcheries Pvt. Ltd. and the MSEB. It is further stated that the petitioner has made representation dated 23.5.2006 to the present Minister for Energy and the Minister has forwarded it to the Managing Director of the 1st respondent to do the needful and submit the report. It is also stated that it is the 1st respondent who is required to initiate appropriate action and to do needful. Copy of order dated 5.5.1999 passed by the then Minister of State (Energy) in case of M/s.Ashok Kumar Hatcheries Pvt. Ltd. is annexed to this affidavit. A copy of the representation addressed by the petitioner to the present Minister for Energy is also annexed to this affidavit. 13. So far as thepolicy of the Government is concerned, prima facie, there does not appear to be any dispute because it is reflected in the circulars issued by the MSEB, to which we have made a detailed reference hereinabove. The case of the petitioner, prima facie, appears to be on par with the case of 10 M/s.Ashok Kumar Hatcheries Pvt. Ltd. In that case, the Minister had directed the MSEB to give benefit of concessional tariff to M/s.Ashok Kumar Hatcheries Pvt. Ltd. It is denied to the petitioner on the sole ground that the order in the case of M/s.Ashok Kumar Hatcheries Pvt. Ltd. was passed in the peculiar facts of that case i.e. there was a pending suit between M/s.Ashok Kumar Hatcheries Pvt. Ltd. and the MSEB. We repeatedly called upon the petitioner as well as the 1 st respondent to give us copies of the plaint and other papers of the said suit. Neither the petitioner nor the 1 st respondent has produced those papers in this court. We are, therefore, unable to make out the difference between the two cases. In the affidavit in rejoinder filed on behalf of the petitioner by one Mr.Prakash D. Wagaskar, Managing Director of the petitioner it is stated that upon the representation made by the petitioner on 26.7.2001, the Minister for Energy has, by his order dated 16.8.2001, directed the 1 st respondent to bifurcate the electricity meters of the petitioner for poultry farms and hatcheries and charge 11 the bills accordingly. A typed copy of the purported order is produced in the court by learned counsel for the petitioner. This order is prior to letter dated 4.5.2006 issued by the MSEB informing the petitioner that the competent authority of the MSEB has rejected the request of the petitioner for charging concessional tariff for poultry farm retrospectively from August 1988 to October 1998 based on activity- wise consumption pattern established after installation of two separate meters in November 1998. This assertion is also made in amended paragraph 16- A of the petition. Neither the 1 st respondent nor the State has chosen to reply to this paragraph. If the Minister had directed the MSEB to issue separate bills to the petitioner for consumption of electricity at different rates applicable to hatchery and poultry separately by his order dated 16.8.2001 just as he had ordered in the case of M/s.Ashok Kumar Hatcheries Pvt. Ltd. then we do not understand why the MSEB should have treated the petitioner in a different manner. Learned AGP is not able to confirm whether the order dated 16.8.2001 has, 12 in fact, been passed by the Minister for Energy. There is a total lack of clarity. The State has produced before us a copy of the representation dated 23.5.2006 sent by the petitioner to the Minster for Energy which bears the endorsement “do the needful and submit the report”. It is not clear whether this is a direction to give benefit of concession in tariff to the petitioner. The State's stand needs clarity. We feel that perhaps all the papers were not placed before the Minister for Energy. We feel that if the representation dated 23.5.2006 is again placed before the Minister for Energy along with earlier order dated 16.8.2001, if any, and other relevant papers for his consideration, that would make the position clear. We are of the opinion that the Minister for Energy should consider the petitioner's representation dated 23.5.2006 and pass appropriate orders thereon. 14. In the circumstances, we pass the following order:- (a) The petitioner's representation dated 23.5.2006 is directed to be placed before the Minister of State for Energy 13 along with all relevant papers. (b) Upon the representation being placed before him, the Minister of State for Energy shall consider it independently in accordance with law. The representation is directed to be considered within a period of three months from today. (c) The order passed by the Minister of State for Energy be communicated to the petitioner. (d) The interim order passed by this court shall continue to operate till the Minister of State for Energy disposes of the petitioner's representation and if the order passed by the Minister is adverse to the petitioner, for a period of four weeks from the date of communication thereof to the petitioner. (e) We make it clear that we have not expressed any opinion on the merits of the petitioner's case. 15. The petition is disposed of in the aforestated terms. There shall be no order as to costs. (SMT.RANJANA DESAI, J.) 14 (SMT.ROSHAN DALVI, J.)