wp157-11 (corrected).doc 1 IN THE HIGH COURT OF BOMBAY AT GOA PANAJI, GOA APPELLATE SIDE WRIT PETITION NO.157 OF 2011 Sunrise Electromelt Ltd .. Petitioner versus State of Goa & Ors .. Respondents ALONGWITH WRIT PETITION NO.158 OF 2011 Global Ispat Pvt Ltd .. Petitioner versus State of Goa & Ors .. Respondents ALONGWITH WRIT PETITION NO.159 OF 2011 Karthik Inductions Ltd .. Petitioner versus State of Goa & Ors .. Respondents ALONGWITH WRIT PETITION NO.160 OF 2011 Puja Ferro Alloys Pvt Ltd .. Petitioner versus State of Goa & Ors .. Respondents wp157-11 (corrected).doc 2 Mr.Nitin Sardessai with Mr.L.Raghunandan for the petitioner. Mr.S.S.Kantak, Advocate General with Ms.Sapna Mordekar, Addl.Govt.Advocate for the respondents. CORAM : S.C.DHARMADHIKARI & F.M.REIS, JJ. RESERVED ON : 18th April 2011. PRONOUNCED ON : 8th July 2011. JUDGMENT (PER S.C.DHARMADHIKARI, J): . Rule. Respondents waive service. By consent Rule made returnable forthwith. 2 The petitioner, which is a company registered under the Companies Act, 1956 has invoked the jurisdiction of this Court under Article 226 of the Constitution of India challenging a demand notice dated 21st February 2011 under which the respondents are seeking to recover an amount of Rs.40,65,902/- from it. wp157-11 (corrected).doc 3 3 The demand notice reads as under: “ Whereas the Government had notified the grant of 25% rebate vide Notification dated 30/9/1991 which was subsequently rescinded vide Notification dated 31/3/1995 with effect from 1/4/1995. And whereas the Government had vide Notifications dated 15/5/1996 and 1/8/1996 again extended the benefits of 25% rebate to industrial consumers which Notifications were again rescinded vide Notification dated 24/7/1998. And whereas the Government of Goa had notified “the Goa (Prohibition further payment and recovery of benefits availed by industrial consumers as 25% rebate. And whereas certain writ petitions were filed in the Hon’ble Supreme Court of India challenging the constitutional validity of the above referred Act. And whereas the Hon’ble Supreme Court had vide its judgment dated 3/5/2010 held that the above referred Act does not suffer from any invalidity and that the challenge made by the petitioners to its constitutionality fails. And whereas the Government of Goa vide Notification No.120/4/CEE/TECH dated 27th January, 2011 has, under powers conferred vide section 3 of the above referred Act, notified the manner and time limit within which any person or any industrial consumer in the State of Goa, who has also availed the benefit of 25% rebate in pursuance of the Government Notification dated 15/5/1996, and 1/8/1996 shall refund the amount equivalent to the benefit of 25% rebate accrued to it as specified in the schedule therein. wp157-11 (corrected).doc 4 Now, therefore in terms of section ‘3’ of the said Act, read with Notification No.12/4/CEE/TECH dated 27/01/2011, take notice that, you are required to refund the amount of Rs.40,65,902/- (Rupees Forty Lakhs Sixty Five Thousand Nine Hundred and Two only) towards the benefit of 25% rebate availed by you under the Notification dated 1./8/1996 in the manner described below:- Amount equivalent to the benefit of 25% rebate availed Number of Installments of refund Payable Rs. 40,65,902/- (Rupees Forty Lakhs Sixty Five Thousand Nine Hundred and Two Only) 4 (four) installments i.e first installment equivalent to 50% of the amount of refund i.e Rs. 20,32,949/- and balance in three equal monthly installments of Rs. 6,77,651/- First installment is payable within 30 days from the date of receipt of the demand notice by the industrial consumer and the balance amount shall become payable on the tenth day of every succeeding month. wp157-11 (corrected).doc 5 Take further notice, that failure on your part to refund the amount within the stipulated period, you will be liable to pay interest @ of 18% per annum on the sum date from the date of expiry of the above specified period till the full refund is effected.” 4 It is the case of the petitioner that the respondents are seeking to recover this amount allegedly on the ground that the same was received by the petitioner towards 25% rebate under notifications dated 15th May 1996 and 1st August 1996. It is submitted that the respondent No.1 for the purpose of securing and assisting rapid and orderly establishment and organization of industries in industrial areas and industrial estates constituted Goa, Daman and Diu Industrial Development Corporation. The function of this Corporation was to promote and assist rapid and orderly establishment growth, development of the industries. The State Government with a view to attract entrepreneurs to set up industries in Goa, through the respondent No.1-Corporation offered incentives. Such incentives included the power rebate, Income Tax holiday for 5 years, Sales Tax holiday for 15 years for small scale industries and 12 years for medium scale industries, wp157-11 (corrected).doc 6 capital subsidy of Rs.25 lakhs etc. As far as the present petition is concerned, the incentive was in the form of rebate in power supply charges. 5 It is contended that incentive in the nature of rebate of 25% in the power tariff for a period of 5 years from the date of availment of power supply was promised by the State Government and pursuant to the same, the Notification dated 30th September 1991 came to be issued. In terms of the said notification, industrial units who applied for availing high tension or low tension power supply on or after 1st October 1991 for bonafide industrial activities were eligible or entitled to the rebate of 25% on the tariff chargeable under the Government Notification No.2/20/86-PS & WD dated 27th June 1988 for a period of 5 years from the date on which electricity supply was made available to such units. Annexure B to the petition is a copy of this notification. 6 It is stated that lured by various incentives given by the State Government, the petitioner set up an industry in Goa. It also wp157-11 (corrected).doc 7 sought or obtained loans from banks and financial institutions. It also obtained a plot of land on lease from the Industrial Development corporation. The petitioner applied for power supply from the respondents. The application for power is dated 1st February 1994. The petitioner entered into Power Supply Agreement with the Electricity Department through respondent No.3 on 8th February 1995. However, the power was actually availed/supplied on 10th May 1995. The petitioner states that although power was supplied to industrial unit on 10th May 1995, the respondents could not immediately give the benefit of power rebate to the petitioner. The rebate was actually given to the petitioner from January 1997 although the date of connection was much prior thereto. It is alleged that the Government devised a policy to give arrears of the accumulated rebate and accordingly from 1st January 1997, 25% rebate was given on the current bill for the current month and accumulated arrears of rebate i.e the rebate from the date of connection till December 1996 was sought to be disbursed in 60 equated monthly installments. For eg. the bill of January 1997 showed the rebate of 25% for January 1997 as wp157-11 (corrected).doc 8 also showed 1/60th installment. The petitioner was required to pay the bill by deducting the amount shown in the bill within 25% rebate of the current month as also by deducting 1/60th installment. 7 As far as the other petitioners are concerned, the position is similar, save and except, the date of power supply and connection so also difference in nature of business. It is stated that the respondents issued notification dated 31st March 1995 rescinding the earlier notification dated 30th September 1995. Annexure C is copy of this notification. The effect of this notification is that the scheme of rebate contained in the 1991 notification was stopped thereby the new industrial units applying for power after 31st March 1995 would not get the benefit under the notification dated 30th September 1991. 8 It is contended that subsequently the respondent No.1 issued two other notifications dated 15th May 1996 and 1st August 1996. In terms of the notification dated 15th May 1996, earlier wp157-11 (corrected).doc 9 notification dated 30th September 1991 came to be amended so as to include another category of power consumer i.e ‘extra high tension’. The earlier notification referred to only two categories, namely, high tension and low tension. Subsequent notification dated 1st August 1996 further amended September 1991 notification so as to make the benefit available to all industrial units who applied or availed extra high tension, high tension or low tension power supply on or after 1st October 1991. This notification further gave concessional tariffs i.e rebate of 25% on the energy charges as per the prevailing tariff in force from time to time. Annexure D collectively are copies of the 1996 Notifications. 9 It is contended that by circular dated 31st March 1998 the respondents were pleased to suspend the rebate entitlement of the industrial units. The circular did not however clarify whether the suspension was of rebate given under the notification dated 30th September 1991 or to the rebates given by the two notifications dated 15th May 1996 and 1st August 1996. By another notification dated 24th July 1998, the respondents were pleased to wp157-11 (corrected).doc 10 rescind the notification dated 1st August 1996 published in the official gazette dated 2nd August 1996 with immediate effect. Annexure E is copy of this notification. 10 The petitioner states that the notification at Annexure E dated 24th July 1998 alongwith the circular dated 31st March 1998 came to be challenged by filing writ petitions in this Court. The said petitions were decided by this Court vide common judgment dated 21st January 1999 and in the following terms: “ In view of the above conclusions, we pass the following order: ORDER 1. It is hereby held that the circular dated 31st March 1998 issued by respondent No.2, suspending release of rebate with immediate effect as well as suspension of rebate agreed to be given in sixty monthly installments has no legal efficacy and it is invalid and inoperative. wp157-11 (corrected).doc 11 2. The Notification dated 24th July 1998, published in the official gazette dated 27th July 1998 which is challenged by the petitioner in Writ Petition No.239/98 is held to be legal, valid and operative. It does not suffer from any infirmity. 3. All the petitioners are entitled to 25% rebate in power tariff for the periods as indicated in paragraph 56 of this judgment. 4. The rebate shall be adjusted in sixty equal installments minus the installments which have already been adjusted. 5. The rebate in all cases with effect from 1st August 1996 till 24th July 1998 shall be on energy charges only as per the prevailing tariff in force from time to time at which they were to be billed during the said period. 6. The disconnection of electric connection of the petitioners in Writ Petition No.239/98 and 244/98 is held to be not proper. wp157-11 (corrected).doc 12 7. The proper supply of the aforesaid two petitioner shall be restored (in case it is not already restored) by working out the dues of rebate payable to them as aforesaid in installments. 8. The dues, in any, minus first installments shall be paid by the petitioners within a period of thirty days from today. 9. All the petition are disposed of in the abovementioned terms and Rule is made absolute accordingly. 10.In the circumstances of the cases, we leave the parties to bear their respective costs.” 11 The petitioner submits that the judgment holds that the rescission of the notification dated 30th September 1991 by the subsequent one dated 31st March 1995 only means that the rebate scheme has been discontinued from 1st April 1995. In other words, new industrial units cannot apply for such rebate. The amendment of the notification dated 30th September 1995 after its rescission wp157-11 (corrected).doc 13 on 31st March 1995 clearly indicates that it was very much in existence and operation for those industrial units which had already become entitled to get benefits thereunder. It is submitted that the respondents challenged the Division Bench judgment of this Court by preferring civil appeals to the Hon’ble Supreme Court. By a judgment and order dated 13th February 2001, the Supreme Court dismissed these appeals and held that this Court has taken a balanced view of the matter. It is the case of the petitioner that the notification dated 30th September 1991 was in operation from 1st October 1991 for all the industrial units which had applied for availing power supply on or after 1st October 1991 and the benefit thereof continued for a period of 5 years. 12 It is stated that the notifications dated 15th May 1996 and 1st August 1996 were challenged by filing a writ petition in this Court being Writ Petition No.316 of 1998. By a judgment and order delivered on 19, 23 and 24th April 2001, this Court allowed the petition and held that these notifications could not be termed as a decision of the State Government as there is no compliance with wp157-11 (corrected).doc 14 the rules of business framed under Article 166(3) of the Constitution of India. The petitioner submits that their claim is unaffected by this decision and they were legally and validly entitled to 25% rebate on tariffs notified earlier. Their claim is in terms of the notification dated 30th September 1991. The petitioner was entitled to rebate from the date of connection i.e 10th May 1995 till the end of five years.It is contended that the Government, however, released the benefit from January 1997 till July 1998 to the tune of Rs.40,65,902/-. The rebate was given on the current tariff i.e in terms of 1996 notification. The petitioner states that their entitlement for five years is in terms of the 1988 power tariff notification. Therefore, they were entitled to benefit in terms of money to the extent of Rs.33,40,896/-. The petitioner was paid an additional amount of Rs.7,25,006/-. For all these reasons, it is submitted that the law enacted, namely, the Goa (Prohibition of Further Payments and Recovery of Rebate Benefits) Act, 2002 does not affect their claim or benefit in any manner. The petitioners submit that a notification was issued in terms of the aforementioned Act notifying the manner and time within which wp157-11 (corrected).doc 15 any industrial consumer in the State of Goa who has availed of the benefit of 25% rebate in pursuant of the Government notification dated 15th May 1996 and 1st August 1996 shall refund the same. However, by the demand notice a copy of which is at Annexure ‘G’ to the petition, the respondents are seeking to recover a sum of Rs.40,65,902/-. It is this demand notice which is challenged in these petitions. 13 Mr.Sardesai, learned counsel appearing for the petitioner submitted that in the guise of recovery of rebate under the 1996 notification, what the respondents are seeking to recover is the rebate benefit granted earlier i.e under Notification dated 30th September 1991. Inviting our attention to pages 34 and 35 of the paper-book in Writ Petition No.157 of 2011, Mr.Sardesai submits that notifications and the demand notice read properly would mean that the petitioners entitlement in terms of the 1991 notification and the benefit to which it is entitled in terms of the judgment of the Division Bench of this Court remains untouched and unaffected. The judgment of the Division Bench in the further wp157-11 (corrected).doc 16 Writ Petition being Writ Petition No.316 of 1998 will not apply to the present petitioners because it is a judgment rendered inter- parties. The petitioner is not a party to this judgment. The petitioner’s case is governed by the earlier judgment which is in their own case. In these circumstances, the impugned demand notice cannot be sustained and particularly when the petitioners have shown their willingness to refund the excess amount paid. In all these circumstances, this Court should hold that the impugned demand notice is illegal and wholly arbitrary and violative of the mandate of Article 14 and Article 19 (1)(g) of the Constitution of India. He submits that the demand notices travel much beyond the scope of the Act. The Act and the notification issued therein authorises recovery of rebate received by industrial consumer under notifications dated 15th May 1996 and 1st August 1996 and the earlier benefits are not touched by the same. For all these reasons, it is submitted that the petition be allowed. 14 Mr.Sardesai appearing on behalf of the petitioner relies upon the following decisions in support of his contentions: wp157-11 (corrected).doc 17 1. 2009(6) Bombay Cases Reporter 383 (Petroleum Employees Union Vs. Chief Labour Commissioner & Ors); 2. Decision of Division Bench of this Court dt.19th, 23rd and 24th April 2001 in Writ Petition No.316 of 1998 (Shri.Manohar Parrikar Vs. State of Goa & Ors); 15 An affidavit in reply is filed by Mr.Nirmal Braganza, Chief Electrical Engineer, Government of Goa. In this affidavit it is stated that the petitioners have come before this Court with a case that they have not availed any benefit of 25% rebate under two notifications dated 15th May 1996 and 1st August 1996. The petitioners claim that they have availed the benefits of 25% rebate on the power tariff pursuant to the notification dated 30th September 1991. However, this case cannot be accepted because notification dated 30th September 1991 was rescinded by the State Government with effect from 1st April 1995 vide notification dated 31st March 1995. While it is true that the subsequent notifications wp157-11 (corrected).doc 18 issued in 1996 purported to replace certain words in the September 1991 notification, but by further notification dated 1st August 1996 the notification dated 30th September 1991 was superseded. It is submitted that the twelve writ petitions which were filed in this Court challenging the decision of the Government communicated by the Chief Electrical Engineer vide circular dated 31st March 1998 though held it to be illegal, the notification dated 24th July 1998 was upheld. Consequently, it was held that the rebate benefit will not be available to the petitioner after 27th July 1998 for the unexpired period of five years. Our attention is invited to paragraph 63 of the judgment in the writ petitions filed by some of the petitioners and to the judgment of the Hon’ble Supreme Court and it is submitted in the reply that the observations and findings of this Court in Writ Petition No.316 of 1998 clearly bind the petitioners. It is submitted that the judgment of this Court in Writ Petition No.316 of 1998 has been upheld by the Supreme Court as it was pleased to dismiss the civil appeals by an order dated 3rd May 2010. Therefore, it is contended thus: wp157-11 (corrected).doc 19 “23. All the petitioners have availed the power supply after 31.3.1995. This Hon’ble Court has conclusively held in the case of G.R.Ispat Ltd that all the petitioners are entitled for the benefit of the said rebate under the notification dated 1.8.1996. 24. I say that the 25% rebate benefit under the notification dated 30.9.1991 was on the power tariff as chargeable by the Government notification of 1988. The benefit of 25% rebate under the notification dated 1.8.1996 was as per the prevailing rates. It is pertinent to note that the petitioners have been given power rebate of 25% on the prevailing rate of power supply and as provided for by the notification of 1996. 25. The petitioners are now trying to contend that they were actually not entitled for the rebate of 25% on the prevailing rate but that they were entitled for the rebate by considering the power rates as provided under the notification of 1988. This obviously is an attempt to make out a case that the petitioners were entitled for the power rebate under the notification of 1991. The petitioners cannot be permitted to approbate and reprobate having received the benefit in terms of the notification of 1996. The petitioners cannot now turn around and contend that the same was erroneously received by them just in order to defeat the claim of the Government made under the impugned demand notices.” 16 For these reasons, it is submitted that there is no merit in the writ petitions and they should be dismissed. The demand notices are legal and valid. wp157-11 (corrected).doc 20 17 Mr.Kantak, the learned Advocate General appearing on behalf of the respondents submitted that the petitioners claim is not covered by the notification of 1991. He invites our attention to affidavit in reply summarising the factual position under all notifications. He submits that the arguments of the petitioners is nothing but blowing hot and cold. The petitioners are misreading and mis-quoting the judgments of this Court. While it is true that the judgments of this Court in the writ petitions referred to by the petitioner uphold the claim of the petitioners therein but to a certain extent. In this behalf he invites our attention to the findings of the Division Bench of this Court in G.R.Ispat’s case and particularly paragraph 12, page 30 thereof. He also invites our attention to the compilation of the judgments and particularly paragraphs 31 to 34 and 39, 41 and 56 at pages 36,34 and 39 and submits that same principle will apply to the 1991 notification. 18 Mr.Kantak, learned Advocate General clarified that excluding the petitioners in Writ Petition No.241 of 1998 and Writ Petition No. 244 of 1998 all others have got power supply after 1st April 1995. wp157-11 (corrected).doc 21 Thus, none of the petitioners are beneficiaries of 30th September 1991 notification. In these circumstances, the Division Bench judgment of this Court in Writ Petition No.316 of 1998 would be applicable. The learned Advocate General invited our attention to paragraph 5 of the Division Bench judgment dated 24th April 2001 in Writ Petition No.277 of 1999 and Writ Petition No.364 of 1999 and submitted that the Division Bench has in this very judgment in paragraph 15 referred to its conclusion rendered and view taken in Writ Petition No.316 of 1998. The view taken by the same Division Bench is that notifications dated 15th May 1996 and 1st August 1996 cannot be termed as government decisions and they are void ab initio. These findings would come in the way of the petitioners before the Division Bench. Thus, in terms of the directions in paragraph 15 of this subsequent Division Bench judgment, it is submitted that the petitioners are entitled to the benefit of the September 1991 notification for the period from the date of supply of electricity till 31st March 1995. Therefore, they cannot raise any challenge to the demand notices. The demand notices are pursuant to a statutory enactment, the legality and validity of which wp157-11 (corrected).doc 22 has been upheld by the Hon’ble the Supreme Court. Once the statue empowers the respondents to recover past dues and when the petitioners have been wrongfully extended the benefit, then, the respondents have every right to recover the same. The recovery is in accordance with law. For all these reasons, it is submitted that there is no merit in these writ petitions and they deserve to be dismissed. 19 Mr.Sardesai, learned counsel appearing on behalf of the petitioners in rejoinder submitted that what the respondents are seeking to do is to unsettle the legal position. The legal position has been settled by the Division Bench judgment of this Court in the case of twelve writ petitioners which included the present petitioner. That judgment delivered way back in 1999 is binding on the respondents and particularly when challenge to the same in Supreme Court has failed. Mr.Sardesai submits that the petitioners may have been given the electricity connection subsequently but their claim is under a valid notification. They are entitled to the rebate for the period specified in the September 1991 notification. wp157-11 (corrected).doc 23 The subsequent notifications have no application and, therefore, this Court should not accept the stand of the respondents. The respondents are deliberately confusing the issues with a view to mislead this Court. For