THE HON’BLE MRS. JUSTICE T. MEENA KUMARI AND THE HON’BLE MR. JUSTICE G CHANDRAIAH WRIT PETITION No. 26945 of 2001 ORDER: (Per T. Meena Kumari, J) The present writ petition is filed by the petitioner company seeking to issue a writ of mandamus declaring the action of the 3rd respondent in disconnecting the power supply to H T Service No. RRD 615 of the petitioner company situate at plot Nos. D46 & 47, Phase V, I.D.A Jeedimetla Hyderabad, on 28-12-2001 at 9.50 AM is illegal and void and to direct the respondents 2 to 4 to restore the power supply to the petitioner company. The facts, in brief, as stated in the affidavit filed by the Managing Director of the petitioner company in support of the writ petition are as follows: It is stated that the petitioner established its’ firm as per the allotment made by the A.P. Industrial Infrastructure Corporation (AIIC) for allotment of plots to the petitioner for establishment of a ADPE/PP Woven Sack Industry at Jeedimetla, Hyderabad and the Government of India vide its letter dt. 23-12-1997 granted letter of intent in favour of the petitioner for setting up the industry and accordingly the petitioner entered into an agreement of sale dated 1-2-1998 with the APIIC and subsequently after taking possession of the plots, the petitioner has installed new machinery. It is further stated that petitioner submitted an application dated 5- 3-1998 to the AOSEB for sanction of power supply of 250 KVA and also on 10-3-1998 for the additional load of 200 KVA. On 12-3-1998 the APSEB sanctioned 250 KVA and on entering into an agreement the APSEB released the power 250 KVA on 20-3-1998 and that on 31- 3-1998 the APSEB approved the release of additional power supply of 200 KVA and on 30-4-1998 APSEB entered into afresh HT agreement with the petitioner for 450 KVA. It is also stated that the Government of Andhra Pradesh in G.O.Ms. No. 108, Industries and Commerce (IP) Department, dated 20-5-1996 announced a scheme giving various incentives for setting up of new industries in Andhra Pradesh and as per Para 6.04 large and medium industries are eligible for 25% rebate in power bills (both demand and energy) for a period of 3 years from the date of commencement of commercial production and the rebate shall be allowed by the A.PSEB in their monthly bills and the maximum total admissible rebate for the 3 years will be Rs.50.00 lakh and that the petitioner being a medium scale industry is eligible for the maximum rebate of Rs.50.00 lakh, that on 19-5-1998 the General Manager, District Industries Centre, Rangareddy District, gave eligibility certificate to the effect that the petitioner was eligible for 25% rebate in power upto a maximum of Rs 50.00 lakhs. The Superintending Engineer, however, by his letter dated 8-7-1998 informed that the petitioner was not eligible for 25% rebate on the ground that the industrial unit purchased from previous owner was not eligible for 25% rebate and even if there was change in the line of activity. It is also stated that challenging the said letter, petitioner filed WP No.22818 of 1998 and the same was allowed by this Court holding that the petitioner established a new industry and that the benefit of 25% rebate shall be adjusted in the future power bills of the petitioner in conformity with G.O.ms.No.108, dated 20-5-1996. It is also stated that after disposal of the above writ petition the APTRANSCO issued the bill for the month of August 2000 for Rs.5,54,674/- without making adjustment of the accrued rebate, for which the petitioner has informed the Board that it has paid a total sum of Rs.1,34,908-33 from the date of the commercial production i.e., 30-3-1998 and that it was entitled 25% rebate on the said sum, which works out to Rs.34,35,727.08 till July, 2000 and that it was entitled to a rebate of 25% on Rs.5,54,674/- i.e., Rs.1,38,669/- in the power bill dated 1-9-2000 for August 2000 and requested the Board to adjust the balance bill amount of Rs.4,16,005/- from the accumulated rebate and all future bills also may be adjusted from out of the said accumulated rebate amount, for which the petitioner was informed by the Superintending Engineer that writ appeal was filed and the petitioner should wait for the orders to be passed therein. It is also stated that the Board got issued a notice dated 18-9-2000 directing the petitioner to pay the August bill on threat of disconnection, for which a protest letter dated 25-9-2000 was sent by the petitioner. It is further stated that though writ appeal No. 1217/2000 was filed by the Board and the same was admitted, but no orders much less interim orders were passed in the appeal. It is also stated that after the judgment in the writ petition the petitioner has adjusted Rs.45,18,924-33 representing the rebate from the bills given from the period from August 2000 to April 2001 as the 3 year rebate period had ended on 30th March 2001 and that the petitioner has paid the balance amount of the bill for the month of April 2001 and for subsequent months from May 2001 to November 2001 in full. But the 3rd respondent sent a letter dated 4-6-2001 informing that as per his office record the eligibility comes to Rs.24,92,176/- and that the adjustments made by the petitioner up to 4/2001 comes to Rs.45,29,820-33 which is more than the eligibility and requested the petitioner to remit the difference pending finalization of the writ appeal and that the petitioner was informed that the service was released with a connected load of 250 KVA on 20-3-1998 that additional load of 200 KVA was released on 13-04-1998 making it a total of 450 KVA w.e.f. 14-4-1998 that as per APSEB Memo dated 16-8-1996 the calculation of 25% rebate on the demand and energy consumption of the service which has got additional load released during the rebate period have to be cone as per a separate formula, that as the petitioner come under the additional load released services group, the 25% rebate exhibited in the statement enclosed to the letter dated 4-6-2001 is arrived at as per the formula mentioned in the Board Memo and there the petitioner is liable to pay the amount of Rs.20,37,644.33 pending finalization of the writ appeal and that though the petitioner sent its reply on 27-9- 2001 denying the liability, the 3rd respondent by letter dt. 16-9-2001 directed the payment within 7 days and that pursuant to the said direction the service was disconnected on 28-12-2001 at 9.50 AM for non-payment of the excess rebate amount and that though the petitioner through its letter dated 28-12-2001 for restoration of power supply, the same was not considered by the Board. It is also submitted that the Board is estopped from taking the stand that the petitioner was not a new industry and even if it is a new industry, as the petitioner has purchased the Unit from an existing industry, it is not entitled for the rebate as the said stand was rejected by the High Court in earlier writ petition. Hence, the present writ petition. It is contended before this Court that in WP No. 22818 of 1998 the petitioner when questioned the action of the Board for not adjusting 25% rebate in the future power bills, the same was allowed by this court on 23-8-2000 that on 1-9-2000 the A.P. Trasnsco issued the bill for August 2000 without deducting the same from the accumulated rebate and the petitioner sent a letter dated 9-9-2000 to A.P. Transco for restoration of power connection, but on 18.9.2000 the respondent No.3 issued another letter directing the petitioner to pay August bill within 7 days. A letter was addressed by the petitioner to 3rd respondent requesting to withdraw the demand. Against the said orders passed by the learned single Judge in WP 22181 of 2000, AP Transco filed writ appeal No. 1217/2000 and the same is pending. While the matter stood thus, when the bills were raised without making any adjustment and afterwards a lot of correspondence has been taken place between the petitioner and the respondent Board and finally respondent No.3 issued a letter No. SE/OC/RRD/SAO/HT- III/onw 752 dated 22-06-2001 stating that the service was released with a connected load of 250 KV on 23.3.2000 and an additional load of 200 KVA was released on 13-4-1998 making it a total of 450 KVA with effect from 14-4-1998 and as per the Board memo No. CE(Commls) /P.O.2/25% rebate /604/96, dated 16-8-1996, the calculation of 25% rebate on the demand and energy consumption of the service which has got additional load released during the rebate period have to be done as per a separate formulae as your service comes under the additional load released services group the 25% rebate exhibited in the statement enclosed to this office letter dated 4- 6-2001 is arrived at as per the formulae in the Board’s memo aforementioned and the same is correct and you have paid less every month. Learned counsel for the petitioner has argued that as per the conditions laid down under 6.04 of G.O.Ms. No. 108, Industries & Commerce (IP) Department, dated 20-5-1996, the petitioner is entitled to 25% rebate on the power bills for a period of 3 years from the date of commencement of commercial production, but, contrary to the above directions the 3rd respondent issued letter dated 22-6-2001 demanding the power bills amount without calculating the rebate of 25%. Learned counsel has contended that consumption of energy would include both on the original load and additional load and they cannot be disintegrated to arrive at 25% and there is no material document available to support the contention of the respondent that they are entitled to calculate 25% on the energy consumption on original load only but not on the additional load and that the letter addressed by the Superintending Engineer on 22.6.2001 is without any basis, more so without any material. Per contra to the above statement, learned Standing Counsel for APTRANSCO has argued that they are entitled to claim 25% rebate on the demand and energy consumption charges which has got additional load released during rebate period and a calculation error has crept in as the petitioner has calculated on the basis of power bills whereas the respondents have calculated on the basis of the demand and energy consumption which has got additional load released. Heard on either side and perused the material available on record including the material annexed to the writ petition. We had an occasion to go through the letter addressed by the Superintending Engineer Operations, Ranga Reddy District, dt. 22-6-2001 wherein it was noted that the calculation of 25% rebate on the demand and energy consumption of the service which has got additional load released during the rebate period have to be done as per a separate formulae as your service comes under the additional load released services group the 25% rebate exhibited in the statement enclosed to this office letter dated 4-6-2001 is arrived at as per the formulae in the Board’s memo aforementioned and the same is correct and the petitioner has paid less every month. However, we have to observe that as per condition No.6.04 mentioned in G.O.Ms.No.181 dated 20-5-1996 the petitioner’s unit is eligible for 25% rebate both on demand and energy and a Division Bench of this court has confirmed the order passed by the learned single Judge in WA No. 1217 of 2000 wherein learned single Judge of this Court held that petitioner unit is entitled for 25% rebate in the power bills. In the absence of any material available on record to support the contention of the respondents Board that they are entitled to calculate 25% rebate on the basis of energy consumption which has got additional load we are not in agreement to accept the said contention as condition No.6.04 is very clear that all new industries, other than those listed in the Annexure and other than those set up in the Municipal Corporation areas of Hyderabad, Vijayawada and Visakhapatnam, will be eligible for 25% rebate in power bills (both demand and energy) for a period of 3 years from the date of commencement of commercial production. Therefore, in the absence of any other material available on record that 25% rebate has to be demanded on the energy consumption including the additional load, we are of the opinion that the argument of the learned standing counsel for the respondents that demand is perfectly valid basing on the consumption of energy is not acceptable. In the absence of any material available on record to support the contention that 25% rebate is available on energy consumption we are of the opinion that the guidelines issued under clause 6.04 of G.O.Ms No.108 Industries & Commerce (IP) Department, dated 20-5-1996 will only prevail and the order of the Superintending Engineer, Operations, R.R. Circle (3rd respondent) is liable to be set aside while making it clear that 25% has to be calculated on the power bills both demand and energy and the petitioner is entitled to claim 25% on the basis of power bills both demand and energy and not on the basis of load as arrived at by the respondents. Under the above circumstances, we deem it proper to remand the matter back to the 3rd respondent herein for calculating the 25% rebate on the basis of the power bills for a period of 3 years commencing from the date of manufacturing i.e., 1-4-1998 to 31-3- 2001 after affording an opportunity of hearing to the petitioner herein. With the above observations, the writ petition is allowed and remanded. No costs. ----------------------------------- JUSTICE T MEENA KUMARI 6/10/2009 --------------------------------- JUSTICE G CHANDRAIAH kvrk THE HON’BLE MRS. JUSTICE T. MEENA KUMARI AND THE HON’BLE MR. JUSTICE G CHANDRAIAH WRIT PETITION No. 26945 of 2001 (Order of the Division Bench, delivered by the Hon’ble Smt. Justice T Meena Kumari) 06th October 2009