Case: M/s. Shree Sidhbali Steels Ltd. &amp; Others Vs. State of U.P. &amp; Others

that the respondent No. 2 is bound to give 33.33% Hill Development Rebate and can never change the tariff rates to the detriment of the petitioners. On the facts and in the circumstances of the case, therefore, this Court holds that the respondent No. 2 is not bound to give 33.33% Hill Development Rebate to the petitioners for the period specified in the notification irrespective of change in the tariff rates. 21. Another question, which needs to be answered, is whether the Court of law would be justified in interfering with the policy decision of the Government either to grant or not to grant rebate to certain industrial units. From the record of the case, it is evident that before August 8, 2000, the U.P. State Electricity Board had power to frame/fix tariff under Section 49 of the Electricity (Supply) Act, 1948. However, thereafter tariff was determined and is being determined by U.P. Electricity Regulatory Commission under the provisions of U.P. Electricity Reforms Act, 1999. What is relevant to notice is that earlier the U.P. State Electricity Board had power to make/fix a tariff other than the uniform tariff contemplated under Section 49(3) of the Act of 1948 for the electricity to be supplied to its consumers having regard to the geographical position of any area. However, this power was not conferred on U.P. Electricity Regulatory Commission under the Act of U.P. Electricity Reforms Act, 1999. As the power to fix/prescribe the different rates of tariff in relation to geographical area is not provided and/or is not available under Section 24 of the Act of 1999, this Court is of the opinion that the Regulatory Commission could not have issued such differential tariff giving rebate to certain industries set up having particular geographical location. 22. Mr. Shanti Bhushan, learned counsel for the petitioners, argued that under Section 12 of the Act of 1999 the State Government was entitled to issue policy directions to the Regulatory Commission just as it had earlier power to issue policy directions to the U.P. State Electricity Board under Section 78 of the Act of 1948. It is true that the State Government has power to issue policy directions to the Commission under the new Act. Therefore, the next question which arises for consideration is whether such a policy direction in fact was given by the State Government to the Regulatory Commission and the answer is obviously No. There is no manner of doubt that the State Government could have issued direction regarding subsidy to be made available by the State Government to the licensee. However, on February 3, 2010, when the Special Leave Petition was listed for hearing before this Court, the Court had directed the learned counsel for the State of Uttarakhand to seek instructions from the Government whether the State Government was still willing to extend subsidy of development rebate of 33.33% to the industrial units set up in hill area, as was done by the erstwhile State Government of Uttar Pradesh. Accordingly, the learned counsel for the State of Uttarakhand had taken appropriate instructions and as mentioned earlier, filed a short affidavit on April 19, 2010 for consideration of the Court. In the said affidavit it is specifically mentioned that with an objective to accelerate the pace of industrial development in remote and backward hill region and to remove economic backwardness of the hill region by generating the employment opportunities with the possibility to check the brain drain from this area and keeping in view the uneven geographical situation, the environmental and social conditions, the Government of Uttarakhand has framed Special Integration Industrial Development Policy for hills and remote areas of Uttarakhand, but as far as power concession to new industrial units is concerned, the aforesaid policy does not provide for any concession to the steel industries established in the State because it was not considered necessary in the larger public interest to grant such subsidy. In the said affidavit it is mentioned that in view of lack of provision in the industrial development policy, the concession of Hill Development Rebate of 33.33% earlier granted by the Uttar Pradesh Government cannot be extended to the steel industries in the State of Uttarakhand. Whether to grant rebate to certain industrial units located in an area is basically and essentially a policy decision. The policy decision as reflected in the affidavit dated April 19, 2010 filed by Nitesh Kumar Jha, Additional Secretary, Government of Uttarakhand, Department of Energy, is neither found to be unreasonable nor found to be arbitrary in any manner. The Special Integration Policy introduced by the State of Uttarakhand for hills and remote areas of Uttarakhand is not subject-matter of challenge by the petitioners in the present writ petition. Grant of power concession to new industrial units is not found by the State Government to be in larger public interest. This Court, while exercising powers under Article 32 of the Constitution, cannot substitute the opinion and/or view of the Government and come to the conclusion that power concession to new steel industries is in the larger public interest and, therefore, should be made available to the new steel industries. Such a course is not permissible at all. The policy having not been found either arbitrary, capricious or unreasonable, this Court cannot interfere with the policy decision of the State Government. As observed earlier, there is nothing on record to show that any policy direction was given by the State of Uttarakhand to the Electricity Regulatory Commission to provide for rebate to industrial units situated in the hill area. The policy of the State Government in not granting rebate to industrial units situated in a particular area is basically a fiscal decision and in absence of arbitrariness of unreasonableness in the said policy, it cannot be a subject-matter of judicial review of this Court while exercising powers under Article 32 of the Constitution. Therefore, this Court holds that no case is made out by the petitioners to interfere with the said policy.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]From the principle enunciated in the above mentioned decision there is no manner of doubt that the rebate which was granted to the petitioners, was, by definition, a freedom from an obligation which the appellants otherwise were liable to discharge. The rebate was a privilege granting an advantage which was not made available to others. The rebate granted under Section 49 of the Electricity Supply Act of 1948 was, therefore, a concession granted by the State Government so that the beneficiaries of such concessions were not required to pay the electricity tariff, they were otherwise liable to pay under the said Act during the period of its grant. The petitioners, as recipients of concession, accepted to enjoy the benefits of the concession during the period of its grant. This right to enjoy was a defeasible one in the sense that it was liable to be taken away or withdrawn in exercise of the very power under which the exemption was grantedSo far as, merits of the matter is concerned, it is stated that the notification dated 07.08.2000 is neither illegal nor arbitrary nor discriminatory nor hit by the principle of promissory estoppel and the reliance placed upon the decision dated 25.05.2000 rendered by the High Court in Writ Petition No.3 of 1999 is misconceived as the same is subject matter of challenge in the pending SLPs. According to the reply, during the pendency of SLP filed by the respondent UP Power Corporation Limited, the UP Electricity Regulatory Commission framed a new tariff in exercise of statutory powers and directed the respondents to enforce the same and therefore the respondents to enforce the same and therefore the respondents who are bound to enforce the tariff, have enforced the same vide notification dated 07.08.2000. It is claimed that tariff revision made under the statutory powers has nothing to do with the interim order dated 28.07.2000 passed by this Court in the SLPs filed by the U.P. Power Corporation Limited and the High Court is wrong in allowing the Writ Petitions and directed that 33.33% rebate should be given to the petitioners, when the entire tariff is changed and total financial burden on the petitioners is less than 5% of tariff. After asserting that the Kotdwar is practically situated in plain area and very near to to Najibabad, it is stated that the claim of high cost advanced by the petitioners is not genuine. In the reply it is emphasized that the tariff was revised to minimize the theft of electricity which was prevalent amongst large and heavy consumers like petitioners and in fact rates enforced with effect from 18.06.1998 were more favourable to the petitioners but they were not satisfied with the said tariff and therefore had filed writ petition in the High Court from which the SLP No.6 of 2000 have arisen. Another affidavit dated 26.12.2000 is also filed by Mr. N.N. Srivastava clarifying certain aspects of the matter. In the additional reply, different provisions of U.P. Electricity Regulatory Commission Act and U.P. Electricity Reforms Act, 1999 are adverted to and it is claimed that in view of Section 7(a) of the Act, the tariff as framed by the U.P. State Electricity Board is applicable to the petitioners and they having undertaken to pay the electricity charges as per the rules/tariff determined by UP State Electricity Board from time to time, the petition is not maintainable. It is also asserted in the reply that when the Regulatory Commission has held that no development rebate is to be given to a consumer, the Corporation has no authority at all to grant any development rebate and, therefore, the petitioners are not entitled to the reliefs claimed in the petitionA company not being a citizen has no Fundamental Right under Article 19. When a law infringes the Fundamental Right of a company, a shareholder cannot normally apply under Article 32 for enforcement of companys Fundamental Right as in the eye of law two are distinct entities. A corporation in law is equal to a natural person and has legal entity of its own. The entity of a corporation is entirely separate from that of its shareholder applying the doctrine of piercing or lifting of veil and it cannot be said that the petition by corporation is a petition by the shareholder. It is important to mention that the petitioners are the companies registered under the provisions of the Companies Act, 1956. It is well settled that a company cannot maintain a petition under Article 32 of the Constitution for enforcement of Fundamental Rights guaranteed under Article 19 of the Constitution. A company, being not a citizen, has no Fundamental Rights under Article 19 of the Constitution. Nonetheless the companies would be entitled to claim right under Article 14 of the Constitution and, therefore, it would be relevant to examine whether the respondents have committed breach of Article 14 by withdrawing the concession in electricity rates given/granted earlierAs noticed earlier, the Civil Appeals arising out of SLPs filed by UP State Power Corporation were notified for hearing with the instant writ petition. It is difficult to fathom the reason, which promptedg of the writ petition when Civil Appeals were heard on merits. The petitioners could neither offer any plausible explanation nor could they point out the relevant circumstances which resulted into theg of the instant writ petition from the civil appeals. There is no manner of doubt that certain observations made in paragraphs 34 and 36 quoted above from the reported decision are against the present petitioners but the Court also held that all the benefits which were being given to entrepreneurs shall stand protected before coming into force of the Act of 1999 on the principle of promissory estoppel. Therefore, this Court will have to consider the question whether the reasoning adopted by the Division Bench for coming to the said conclusion is legal, though it was made clear to all the learned counsel for the parties that the instant Writ Petition cannot be treated as an appeal against the decision dated December 10, 2007 rendered by the two learned Judges of this Court in Civil Appeal Nos.11. In view of the observations made by the Division Bench of this Court in the reported decisions, the questions that fall for consideration of this larger Bench are whether a benefit given by a statutory notification can be withdrawn by the Government by another statutory notification and whether the principles of promissory estoppel would be applicable in a case where concessions/rebates given by a statutory notification are subsequently withdrawn by another statutory notification. It is an admitted position that the notification dated June 28, 1996, granting rebate to the industries set up in hill areas, was issued in exercise of powers conferred by Section 49 of Electricity (Supply) Act, 1948. By the said notification rebate in electricity charges to the extent of 33.33% was given to the industries, which were set up in the hill areas during the specified period. It is also an admitted position that thereafter, by notifications dated June 18, 1998 and January 25, 1999, issued in exercise of the powers conferred by Section 49 of the Act of 1948, the percentage of rebate granted by the earlier notification was reduced to 17%. However, by notification dated August 7, 2000 the benefit, which was granted to the industries set up in the hill areas regarding rebate in the electricity charges, was completely withdrawn. What is relevant to notice is that it is not in dispute that the notification dated August 7, 2000 withdrawing the benefits granted earlier, was issued in exercise of powers conferred by Section 24 of the Uttar Pradesh Electricity Reforms Act, 1999. The above mentioned fact makes it evident that the benefits, which were granted and/or curtailed in exercise of statutory powers, were subsequently withdrawn in exercise of another statutory power conferred by another statute, namely, Uttar Pradesh Electricity Reforms Act, 1999. In the light of above mentioned facts, the question whether principle of promissory estoppel would apply to exercise of statutory powers will have to be considered. The doctrine of promissory estoppel is by now well recongized and well defined by catena of decisions of this Court. Where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 229 of the Constitution. The rule of promissory estoppel being an equitable doctrine has to be moulded to suit the particular situation. It is not a hard and fast rule but an elastic one, the objective of which is to do justice between the parties and to extend an equitable treatment to them. This doctrine is a principle evolved by equity, to avoid injustice and though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. For application of doctrine of promissory estoppel the promisee must establish that he suffered in detriment or altered his position by reliance on the promise. Normally, the doctrine of promissory estoppel is being applied against the Government and defence based on executive necessity would not be accepted by the Court. However, if it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promisee and enforce the promise against the Government. Where public interest warrants, the principles of promissory estoppel cannot be invoked. Government can change the policy in public interest. However, it is well settled that taking cue from this doctrine, the authority cannot be compelled to do something which is not allowed by law or prohibited by law. There is no promissory estoppel against the settled proposition of law. Doctrine of promissory estoppel cannot be invoked for enforcement of a promise made contrary to law, because none can be compelled to act against the statute. Thus, the Government or public authority cannot be compelled to make a provision which is contrary of law. Having noticed salient features of the principle of promissory estoppel it would be relevant to refer to certain observations made by the two Judge Bench of this Court in U.P. Power Corporation Ltd. and another vs. Sant Steel and Alloys (P) Ltd. (supra). In the said decision the Court has observed in paragraph 33 of the reported decision as under:A critical analysis of the above quoted passage makes it evident that the two Judge Bench was of the view that notification issued under Section 49 of the Act of 1948 can be revoked/modified only if express provision was made for the revocation/modification of the said notification under Section 49 itself and the Court found that as there was no such provision contained in Section 49, it was not open to the Corporation to revoke the same. Further, though the Court made reference to General Clauses Act, it added that the provisions of General Clauses Act would be applicable in case of delegated legislation if withdrawal/curtailment of benefit was in larger public interest or if the legislation was enacted by the Legislature authorizing the Government to withdraw/curtail the benefit granted by a notification. Under the circumstances the two notifications curtailing the benefit to 17% were treated as contrary to Section 49 of the Act of 1948. On review of the law on the subject and the relevant statutory provisions, this Court finds that, for the reasons mentioned hereinafter, the above statement of law is not an accurate proposition of law14. There being nothing repugnant to raising of public revenue in exercise of sovereign power of State of impose and collect taxes including electricity duty, in any provision of the Act of 1948 or the policy statement made in the notification granting rebate, the raising of public revenue by withdrawing or reducing exemption, cannot be said to be against the provisions of any statute. It is relevant to notice that the new industrial units, which were being established in the hill areas, could not have compelled the Government to exercise power under Section 49 of the Act of 1948 in their favour, for grant of rebate/concession in electricity tariff. Powers under Section 49 normally would be exercised by the State Government for industrial growth of an area and to generate employment opportunities for those who are residing in the area. However, on change in the circumstances, the Government can always reconsider the matter and can either curtail or withdraw the benefit granted earlier. This Court finds that the proposition of law laid down by the two Judge Bench in the decision mentioned above is too wide and has tendency to make Section 21 of the General Clauses Act, 1897, inoperative. The concept of the larger public interest introduced, before invocation of Section 21 of the General Clauses Act, in fact, amounts to amendment of the said provision, as notifications dated June 18, 1998 and January 25, 1999, issued under Section 49 of the Act of 1948, as well as notification dated August 7, 2000, issued under Section 24 of the Uttar Pradesh Electricity Reforms Act, 1999, are in the nature of legislations and, therefore, the principle of promissory estoppel would not apply to themFrom the principle enunciated in the above mentioned decision there is no manner of doubt that the rebate which was granted to the petitioners, was, by definition, a freedom from an obligation which the appellants otherwise were liable to discharge. The rebate was a privilege granting an advantage which was not made available to others. The rebate granted under Section 49 of the Electricity Supply Act of 1948 was, therefore, a concession granted by the State Government so that the beneficiaries of such concessions were not required to pay the electricity tariff, they were otherwise liable to pay under the said Act during the period of its grant. The petitioners, as recipients of concession, accepted to enjoy the benefits of the concession during the period of its grant. This right to enjoy was a defeasible one in the sense that it was liable to be taken away or withdrawn in exercise of the very power under which the exemption was granted18. From the above discussion, it is clear that the petitioners cannot raise plea of estoppel against the notification dated August 7, 2000 reducing Hill Development Rebate to 0% as there can be no estoppel against the statute20. It is pertinent to notice that before starting the industrial units, the petitioners had entered into agreement units, the petitioners had entered into agreement with the then U.P. State Electricity Board. Clause 7 of this agreement provided that the rates/tariff fixed/revised by the supplier, i.e., the respondent No.2 from time to time, will be applicable to the petitionersThe petitioners being parties to the agreement now cannot turn around and argue that the respondent No. 2 is bound to give 33.33% Hill Development Rebate and can never change the tariff rates to the detriment of the petitioners. On the facts and in the circumstances of the case, therefore, this Court holds that the respondent No. 2 is not bound to give 33.33% Hill Development Rebate to the petitioners for the period specified in the notification irrespective of change in the tariff ratesFrom the record of the case, it is evident that before August 8, 2000, the U.P. State Electricity Board had power to frame/fix tariff under Section 49 of the Electricity (Supply) Act, 1948. However, thereafter tariff was determined and is being determined by U.P. Electricity Regulatory Commission under the provisions of U.P. Electricity Reforms Act, 1999. What is relevant to notice is that earlier the U.P. State Electricity Board had power to make/fix a tariff other than the uniform tariff contemplated under Section 49(3) of the Act of 1948 for the electricity to be supplied to its consumers having regard to the geographical position of any area. However, this power was not conferred on U.P. Electricity Regulatory Commission under the Act of U.P. Electricity Reforms Act, 1999. As the power to fix/prescribe the different rates of tariff in relation to geographical area is not provided and/or is not available under Section 24 of the Act of 1999, this Court is of the opinion that the Regulatory Commission could not have issued such differential tariff giving rebate to certain industries set up having particular geographical locationIt is true that the State Government has power to issue policy directions to the Commission under the new Act.