Chattisgarh High Court
M/S Indra Powergen Pvt. Limited vs State Of Chhattisgarh on 3 November, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 1864 of 2016
1. M/s Indra Powergen Pvt. Limited Through Its Director, Nayanpur,
Girwarganj Industrial Area, Village Keshav Nagar, Tehsil Surajpur, District
Surajpur, Chhattisgarh.
2. Jagjeet Singh Arora, S/o Ishwar Singh Arora, Aged About 67 Years
Director of Indra Power Gen. Pvt. Limited, Hotel Mid Town, M.G. Road,
Raipur, P. S. Moudhapara, Raipur, Chhattisgarh.
---- Petitioners
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh
2. State of Chhattisgarh, Through Its Secretary, Department of Industries,
Naya Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
3. The Chief Electrical Inspector, State of Chhattisgarh, Indrawati Bhawan,
Naya Raipur, Raipur, Chhattisgarh.
4. Chhattisgarh State Power Distribution Company Limited, Through Its
Executive Director (Commercial) 4th Floor, Vidyut Seva Bhawan,
Dangania, Raipur, Chhattisgarh.
5. Chhattisgarh State Renewable Energy Development Agency CREDA,
Through Its Managing Director, 2nd Floor, CSERC Building, Shanti Nagar,
Raipur, Chhattisgarh.
6. The Appellate Officer And Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
7. Chhattisgarh State Electricity Regulatory Commission, Through Its
Secretary, Having Its Regd. Office At Civil Lines, G.E. Road, Raipur,
Chhattisgarh 492001.
---- Respondents
WPC No. 448 of 2021
M/s Kalindi Power And Steel Limited A Duly Registered Company Under
The Indian Companies Act, 1956, Having Its Registered Office At 35-36,
First Floor Millennium Plaza, G.E. Road, Beside Coffee House, Raipur
Chhattisgarh. Through Its Authorized Representative, Mr. Sanjay Agrawal
S/o Late Shri Ramavtar Agrawal, Aged About 65 Years, R/o 9th South
Avenue, Chobey Colony, Raipur Chhattisgarh. P.S. Sarawati Nagar.
---- Petitioner
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy,
Mantralaya Mahanadi Bhawan, Naya Raipur Chhattisgarh.
2. State of Chhattisgarh Through Its Secretary, Department of Industries,
Mantralaya, Mahanadi Bhawan, Naya Raipur Chhattisgarh.
3. The Chief Electrical Inspector, State of Chhattisgarh, B Block 2nd Floor,
Inrawati Bhawan, Naya Raipur Atal Nagar, Chhattisgarh
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4. Chhattisgarh State Power Distribution Company Limited Through Its
Executive Director (Commercial), 4th Floor, Vidyut Sewa Bhawan,
Dangania, Raipur Chhattisgarh
5. Chhattisgarh State Renewable Energy Development Agency (Creda)
Through Its Managing Director, 2nd Floor, Cserc Building, Shanti Nagar,
Raipur Chhattisgarh
6. Chhattisgarh State Electricity Regulatory Commission Through Its
Secretary, Having Its Registered Office At Civil Lines, G.E. Road, Raipur
Chhattisgarh 492001
---- Respondents
WPC No. 1621 of 2016
1. Chhattisgarh Biomass Energy Developers Association Through Its
Secretary, C/o Shivalik Power And Steel Pvt. Ltd. C-33, 3rd Floor, Ashoka
Millennium, Ring Road No. 1, Raipur, P. S. Mowa, Raipur Chhattisgarh
2. Sudha Bio Power Pvt. Limited, Formerly Sudha Agro Oil And Chemical
Industries Ltd., Through The Authorized Signatory, Mohatarai, Bilaspur,
P.S. Koni, Bilaspur, Ratanpur Road, Bilaspur, Chhattisgarh.
3. Neeraj Power Pvt. Limited, Through Its Director 58, Gandhi Chowk, Post
Neora, District Raipur, P. S. Tilda Neora, Chhattisgarh.
4. Real Power Pvt. Limited, Formerly NRI Power Pvt. Limited Through Its
Authorized Signatory, Vrindawan, Civil Lines, Raipur, P.S. Civil Lines,
District Raipur, Chhattisgarh.
5. Rukmani Power And Steel Limited, Through Its Director, Agrawal
Gudakhu Factory Campus, Ganesh Nagar, Bilaspur, P.S. Tarbahar,
District Bilaspur, Chhattisgarh.
6. Balaji Power Pvt. Limited, Formerly Shivalik Power And Steel Pvt. Limited,
Through Its Authorized Signatory Plot No. 567-B, 568, Urla Industrial
Complex, Raipur, Chhattisgarh.
7. Agrawal Vidyut, Through Its Director, Kharora Road, Village Tulsi, Post
Neora, District Raipur Chhattisgarh
---- Petitioners
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
2. State of Chhattisgarh, Through Its Secretary, Department of Industries,
Naya Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
3. The Chief Electrical Inspector, State of Chhattisgarh, Indrawati Bhawan,
Naya Raipur, Raipur, Chhattisgarh
4. Chhattisgarh State Power Distribution Company Limited, Through Its
Executive Director (Commercial) 4th Floor, Vidyut Seva Bhawan,
Dangania, Raipur, Chhattisgarh.
5. Chhattisgarh State Renewable Energy Development Agency CREDA,
Through Its Managing Director, 2nd Floor, CSERC Building, Shanti Nagar,
Raipur, Chhattisgarh.
6. The Appellate Officer And Secretary, Department of Energy, Naya
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Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
7. Chhattisgarh State Electricity Regulatory Commission, Through Its
Secretary, Having Its Regd. Office At Civil Lines, G.E. Road, Raipur,
Chhattisgarh 492001.
---- Respondents
WPC No. 1677 of 2015
M/s R.R. Energy Limited A Company Duly Incorporated Under The
Provisions of The Companies Act, 1956, Through Its Director Shri Ashok
Agrawal, S/o Late Shri Jagmohan Das Agrawal, Aged About 48 Years,
Having Its Plant At Village And P. O. Garh Umaria, Orissa Road, P. S. Kotra
Road, Raigarh, District Raigarh, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy,
Mantralaya, Raipur, Chhattisgarh.
2. The Chief Electrical Inspector, State of Chhattisgarh, 36/437, 1st Floor,
Bairon Bazar, Raipur, Chhattisgarh
3. The Tehsildar, Tehsil Pusaur, District Raigarh, Chhattisgarh.
---- Respondents
WPC No. 1715 of 2016
M/s ISA Power Private Limited A Private Limited Company Having Its
Registered Office At Plot No 1071, Road No 44, Jubilee Hills, Hyderabad,
500033 And Site Office At village Banjare, Tahsil Kurud, Revenue And Civil
District Dhamtari, (C.G.) Through its authorised signatory Mr. P. Krishna
Rao Aged About 46 Years, S/o Shri P. Sanyasi Rao.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Department of Energy,
Mantralaya, Mahandi Bhawan, Naya Raipur Chhattisgarh.
2. State of Chhattisgarh Through The Secretary, Department of Industries,
Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh
3. Superintending Engineer And Chief Electrical Inspector Government of
Chhattisgarh B. Block, Second Floor, Indravati Bhawan, Naya Raipur,
Chhattisgarh
4. Chhattisgarh State Power Distribution Company Ltd. Through Its Chief
Executive Director (Commercial) 4th Floor Vidyut Sev Bhawan, Dangania,
Raipur Chhttisgarh
5. Chhattisgarh State Renewable Energy Development Agency C.R.E.D.A.,
Through Managing Director, 2nd Floor, CSERC Building, Shanti Nagar,
Raipur, Chhattisgarh
6. Chhattisgarh State Electricity Regulatory, Commission, Through Its
Secretary, Having Its Registered Office At Civil Lines, G.E. Road, Raipur
Chhattisgarh
---- Respondents
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WPC No. 1716 of 2016
M/s Ecofren Power And Projects Private Limited A Private Limited Company
Having Its Registered Office At Plot No 1071, Road No 44, Jubilee Hills,
Hyderabad, 500033 And Site Office At Chandkhuri Tehsil Revenue And Civil
District Durg Chhattisgarh Through Manager H.R. And IR and authorised
signatory Mr. P. Krishna Rao Aged About 46 Years, S/o Shri P. Sanyasi Rao
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Department of Energy,
Mantralaya, Mahandi Bhawan, Naya Raipur Chhattisgarh
2. State of Chhattisgarh Through The Secretary, Department of Industries,
Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh
3. Superintending Engineer And Chief Electrical Inspector Government of
Chhattisgarh B. Block, Second Floor, Indravati Bhawan, Naya Raipur,
Chhattisgarh
4. Chhattisgarh State Power Distribution Company Ltd. Through Its Chief
Executive Director (Commercial) 4th Floor Vidyut Sev Bhawan, Dangania,
Raipur Chhattisgarh
5. Chhattisgarh State Renewable Energy Development Agency C.R.E.D.A.,
Through Managing Director, 2nd Floor, C.S.E.R.C. Building, Shanti Nagar,
Raipur, Chhattisgarh
6. Chhattisgarh State Electricity Regulatory, Commission, Through Its
Secretary, Having Its Registered Office At Civil Lines, G.E. Road, Raipur
Chhattisgarh
7. Executive Engineer, E.S. And Divisional Electrical Inspector Government
of Chhattisgarh Rajnandgaon Division Office At Sahdev Nagar, Bhadauria
Chowk G.E. Road, Rajnandgaon Chhattisgarh
---- Respondents
WPC No. 1743 of 2016
1. Neeraj Power Pvt. Ltd. Through Its Director Sunil Kumar Agrawal, 58,
Gandhi Chowk, Post Neora, District Raipur, P.S. Tilda Neora,
Chhattisgarh
2. Sunil Kumar Agrawal, S/o Shri Prem Chand Agrawal, Aged About 37
Years Director And Shareholder of Neeraj Power Pvt. Limited, R/o H- 20,
Anupam Nagar, Raipur, District Raipur Chhattisgarh
---- Petitioners
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
2. State of Chhattisgarh, Through Its Secretary, Department of Industries,
Naya Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh
3. The Chief Electrical Inspector, State of Chhattisgarh, Indrawati Bhawan,
Naya Raipur, Raipur, Chhattisgarh
4. Chhattisgarh State Power Distribution Company Limited, Through Its
Executive Director (Commercial) 4th Floor, Vidyut Seva Bhawan,
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Dangania, Raipur, Chhattisgarh
5. Chhattisgarh State Renewable Energy Development Agency CREDA,
Through Its Managing Director, 2nd Floor, CSERC Building, Shanti Nagar,
Raipur, Chhattisgarh
6. The Appellate Officer And Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh
7. Chhattisgarh State Electricity Regulatory Commission, Through Its
Secretary, Having Its Regd. Office At Civil Lines, G.E. Road, Raipur,
Chhattisgarh 492001
---- Respondents
WPC No. 1745 of 2016
1. Real Power Pvt. Limited, Formerly NRI Power Pvt. Limited Through Its
Director, Vrindawan, Civil Lines, Raipur, P. S. Civil Lines, District Raipur,
Chhattisgarh
2. Shri Shesh Narayan Agrawal, S/o Shri Mohan Lal Agrawal, Aged About 34
Years, Director And Shareholder of Real Power Pvt. Limited, R/o Anita
Book Depo Kaiyastha Para, Purani Basti, Raipur, District Raipur,
Chhattisgarh
---- Petitioners
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
2. State of Chhattisgarh, Through Its Secretary, Department of Industries,
Naya Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
3. The Chief Electrical Inspector, State of Chhattisgarh, Indrawati Bhawan,
Naya Raipur, Raipur, Chhattisgarh
4. Chhattisgarh State Power Distribution Company Limited, Through Its
Executive Director (Commercial) 4th Floor, Vidyut Seva Bhawan,
Dangania, Raipur, Chhattisgarh
5. Chhattisgarh State Renewable Energy Development Agency CREDA,
Through Its Managing Director, 2nd Floor, CSERC Building, Shanti Nagar,
Raipur, Chhattisgarh.
6. The Appellate Officer And Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh
7. Chhattisgarh State Electricity Regulatory Commission, Through Its
Secretary, Having Its Regd. Office At Civil Lines, G.E. Road, Raipur,
Chhattisgarh 492001
---- Respondents
WPC No. 1773 of 2016
1. Rukmani Power And Steel Limited Through Its Director, Agrawal Gudakhu
Factory Campus, Ganesh Nagar, Bilaspur, P.S. Tarbahar, District Bilaspur,
Chhattisgarh.
2. Bajrang Lal Agrawal, S/o Late Lakhi Ram Agrawal, Aged About 45 Years
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Director And Shareholder of Rukmani Power And Steel Limited, R/o
Ganesh Nagar, Bilaspur, P. S. Tarbahar, District Bilaspur, Chhattisgarh
---- Petitioners
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh
2. State of Chhattisgarh, Through Its Secretary, Department of Industries,
Naya Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
3. The Chief Electrical Inspector, State of Chhattisgarh, Indrawati Bhawan,
Naya Raipur, Raipur, Chhattisgarh.
4. Chhattisgarh State Power Distribution Company Limited, Through Its
Executive Director (Commercial) 4th Floor, Vidyut Seva Bhawan,
Dangania, Raipur, Chhattisgarh.
5. Chhattisgarh State Renewable Energy Development Agency CREDA,
Through Its Managing Director, 2nd Floor, CSERC Building, Shanti Nagar,
Raipur, Chhattisgarh
6. The Appellate Officer And Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
7. Chhattisgarh State Electricity Regulatory Commission, Through Its
Secretary, Having Its Regd. Office At Civil Lines, G. E. Road, Raipur,
Chhattisgarh 492001
---- Respondents
WPC No. 1775 of 2016
1. Balaji Power A Unit of Hira Ferro Alloys Limited Through Its Director, Plot
No. 567- B, 568, Urla Industrial Complex, Raipur, Chhattisgarh.
2. Shri Y. C. Rao, S/o Late Y. Mandali, Aged About 49 Years Director And
Shareholder of Balaji Power, R/o Green Orchid, Mowa, Raipur
Chhattisgarh.
---- Petitioners
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh
2. State of Chhattisgarh, Through Its Secretary, Department of Industries,
Naya Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
3. The Chief Electrical Inspector, State of Chhattisgarh, Indrawati Bhawan,
Naya Raipur, Raipur, Chhattisgarh.
4. Chhattisgarh State Power Distribution Company Limited, Through Its
Executive Director (Commercial) 4th Floor, Vidyut Seva Bhawan,
Dangania, Raipur, Chhattisgarh.
5. Chhattisgarh State Renewable Energy Development Agency CREDA,
Through Its Managing Director, 2nd Floor, CSERC Building, Shanti Nagar,
Raipur, Chhattisgarh.
6. The Appellate Officer And Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
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7. Chhattisgarh State Electricity Regulatory Commission, Through Its
Secretary, Having Its Regd. Office At Civil Lines, G. E. Road, Raipur,
Chhattisgarh 492001
---- Respondents
WPC No. 1776 of 2016
1. Agrawal Viduyt, A Division of Agrawal Oil Extraction Limited, Through Its
Director, Kharora Road, Village Tusli, Post Neora, District Raipur, P.S.
Tilda Neora, Chhattisgarh
2. Amit Agrawal, S/o Shri Om Prakash Agrawal, Aged About 39 Years
Director And Shareholder of Agrawal Vidyut, R/o J. B. Bhawan, Gandhi
Chowk, Post Neora, District Raipur, Chhattisgarh
---- Petitioners
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh
2. State of Chhattisgarh, Through Its Secretary, Department of Industries,
Naya Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
3. The Chief Electrical Inspector, State of Chhattisgarh, Indrawati Bhawan,
Naya Raipur, Raipur, Chhattisgarh.
4. Chhattisgarh State Power Distribution Company Limited, Through Its
Executive Director (Commercial) 4th Floor, Vidyut Seva Bhawan,
Dangania, Raipur, Chhattisgarh.
5. Chhattisgarh State Renewable Energy Development Agency CREDA,
Through Its Managing Director, 2nd Floor, CSERC Building, Shanti Nagar,
Raipur, Chhattisgarh.
6. The Appellate Officer And Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh.
7. Chhattisgarh State Electricity Regulatory Commission, Through Its
Secretary, Having Its Regd. Office At Civil Lines, G.E. Road, Raipur,
Chhattisgarh 492001
---- Respondents
WPC No. 1829 of 2016
1. M/s Shri Shyam Ware Housing And Power Pvt. Ltd. Through Its Director
Village Banari Naila District Janjgir Champa Chhattisgarh
2. Ramesh Kumar Agrawal S/o Late Hariram Agrawal, Aged About 53 Years
Director of Shri Shyam Ware Housing And Power Pvt. Ltd. Village Banari
Naila, District Janjgir Champa, Chhattisgarh
---- Petitioners
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur Chhattisgarh
2. State of Chhattisgarh. Through Its Secretary, Department of Industries,
Naya Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur Chhattisgarh
3. The Chief Electrical Inspector, State of Chhattisgarh Indrawati Bhawan,
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Naya Raipur Raipur Chhattisgarh
4. Chhattisgarh State Power Distribution Company Limited, Through Its
Executive Director (Commercial) 4th Floor Vidyut Sev Bhawan, Dangania,
Raipur Chhattisgarh
5. Chhattisgarh State Renewable Energy Development Agency Creda
Through Its Managing Director, 2nd Floor, CSERC Building, Shanti Nagar,
Raipur Chhattisgarh,
6. The Appellate Officer And Secretary, Department of Energy, Naya
Mantralaya, Mahanadi Bhawan Naya Raipur, Raipur Chhattisgarh
7. Chhattisgarh State Electricity Regulatory Commission, Through Its
Secretary, Having Its Regd. Office At Civil Lines, G.E. Road, Raipur,
Chhattisgarh 492001
---- Respondents
WPC No. 2632 of 2016
M/s K.V.K. Bio Energy Private Limited A Company Duly Incorporated Under
The Provisions of The Companies Act 1956, Having Its Registered Office At
6-3-110/A-1 3rd Floor, Navbharat Chambers, Raj Bhawan Road,
Somajiguda, Hyderabad, Telengana And Having Its Plant At N.H. 49, Village
Amartal, Post Tilai, Distirct Janjgir Champa, Chhattisgarh, Through Its
Authorized Signatory Shri Sai Ram Tata.
---- Petitioner
Versus
1. State of Chhattisgarh Through Its Secretary Department of Energy, Naya
Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur Chhattisgarh
2. State of Chhattisgarh Through Its Secretary, Department of Industries,
Naya Mantralaya Mahanadi Bhawan, Naya Raipur, Raipur Chhattisgarh
3. The Chief Electrical Inspector, State of Chhattisgarh Indrawati Bhawan,
Naya Raipur, Raipur Chhattisgarh
4. Chhattisgarh State Power Distribution Company Limited, Through Its
Executive Director (Commercial) 4th Floor, Vidyut Seva Bhawan,
Dangania, Raipur Chhattisgarh
---- Respondents
WPC No. 3685 of 2021
M/s Jagdamba Power And Alloy Limited A Company Duly Incorporated
Under The Provisions of The Companies Act, 1956, Through Its Director Shri
Arun Poddar, S/o Late Shri Hariram Poddar, Aged About 52 Years, Having Its
Registered Office At G-16, Hira Arcade, Pandri, Raipur, P.S. Civil Lines,
Raipur, District Raipur Chhattisgarh
---- Petitioner
Versus
1. State of Chhattisgarh Through Its Secretary, Department of Energy,
Mahanadi Bhawan, Atal Nagar, District Raipur Chhattisgarh
2. The Chief Electrical Inspector, State of Chhattisgarh, B Block, 2nd Floor,
Indrawati Bhawan, Atal Nagar, Naya Raipur, District Raipur Chhattisgarh
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3. The Director, Directorate of Industry, Udyog Bhavan, Ring Road, Amlidih,
Raipur, Chhattisgarh
4. State of Chhattisgarh Through Its Secretary, Department of Industries,
Mahanadi Bhavan, Atal Nagar, District Raipur Chhattisgarh
---- Respondents
(Cause Title taken from Case Information System)
For Petitioners : Mr. Amit S. Agrawal, senior counsel, Mr.
V.V.S.Moorthy, senior counsel, assisted by
Mr. Shantanu Kumar, Mr. Ankit Singhal,
Mr. Akhil Kumar Samantray, Mr. Abhijeet
Mishra
For Respondent - State of : Mr. Satish Chandra Verma, Advocate
Chhattisgarh General, assisted by Mr. Vikram Sharma
and Mr. Gagan Tiwari, Deputy
Government Advocates.
For Respondent - Chhattisgarh : Mr. Devershi Thakur and Mr. Anway
State Renewable Energy Tiwari, Advocates.
Development Agency
For Respondent - Chhattisgarh Mr. Anumeh Shrivastava, Advocate.
State Electricity Regulatory
Commission
For Respondent-CSPDCL : Mr. Apurv Goyal
Dates of Hearing : 12.09.2022, 14.09.02022 and 15.09.2022
Date of Judgment : 03.11.2022
Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. Deepak Kumar Tiwari, Judge
C A V Judgment
Per Arup Kumar Goswami, Chief Justice
In this batch of petitions, essentially, the notification dated
12.11.2014 issued under Section 3-B of the Chhattisgarh Electricity Duty
Act, 1949 (for short, the Act) is challenged and therefore, as submitted by
learned counsel for the parties, the writ petitions which have been listed
together, have been heard analogously and are being disposed of by this
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common order.
2. Mr. Amit S. Agrawal, learned senior counsel, appearing for the
petitioner in WPC No. 1621/2016 has made the lead argument. Mr.
V.V.S.Moorthy, learned senior counsel, assisted by Mr. Shantanu Kumar,
as well as Mr. Ankit Singhal, Mr. Akhil Kumar Samantray, Mr. Abhijeet
Mishra, learned counsel, appearing for the petitioners have endorsed the
submissions of Mr. Agrawal and they submit that for the purpose of
disposal of the writ petition, reference may be made to the pleadings in
WPC No. 1621/2016.
3. WPC No. 1621/2016 is filed by Chhattisgarh Biomass Energy
Developers Association, through its Secretary, as petitioner No. 1, and
Sudha Bio Power Pvt. Ltd. (formerly Sudha Agro Oil & Chemical Industries
Ltd.), Neeraj Power Pvt. Ltd., Real Power Pvt. Ltd., Rukmani Power &
Steel Ltd, Balaji Power Pvt. Ltd. (formerly known as Shivalik Power & Steel
Pvt. Ltd) and Agrawal Vidyut, as petitioners No. 2, 3, 4, 5, 6 and 7.
However, by an order dated 28.06.2016, the writ petition was treated to be
filed only by Sudha Bio Power Pvt. Ltd. and the other five writ petitioners
were directed to file separate and independent writ petitions.
4. Accordingly, Neeraj Power Pvt. Ltd., Real Power Pvt. Ltd., Rukmani
Power & Steel Ltd., Balaji Power Pvt. Ltd. And Agrawal Vidyut had also
filed independent writ petitions being WPC No. 1743/2016, 1745/2016,
1773/2016, 1775/2016 and 1776/2016, respectively.
5. Petitioner No. 1 is a registered association of which the petitioners
No. 2 to 7 are its members. The petitioners No. 2 to 7 are engaged in
business of generating power from bio-mass based power plants and have
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their plants at different places in the State of Chhattisgarh.
6. The case of the petitioners, as presented in the writ petition, is that
the State Government of Chhattisgarh had formulated and notified its first
industrial policy 2001-2006 by notification dated 03.12.2001, published in
the State Gazette dated 25.01.2002. Under the said Industrial Policy, total
exemption was granted to all new industries set up in the State, from
payment of electricity duty under the provisions of the Act, for a period of
15 years from the date of commencement of commercial production.
Subsequently, the State Government of Chhattisgarh framed industrial
policy 2004-2009. Apart from others, the industrial policy provides for total
exemption from payment of electricity duty.
7. It is stated that in view of the representation being made in
Industrial Policy 2004-2009 of the State, the members of the petitioner
association altered their position by acting on the said representation and
promise and made huge investment to set up and establish industries in
different places in the State of Chhattisgarh to generate power from non
conventional sources and started their production from 2006-2008. It is
also pleaded that notification dated 03.11.2005, 05.04.2006 and
09.07.2008 were issued to effectuate the commitment made in the
Industrial Policy.
8. However, the Chief Electrical Inspector (respondent No. 3) started
issuing demand notices to the members of the petitioner association for
payment of electricity duty on the electrical units sold by the petitioners to
the Chhattisgarh State Power Distribution Company Limited (for short, the
CSPDCL) on the ground that the companies are entitled to exemption from
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payment of electricity duty only on the electricity duty which is used for self
consumption and not on sale to the Electricity Board. Some members of
the petitioner association had preferred writ petitions and this Court had
directed the State Government and the Chief Electrical Inspector to decide
the claim of the petitioners for exemption from payment of electricity duty in
accordance with law and providing that until the claim of the petitioners is
decided, no coercive steps shall be taken to recover the electricity duty
under demand notice. It is stated that though representations were filed
before the Chief Electrical Inspector, the same are still pending
consideration.
9. it is pleaded that by the impugned notification dated 12.11.2014, the
respondent No.1, in exercise of its power conferred by Section 3-B of the
Act and in supersession of the earlier notifications with respect to
exemption from payment of electricity duty under the Industrial Policy
2004-2009, exempted the eligible new industries (except expansion
projects of existing industrial units) of various categories, from the date of
commercial production, from payment of electricity duty payable only on
the electrical units consumed for its own use for the specified period
indicated therein thereby illegally withdrawing the benefit that had vested in
favour of the petitioner and had continued to subsist by virtue of the
Industrial Policy and the notifications issued thereunder and thus, the
notification is violative of the doctrines of legitimate expectation and
promissory estoppel.
10. The petitioners had approached this Court earlier by filing WPC No.
363/2015 challenging the validity of the notification dated 12.11.2014 and
this Court, by an order dated 02.03.2015, disposed of the said writ petition
13
directing the writ petitioners to submit a representation. Pursuant thereto,
the petitioners submitted a representation dated 18.03.2015 followed by a
written submission on 08.12.2015. The representation was rejected by the
Secretary, Department of energy by order dated 30.04.2016 and it is in that
circumstance, the present writ petition came to be field.
11. It is submitted by Mr. Amit S. Agrawal, learned senior counsel, that
the petitioners in WPC No. 1621/2016, 1864/2016, 1677/2015, 1743/2016,
1745/2016, 1773/2016, 1775/2016, 1776/2016, 1829/2016, 2632/2016,
1715/2016, 1716/2016 and 448/2021 have been categorized as Special
Thrust Sector Industry and petitioner in WPC No. 3685/2021, as General
Industry and that they are in operation. They had commenced commercial
production w.e.f 01.08.2006, 19.09.2009, 13.01.2007, 01.11.2006,
26.12.2006, 12.12.2006, 23.12.2006, 17.08.2006, 27.03.2012, 18.01.2006,
27.09.2006, 13.09.2006 and 06.09.2007, respectively. Petitioner in WPC
No. 3685/2021 had commenced production on 26.03.2007. However, the
industrial units in WPC No. 1715/2016, 1716/2016 and 448/2021 had
closed down w.e.f. 10.04.2015, 13.04.2015 and March, 2015, respectively.
12. Mr. Agrawal submits that the representation made by the State in its
industrial policy for grant of exemption from payment of electricity duty is a
solemn commitment and as the petitioners had acted upon such
representation and altered their position, the impugned notification dated
12.11.2014 is violative of the doctrines of legitimate expectation and
promissory estoppel. Exemption from payment of electricity duty flowing
from Industrial Policy of 2004-2009 was given effect to by statutory
notifications on 03.11.2005, 05.04.2006, 09.07.2008 and 30.09.2013, all
effective from 01.11.2004, and therefore, exemption, at any rate, could not
14
have been withdrawn with retrospective effect from 01.11.2004 by the
impugned notification dated 12.11.2014.
13. It is further submitted that the impugned notification withdrawing
vested right of exemption from payment of electricity duty retrospectively is
ultra vires Section 3-B(b) of the Act as the statute does not authorize
withdrawal of exemption benefit with retrospective effect. It is also
submitted that the said notification is manifestly arbitrary. He has
contended that the impugned notification cannot be construed as a
clarificatory notification as is sought to be contended in the return of the
State so as to apply the notification retrospectively. It is submitted by him
that it is not a case that the notification is issued in public interest as the
impugned notification did not recite that the notification was issued in public
interest and as such, State cannot seek to improve its case. He has drawn
attention of the Court to paragraph 14 of the return of the State in this
connection to demonstrate that only because of the perception that the
petitioners are making profit, the impugned notification was issued with
retrospective effect. Mr. Agrawal has relied on the decisions of the Hon'ble
Supreme Court in Video Electronics (P) Ltd. v. State of Punjab , reported
in (1990) 3 SCC 87, Sable Waghire & Co. v. Union of India , reported in
(1975) 1 SCC 763, Indian Express Newspapers (Bombay) v. Union of
India, reported in (1985) 1 SCC 641, Shayara Bano v. Union of India ,
reported in (2017) 9 SCC 1, State of Jharkhand v. Brahmputra Metallics
Ltd. reported in (2020) SCC OnLine SC 968, Mahabir Vegetable Oils (P)
Ltd. v. State of Haryana , reported in (2006) 3 SCC 620, SVA Steel Re-
Rolling Mills Ltd. v. State of Kerala , reported in (2014) 4 SCC 186,
Director General of Foreign Trade v. M/s. Kanak Exports , reported in
15
(2016) 2 SCC 226, MRF Ltd. v. CST , reported in (2006) 8 SCC 702,
Pawan Alloys & Castings (P) Ltd. v. U.B. SEB, reported in (1997) 7 SCC
251 and State of U.P. v. Birla Corporation Ltd., reported in (2020) 20
SCC 320.
14. Abiding by the stand taken in the return and the additional return
filed on behalf of respondents No. 1 to 3 and 6, Mr. Verma submits that the
order dated 30.04.2016 passed by the Secretary, Government of
Chhattisgarh, Department of Energy, is a reasoned order, who opined that
the impugned notification was issued in public interest and that the
exemption is only available to such industries who are in actual need owing
to their special circumstances and that the exemption from payment of
electricity duty is available to such industries who utilized the electricity
produced by them for their own use, without making any commercial usage
of the electricity produced by the Captive Power Plants. It is submitted that
it was realized that the industrial units were making profits out of the
exemptions granted to them. The rational of granting any exemption is to
strengthen an industry in its nascent stage to enable it to survive initial
days of hardship by providing necessary financial support to the industry to
sustain itself till it reaches the stage when it can survive on its own profits.
When the petitioners have started earning profit, there is no justification to
continue to grant exemption. It is stated that grant and withdrawal of
exemption is a policy matter and Section 3(B)(b) of the Act enables levy of
electricity duty upon cancellation of exemption and therefore, invocation of
principles of promissory estoppel and legitimate expectation, is
misconceived. A conjoint reading of Section 3-B of the Act and Section 21
of the Chhattisgarh General Clauses Act, 1957 (for short, Act of 1957)
16
would demonstrate that power to add, amend, vary or rescind an order is
inherent in every enactment and therefore, the notification dated
12.11.2014 cannot be said to be illegal or vitiated. It was concluded by the
Government that the policy decision of granting of exemption was not in
public interest, and therefore, to correct the mistake in the earlier
notifications, the impugned notification was issued. Relying on the
additional return filed on behalf of the respondents No. 1 to 3 and 6, it is
submitted by him that the impugned notification is a clarificatory notification
and therefore, it has retrospective effect. The notification dated 12.11.2014
cannot be construed to be a notification withdrawing the exemption/
concession already granted with respect to selling of electricity. It is
submitted by Mr. Verma that it cannot be argued that the policy had been
withdrawn as exemption is still being granted for auxillary consumption. It is
submitted by Mr. Verma that if literal construction of the word 'total
exemption' used in the exemption notification is resorted to as pleaded by
the petitioners, it would lead to an absurd situation as non-electricity
producing new industrial units would avail benefit of electricity duty
exemption only at the time of self-consumption/use, whereas electricity
producing units would avail benefit of the electricity duty exemption not
only at the time of self consumption/use but also at the time of selling the
electricity, which is not the intention of the policy.
15. Mr. Verma further submits that the petitioners are covered both
under the definition of 'consumer' under Section 2(a) and 'producer' under
Section 2(d)(i) of the Act. Mr. Verma relies on the decisions of the Hon'ble
Supreme Court in Union of India & Another v. VVF Limited & Another,
reported in (2020) 20 SCC 57, State of Gujarat v. Arcelor Mittal Nippon
17
Steel Limited, reported in (2022) 6 SCC 459, Commissioner of Customs
(Import), Mumbai v. Dilip Kumar & Company and Others, reported in
(2018) 9 SCC 1 as well as in Pepsico India Holdings Private Limited v.
State of Kerala & Others, reported in (2009) 13 SCC 55.
16. We have considered the submissions of the learned counsel for the
parties and have perused the materials on record.
17. Industrial Policy 2004-2009 was unveiled with an object to promote
private sector participation, for creation of industrial infrastructure, to create
additional employment opportunities by accelerating the process of
industrialisation in the State, to create enabling environment for ensuring
maximum value addition to the abundant, locally available mineral and
forest based resources, to promote private sector participation for creation
of industrial infrastructure in the State and to increase industrial production.
18. The policy classified industries into three categories, namely,
negative list industries, special thrust industries and general industries. The
industries for power generation from non-conventional sources were
classified as a special thrust industries. Sub-clause (ii) of Clause 4.4.5 of
the Industrial Policy provides that industries would be entitled to additional
directed incentives. Clause B of point 3 of the Industrial Policy provides
total exemption for a period of 15 years for special thrust industries from
the date of commencement of commercial production for medium large
industries. Relevant portions of Industrial Policy are extracted herein
below:
"4.4.6. Directed incentives provided in this policy will be available
to the following industrial undertakings:
18
(i) New Industrial projects - All such industrial units, which
commence commercial production between 1 st November 2004 to
31st October, 2009.
4.4.7. Investors belonging to different categories setting small
scale, medium-large and mega industrial projects in different
areas of the State will be entitled to directed incentives given in
Annexure-4.
4.4.12 The investors, who had taken effective steps for setting
up their industrial units prior to 1 st November 2004, but commercial
production had not commenced up to the appointed day, will have
the option to avail of the benefit of the package of exemptions/
concessions provided for in the Industrial Policy 2001-2006.
19. Point 3 of Annexure A-4 provides Electricity Duty exemption only to the
new industries. The petitioners come under Medium-Large industry. Point 3
reads as follows:
"3. Electricity Duty Exemption
Exemption from payment of electricity duty will be given only to the
new industries as per the details given below. Expansion projects
of the existing industrial units will not be eligible for exemption
from electricity duty.
A. Small Industry
Region General Industry Special Thrust
Industry
Category A - 1. Total exemption for a Total exemption for
General Area period of 10 years from a period of 15 years
the date of from the date of
19
commencement of commencement of
commercial production. commercial
2. Exemption for 15 production.
years to the industrial
set-up by the scheduled
caste/ tribe category.
Category B- Most Total exemption for a Total exemption for
Backward period of 15 years from a period of 15 years
Scheduled Tribe the date of from the date of
dominant areas commencement of commercial
commercial production. production.
B. Medium - Large Industry
Region General Industry Special Thrust Industry
Category A - Total exemption for a Total exemption for a
General area period of 10 years period of 15 years from
from the date of the date of
commencement of commencement of
commercial commercial production.
production.
Category B - Total exemption for a Total exemption for a
Most backward period of 15 years period of 15 years from
scheduled tribe from the date of the date of
dominant areas commencement of commencement of
commercial commercial production.
production.
C. Mega Project
Region General Industry Special Thrust
Industry
Category A - Total exemption for a Total exemption for a
General Area period of 15 years from the period of 15 years
date of commencement of from the date of
commercial production. commencement of
commercial
production.
Category B- Total exemption for a Total exemption for a
Most Backward period of 15 years from the period of 15 years
Scheduled Tribe date of commencement of from the date of
dominant areas commercial production. commercial
production.
20. In terms of the policy, a notification dated 03.11.2005 was issued by
the Department of Energy, State of Chhattisgarh providing total exemption
20
from payment of electricity duty for a period of 15 years from the start of
commercial production in respect of new industrial units. The relevant
portion of the notification dated 03.11.2005 issued by the Government of
Chhattisgarh, Energy Department, reads as follows:
"Government of Chhattisgarh, Energy Department
Dau Kalyan Singh Bhawan, Mantralaya, Raipur,
Notification
Raipur, dated 03.11.2005
No. 3000/13/Ati/Adhisuchna/05: Because under the provisions of
Industrial Policy 2004-2009 the State Government is of the opinion
that it is necessary and justified to promote new industrial units in
the State.
Therefore, in exercise of powers conferred under the
provisions of Section 3(b) of Chhattisgarh Electricity Duty Act,
1949 (Act of 1949), the State Government has been pleased to
grant exemption in the payment of Electricity Duty for the specified
period from the date of starting of commercial production only to
the new industries to be established in the State as shown in the
below mentioned table:
A. SMALL INDUSTRY
Area General Industry Special Thrust Industry
Category A - 1. Total exemption upto 10 Total exemption upto 15
General Area years from the date years from the date
of commencement of of commencement of
commercial production. commercial production.
2. Total exemption up to
21
15 years for the
industries established by
the Scheduled Caste/
Scheduled Tribe category.
Category - B Total exemption up to 15 Total exemption upto 15
Most backward years from the date years from the date
Scheduled Tribe of commencement of of commencement of
Dominant Areas commercial production. commercial production.
B. MEDIUM-LARGE INDUSTRY
Area General Industry Special Thrust Industry
Category A - Total exemption upto 10 Total exemption upto 15
General Area years from the date years from the date
of commencement of of commencement of
commercial production. commercial production.
Category - B Total exemption upto 15 Total exemption upto 15
Most backward years from the date years from the date
Scheduled Tribe of commencement of of commencement of
Dominant Areas commercial production. commercial production.
The units having expansion schemes in the existing Industrial
Units shall not be eligible for any exemption/concessions/
relaxation in making payment of Electricity Duty.
.......
This notification shall be deemed to have come into effect from
01.11.2004.
By order and in the name of the
Governor of Chhattisgarh
Sd/-
Illegible
(P.K.Mishra)
Joint Secretary,
Government of Chhattisgarh,
Energy Department, Raipur"
21. Another notification dated 05.04.2006 was issued by the
Department of Energy, State of Chhattisgarh, under the Industrial Policy
2004-2009 for new industrial units which commenced production on or
after 01.11.2004, wherein also total exemption from payment of electricity
duty to special thrust industries and general industries from the date of
start of commercial production was provided. In the said notification, it was
laid down that the industries could take the benefit of notifications dated
21.06.2002, 25.06.2002 and 18.08.2003 under the Industrial Policy 2001-
2006 or could take the benefit of notifications under the Industrial Policy
2004-2009, provided the commercial production commenced after
01.11.2004. The relevant part of notification dated 05.04.2006 reads as
under:
"Government of Chhattisgarh
Energy Department
Mantralaya, Dau Kalyan Singh Bhawan, Raipur,
Raipur, dated 5th April, 2006
No. F-11-4-2006-13-1: Because under the provisions of Industrial
Policy 2004-2009 the State Government is of the opinion that it is
necessary and justified to promote new industrial units in the
State.
Therefore, in exercise of powers conferred under the
provisions of Section 3(c) of Chhattisgarh Electricity Duty Act,
1949 (Act of 1949), the State Government has been pleased to
grant exemption in the payment of Electricity Duty for the specific
period from the date of starting of commercial production only to
new industries to be established in the State except the industries
shown in the list in below mentioned tables:
A. SMALL INDUSTRY
Area General Industry Special Thrust Industry
Category Sub - 1. Total exemption upto Total exemption upto 15
General Area 10 years from the date of years from the date of
commencement of commencement of
commercial production. commercial production.
2. Total exemption upto
15 years for the
industries established by
the Scheduled Caste/
Scheduled Tribe
category.
Category - B Total exemption up to 15 Total exemption up to
Most backward years from the date 15 years from the date
Scheduled Tribe of commencement of of commencement of
Dominant Areas commercial production. commercial production.
B. MEDIUM-LARGE INDUSTRY
Area General Industry Special Thrust Industry
Category A - Total exemption up to 10 Total exemption up to
General Area years from the date 15 years from the date
of commencement of of commencement of
commercial production. commercial production.
Category - B Total exemption up to 15 Total exemption up to
Most backward years from the date 15 years from the date
Scheduled Tribe of commencement of of commencement of
Dominant Areas commercial production. commercial production.
C. MEGA PROJECTS - VERY LARGE INDUSTRY
Area General Industry Special Thrust Industry
Category A- Total exemption up to 10 Total exemption up to
General Area years from the date 15 years from the
of commencement of date of commercial
commercial production. production.
Most backward Total exemption up to 15 Total exemption up to
Scheduled Tribe years from the date 15 years from the
Dominant Areas of commencement of date of commercial
commercial production. production.
The expansion schemes of existing Industrial Units shall not
be eligible for any exemption in Electricity Duty.
......
This notification shall be deemed to have come into effect from
01.11.2001. This notification is being issued replacing the
Notification No. 300713/Ashi/Adhisuchna/2003, dated 3 rd
November, 2005 which will remain effective in place of the said
Notification.
By order and in the name of the
Governor of Chhattisgarh
Sd/-
Illegible
(B.K.Mishra)
Joint Secretary"
22. Another notification was issued on 09.07.2008 pursuant to the said
industrial policy and in exercise of power under Section 3(B) of the of the
Act, whereby the State Government granted total exemption from payment
of electricity duty from the date of commencement of commercial
production for a period of 15 years giving retrospective effect from
01.11.2004. The notification reads as under:
"Energy Department
Mantralaya, Dau Kalyan Singh Bhawan, Raipur,
Raipur, Dated 9th July 2008
No. 1416/13/2/E.D./Notification/08:- Since under the provisions of
Industrial Policy 2004-2009 the State Government is of the opinion that it
is necessary and justified to promote new industrial units in the State.
Therefore, in accordance to earlier Notification No. 3000/13/U.V./
Adhisuchna dated 03.11.2005, in exercise of powers conferred under the
provisions of Section 3(b) of the Chhattisgarh Electricity Duty Act, 1949
(Act 1949), the State Government has been pleased to grant the
exemption in the payment of Electricity Duty for the specified period from
the date of starting of commercial production only to the new industries to
be established in the State (except the units having schemes of
expansion of their existing units). The anomalies/deficiencies have been
found in the notification and the Industrial Policy 2004-2009 issued earlier,
therefore, for maintaining provisions of incentives of exemption in the
payment of Electricity Duty modification in Industrial Policy 2004-2009
and notification dated 03.11.2005 is necessary.
Therefore, by superseding the Notification No. 3000/13/U.V./
Adhisuchna/05, dated 03.11.2005 issued earlier, this notification is being
issued. Accordingly, the exemption in the payment of Electricity duty for
specific period is being granted to new units of various categories from
the date of starting their commercial production as shown in front of them
in the following tables:
A. SMALL INDUSTRY
Area General Industry Special Thrust Industry
Category A - General 1. Total exemption up to Total exemption up to
Area 10 years from the date 15 years from the date
of commencement of of commencement of
commercial production. commercial production.
2. Total exemption up
to 15 years for the
industries established by
the Scheduled Caste/
Scheduled Tribe category.
Category - B Most Total exemption up to 15 Total exemption up to
backward Scheduled years from the date 15 years from the date
Tribe Dominant Areas of commencement of of commencement of
commercial production. commercial production.
B. MEDIUM-LARGE INDUSTRY
Area General Industry Special Thrust Industry
Category A - General Total exemption up to 10 Total exemption up to
Area years from the date 15 years from the date
of commencement of of commencement of
commercial production. commercial production.
Category - B Most Total exemption up to 15 Total exemption up to
backward Scheduled years from the date 15 years from the date
Tribe Dominant Areas of commencement of of commencement of
commercial production. commercial production.
C. MEGA PROJECTS - LARGE INDUSTRY
Area General Industry Special Thrust Industry
Category A - General Total exemption up to 15 Total exemption up to
Area years from the date 15 years from the date
of commencement of of commencement of
commercial production. commercial production.
Category - B Most Total exemption up to 15 Total exemption up to
backward Scheduled years from the date 15 years from the date
Tribe Dominant Areas of commencement of of commencement of
commercial production. commercial production.
The units having expansion schemes in the existing industrial units
shall not be eligible for any exemption/concessions/relaxation in
Electricity Duty.
........
This notification shall be effective retrospectively w.e.f. 01.11.2004.
By order and in the name of the
Governor of Chhattisgarh
Sd/-
Illegible
(S.L.Adile)
Under Secretary,
Government of Chhattisgarh,
Energy Department, Raipur"
23. It is also relevant to extract the notification dated 30.09.2013. The
same reads as under:
"Government of Chhattisgarh
Energy Department
Mahanadi Bhawan, Mantralaya, Naya Raipur,
Notification
Raipur, dated 30.09.2013
No. F21/29/08/13/2/2013: The State Government is of the opinion
that some of the anomalies in the notification No. F-11-4-2008-13-1
dated 05.04.2008 have been found and superseding of notifications
issued earlier is not mentioned in the notification No.
1416/13/ED/Adhisuchna/08, dated 09.07.2008, and therefore, in
regard to granting benefit of relaxation / concession / exemption in
making payment of electricity duty there is position of
misunderstanding in regard to Industrial Policy 2004-2009, therefore,
for encouraging new industrial units by way of granting benefit of
relaxation / concession/ exemption in making payment of electricity
duty in the State under the provisions of industrial policy 2004-2009,
it is justified and necessary to issue this notification.
Therefore, in exercise of powers conferred under the provisions of
Section 3(b) of Chhattisgarh Electricity Duty Act, 1949 (Act 1949), for
avoiding the present misunderstanding, by superseding both the
aforesaid notifications alongwith all other notifications issued earlier,
the State government has been pleased to grant the exemption
/concession / relaxation in the payment of Electricity Duty for the
specific period from the date of starting of commercial production to
the eligible industries of various categories established in the State
(except the expansion schemes of existing units) as shown in the
below mentioned table:
A. SMALL INDUSTRY
Area General Industry Special Thrust Industry
Category A - 1. Up to 10 years Up to 15 years complete
General Area complete relaxation from relaxation from the date
the date of starting of starting commercial
commercial production. production.
2. Up to 15 years
relaxation for the
industries established by
the Scheduled Caste/
Scheduled Tribe category.
Category - B Up to 15 years complete Up to 15 years complete
Most backward relaxation from the date relaxation from the date
Scheduled Tribe of starting commercial of starting commercial
Dominant Areas production. production.
B. MEDIUM-LARGE INDUSTRY
Area General Industry Special Thrust Industry
Category A - Up to 10 years complete Up to 15 years complete
General Area relaxation from the date relaxation from the date
of starting commercial of starting commercial
production. production.
Category - B Up to 15 years complete Up to 15 years complete
Most backward relaxation from the date relaxation from the date
Scheduled Tribe of starting commercial of starting commercial
Dominant Areas production. production.
C. MEGA PROJECTS - LARGE INDUSTRY
Area General Industry Special Thrust Industry
Category A - Up to 15 years complete Up to 15 years complete
General Area relaxation from the date relaxation from the date
of starting commercial of starting commercial
production. production.
Category - B Up to 15 years complete Up to 15 years complete
Most backward relaxation from the date relaxation from the date
Scheduled of starting commercial of starting commercial
Tribe Dominant production. production.
Areas
Therefore, in accordance to above the exemption in making
payment of electricity duty shall be subject to the following terms
i.e.-
1. The only new industries / units completing provisions as
mentioned in para 4.4.6 of Industrial Policy 2004-2009 of the State
shall be eligible for the benefit of exemptions/ concessions/
relaxation in making payment of Electricity Duty.
2. The industries included in the list of ineligible List as mentioned in
Appendix 2 of Industrial Policy 2004-2009 of the State shall not be
eligible for the benefit of exemptions/concessions/relaxation in
making payment of Electricity Duty.
3. In accordance to Part 3 of Appendix 4 of Industrial Policy 2004-
2009 of State, the industries shall not be eligible for the benefit of
exemptions / concessions/ relaxation in making payment of
Electricity Duty for the expansion scheme of their Industry/Unit.
4. Those industries who under the provisions as mentioned in para
4.4.12 of Industrial Policy 2004-2009 might had taken prescribed
effective steps for establishing of industry established prior to
01.11.2004.
(1) The physical and legally possession of land for the industry
might have been taken over.
(2) The construction of shed/building might have been started
in accordance to project report, and
(3) Confirm purchase order for purchasing of plant and
machinery in accordance to project report might have been
issued, but the commercial production might have not been
started on prescribed date, they will be having options to avail
the benefit of packages of relaxation/concession/exemption as
provided in Industrial Policy 2001-2006 shall be available for
them.
5. Such industries/investors in whose case the certificate for getting
the benefit of relaxation/concession/exemptions in the payment of
Electricity Duty has been issued in accordance to Industrial Policy
2001-2006 by the Chief Electrical Inspector, will not be eligible for
getting the benefit of relaxation / concession / exemptions in the
payment of Electricity Duty under the provisions of Industrial Policy
2004-2009, however, in accordance to certified issued earlier the
benefit of relaxation/concession/exemptions in the payment of
Electricity Duty shown in the aforesaid certificate for the prescribed
period will remain as it is.
6. The eligibility for getting the benefits of exemption / concession /
relaxation in making payment of Electricity Duty subject to the
terms/provisions of Industrial Policy 2004-209 shall be determined
by the Industries Department, for which the applicant/industry has
to produce application mentioning therein that all the provisions
mentioned in the Industrial Policy 2004-2009 have been satisfied in
the office of Chief Electrical Inspector. Accordingly, after considering
application, the eligibility certificate for granting of benefit of
exemption / concession / relaxation in making payment of Electricity
Duty for the prescribed period as per provisions of Industrial Policy
shall be issued.
7. In accordance to provisions of Industrial Policy the industries /
investors for getting the benefit of relaxation / concession /
exemptions the industry/investor shall be responsible to satisfy the
provisions of providing employment to the people of local area, for
which the industry/investor has to produce the certificate issued by
the concerned District Collector necessarily.
8. In the event of being found violation of any of the terms as
defined in the Industrial Policy, the eligibility of relaxation/
concession/ exemptions in the payment of electricity duty of such
industry / investor shall be cancelled automatically and the amount
availed towards relaxation / concession/ exemptions by the
industry/investor shall be recovered as per prevailing land revenue
recovery provisions.
9. The decision of Energy Department in regard to eligibility of
relaxation / concession / exemptions in the payment of Electricity
Duty shall be final.
The provisions of this notification shall be effective w.e.f 01.11.2004.
By order and in the name of Governor
of Chhattisgarh
Sd/- Illegible
(V. Anand Babu)
Special Secretary,
Government of Chhattisgarh,
Energy Department, Raipur"
24. It is also relevant to extract the impugned notification dated
12.11.2014. The same reads as under:
"Government of Chhattisgarh
Energy Department
Mantralaya, Mahanadi Bhawan, Naya Raipur
NOTIFICATION
Raipur, dated 12.11.2014
No. 2361/F-21/29/2008/13/2: Whereas, the State Government is
of the opinion that there are discrepancies in this department's
earlier notification number F-11-4-2006-13-1, dated 05.04.2006,
supersession of the said earlier notification was not mentioned in
the notification number 1416/13/ED/Notification/08, dated
09.07.2008 and notification number F21/29/08/13/2/201, dated
30.09.2013 issued in super session of the above two notifications
is also ambiguous and hence there is confusion with regard to
application of Electricity Duty Exemption as provided in Industrial
Policy 2004-2009 and it is necessary and expedient to supersede
earlier notification for the purpose of encouraging new industrial
units and to provide specified incentives for exemption in the
electricity duty in the State under Industrial Policy 2004-2009;
Now therefore, in exercise of the powers conferred by Section 3-B
of the Chhattisgarh Electricity Duty Act, 1949 (No. X of 1949) and
in super session of this department earlier notifications with
respect to exemption from payment of electricity duty under
Industrial Policy 2004-2009 and for the purpose of clarifying the
status of confusion in the provisions, the State Government,
hereby, exempts eligible new industries (except expansion
projects of existing industrial units) of various categories as
specified in the table mentioned below, from the date of
commencement of commercial production, from payment of
electricity duty payable only on the electrical units consumed for
its own use for the period indicated against them, namely:-
(emphasis supplied)
(A) Small Industry
Region General Industry Special Thrust Industry
Category A 1. Total exemption up to Total exemption up to 15
10 years from the date years from the date
General Area
of commencement of of commencement of
commercial production. commercial production.
2. Total exemption up to
15 years to the industries
set-up by the Scheduled
Castes/Tribes cadre.
Category B - Total exemption up to 15 Total exemption up to
Most Backward years from the date 15 years from the date
Scheduled of commencement of of commencement of
Tribes Dominant commercial production. commercial production.
Areas
(B) Medium Large Industry
Region General Industry Special Thrust Industry
Category A Total exemption up to Total exemption up to 15
10 years from the date years from the date
General Area
of commencement of of commencement of
commercial production. commercial production.
Category B - Total exemption up to Total exemption up to 15
Most Backward 15 years from the date years from the date
Scheduled of commencement of of commencement of
Tribes Dominant commercial production. commercial production.
Areas
(C) Mega Project
Region General Industry Special Thrust Industry
Category A Total exemption up to Total exemption up to 15
15 years from the date years from the date
General Area
of commencement of of commencement of
commercial production. commercial production.
Category B - Total exemption up to Total exemption up to 15
Most Backward 15 years from the date years from the date
Scheduled of commencement of of commencement of
Tribes Dominant commercial production. commercial production.
Areas
Above exemption from Electricity Duty shall be given under
the following conditions, namely:-
(1) Only those new industrial projects, who are complying with the
conditions stipulated in clause 4.4.6 of the Industrial Policy, 2004-
2009 of the State shall be entitled for exemption from payment of
Electricity Duty.
(2) Ineligible Industries (Negative list) included in Annexure-2 of
the Industrial Policy, 2004-2009 of the State, which is as per
enclosed Annexure-A, shall not be eligible for exemption from
payment of Electricity Duty.
(3) Expansion projects of existing industrial units shall not be
eligible for exemption from payment of Electricity Duty as
mentioned in Part-3 of Annexure-4 of the Industrial Policy, 2004-
2009 of the State.
(4) Those industries who have undertaken "effective steps" prior
to 01.11.04 under Clause 4.4.12 of the Industrial Policy, 2004-
2009 of the State, for establishment of industries i.e. -
(i) Unit has taken valid possession of land,
(ii) Unit has commenced construction of shed as per DPR, and
(iii) Unit has placed final purchase order for plant and machinery
as per Project Report but if the commercial production has not
commenced on the appointed day, then the units shall have the
option to avail concession/exemption provided in Industrial Policy
2001-2006.
(5) Such industry(ies)/investor(s), who have issued certificate by
the Chief Electrical Inspector for exemption from payment of
Electricity Duty as per Industrial Policy 2001-06 or as per the
previous notifications issued by the Energy Department, shall not
be eligible for exemption from payment of Electricity Duty under
Industrial Policy, 2004-2009 of the State as per this notification.
However, facility of exemption from payment of Electricity Duty as
per certificate issued earlier, shall remain as it is for the period
indicated in the said certificate.
(6) Department of Industries shall determine the eligibility of
exemption for industrial units, as per prescribed conditions of the
Industrial Policy, 2004-2009 of the State, for availing the facility of
exemption from payment of Electricity Duty. For this purpose
applicant industry has to submit an application in the office of
Chief Electrical Inspectorate alongwith certified certificate by the
Department of Industries in which it has been clearly stated that
industry is complying with all the provisions of the Industrial
Policy, 2004-2009 of the State. Thereafter, the Chief Electrical
Inspectorate shall after considering the Department of Industries'
recommended application, issue certificate for exemption from
payment of Electricity Duty for the period prescribed in the
Industrial Policy.
(7) It shall be the responsibility of the investor to comply the
provision relating to providing employment to the local resident in
the industrial unit as per the provisions of Industrial Policy and for
this purpose investor has to compulsorily produce certificate
issued by the Collector of concerned district.
(8) Eligibility of exemption shall end automatically on violation of
any of the conditions defined in the Industrial Policy and benefits
availed against the concession shall be recovered as arrears of
land revenue.
(9) Decision of Department of Energy regarding eligibility for
exemption from Electrical Duty shall be final.
This notification shall be deemed to have come into force with
retrospective effect from the date of 01.11.2004.
By order and in the name of the
Governor of Chhattisgarh
Sd/- Illegible
(B. Ananda Babu)
Secretary
Govt. of Chhattisgarh
Energy Department"
25. In Video Electronics (supra), the Hon'ble Supreme Court had
observed that a notification issued in accordance with the powers
conferred by the statute has a statutory force and validity and that the
power to grant exemption is quasi legislative. Therefore, it cannot be
disputed that issuance of exemption notification is exercise of legislative
power.
26. In Sable Waghire (supra), it was held that a notification issued under
provision of a statute is not an executive order but is a piece of
subordinate legislation. In Indian Express Newspapers (supra), it was
held that a piece of subordinate legislation does not carry the same degree
of immunity which is enjoyed by a statute passed by a competent
Legislature and that subordinate legislation may be questioned on any of
the grounds on which plenary legislation is questioned. In addition, it may
also be questioned on the ground that it does not conform to the statute
under which it is made or that it is contrary to some other statute as
subordinate legislation must yield to plenary legislation. It may also be
questioned on the ground that it is manifestly arbitrary.
27. In Shayara Bano (supra), the Hon'ble Supreme Court held that the
decision in State of A.P. v. McDowell & Co., reported in (1996) 3 SCC
709, wherein it was observed that there is an absolute bar to the use of
"arbitrariness" as a tool to strike down legislation under Article 14, is not a
good law and it was held that a subordinate legislation can be struck down
on the ground that it is arbitrary and therefore, violative of Article 14 of the
Constitution of India. Manifest arbitrariness is something done by the
legislature capriciously, irrationally and/or without adequate determining
principle or when something is done which is excessive and
disproportionate.
28. In Brahmputra Metallics Ltd. (supra), the Hon'ble Supreme Court
had given an expansive interpretation to the doctrine of promissory
estoppel in order to remedy the injustice being done to a party who has
relied on a promise.
29. In Mahabir Vegetable Oils (P) Ltd. (supra), it was held by the
Hon'ble Supreme Court that the doctrine of promissory estoppel operates
even in the legislative fields. It was also held that what is granted can be
withdrawn by the Government except in the case where the doctrine of
promissory estoppel applies and that promissory estopple operates on
equity and in public interest. It was also held that it is beyond any cavil that
a subordinate legislation can be given a retrospective effect and retroactive
operation, if any power in that behalf is contained in an Act. The rule
making power is a species of delegated legislation and therefore, a
delegatee therefore can make rules only within the four-corners thereof. It
was also observed that it is a fundamental rule of law that no statute shall
be construed to have a retrospective operation unless such a construction
appears very clearly in terms of the Act, or arises by necessary and distinct
implication.
30. In SVA Steel Re-Rolling Mills Ltd. (supra), the Hon'ble Supreme
Court laid down as follows:
"30. Before laying down any policy which would give benefits to its
subjects, the State must think about pros and cons of the policy
and its capacity to give the benefits. Without proper appreciation of
all the relevant factors, the State should not give any assurance,
not only because that would be in violation of the principles of
promissory estoppel but it would be unfair and immoral on the part
of the State not to act as per its promise.
31. In the instant case, the respondent State was conscious about
the fact that there was a problem with regard to supply of electricity
in the State of Kerala and possibly for that reason industries which
depended much upon electricity as a source of power were not
inclined to establish new industries in the State of Kerala. Before
setting up an industry, the entrepreneur or the industrialist
considers several factors and thereupon takes several decisions
like place of business, capacity at which production should be
made, type of raw material, etc. After considering all these factors,
a final decision is taken with regard to setting up of an industry. For
a new entrepreneur, such a decision is of vital importance because
if he fails in his estimates or in consideration of all the relevant
factors, there are all chances that he would fail not only in his
business but he would completely ruin himself. Thus, one can very
well appreciate that the appellants must have thought about all
relevant factors, including the incentives offered by the respondent
State and might have decided to set up their industries in the
respondent State. While deciding this case, this Court would
invariably keep in mind the circumstances in which the appellants
had set up their industries in the State of Kerala.
32. In view of the incentives and assurances given to the
appellants along with others, who were desirous of setting up new
industries, the appellants set up their new units which were much
dependent upon continuous supply of electricity. One of the
appellants is a Steel Re-rolling Mill. In steel industry, when the
industry is concerned with making of steel or re-rolling of steel, it
requires lot of power and energy, and electricity being one of the
important sources of power, the appellant was much dependent on
continuous supply of electricity, which had been assured to it by the
respondent State.
33. If an assurance was given to the appellants and similarly
situated persons that they would be given 100% electricity supply
for five years, the respondent cannot wriggle out of their liability by
making a policy to the effect that the benefit by way of incentive
would be extended only if the electricity supply was reduced to less
than 50% on a particular day. A steel industry, for example, which
cannot function without electricity or power in any other form, would
be put to enormous inconvenience and loss if the power supply is
not continuous. So as to reactivate or to restart the machines or to
start the process afresh, the industry has to spend something more
than what it would have spent if the supply or power, namely,
electricity was uninterrupted. Stoppage of manufacturing process
would mean losses under several heads. The labour employed has
to be paid even when the employer does not get work from the
labour force. Very often, so as to bring a required temperature for
the purpose of carrying on certain processes, more fuel is to be
injected so as to attain the condition which was prevailing prior to
electricity supply being disconnected. Moreover, there would be
several overhead expenses which one has to incur even if there is
no production or stoppage of manufacturing process."
31. The Hon'ble Supreme Court, in VVF Limited & Another (supra)
held that doctrine of promissory estoppel cannot be invoked in the abstract
and the Courts are bound to consider all aspects including the objective to
be achieved and public good at large. The doctrine cannot be pressed into
to compel the government or the public authority to carry out the
representation or promise which was contrary to law. The doctrine must
yield when the equity so demands if it can be shown having regard to the
facts and circumstances of the case that it would be inequitable to hold the
government or the competent authority to its promise, assurance or
representation. Even in a case where a party has acted on the promise, if
there is any supervening public interest which requires that the benefit be
withdrawn or the scheme be modified, that supervening public interest
would prevail over any promissory estoppel. It was also observed that a
clarificatory order can be given retrospective effect as it can throw light on
substantive provisions. It was further observed that the notification/
industrial policies impugned before the High Courts are clarificatory in
nature and it can be defined as an act to remove the doubts. It was further
held that it cannot be said that by the subsequent notifications/industrial
policies, the benefits which were accrued/granted under the earlier
notifications were sought to be taken away.
32. In Arcelor Mittal Nippon Steel Limited (supra), the Hon'ble
Supreme Court held that the doctrine of promissory estoppel is an
equitable remedy and has to be moulded depending on the facts of each
case and not straitjacketed into pigeon-holes. This was illustrated by
observing that there cannot be any hard and fast rule for applying the
doctrine of promissory estoppel but the doctrine has to evolve and expand
itself so as to do justice between the parties and ensure equity between the
parties.
33. In Pepsico India Holdings Private Limited (supra), the Hon'ble
Supreme Court had taken note of the judgment in the case of U.P. Power
Corporation Ltd. and Another v. Sant Steels & Alloys (P) Ltd. and
Others, reported in (2008) 2 SCC 777, wherein it was laid down that in
order to keep the faith and maintain good governance, it is necessary that
whatever representation is made by the Government or its instrumentality
which induces the other party to act, the Government should not be
permitted to withdraw from that as the same is a matter of faith which is
very important in the 21st Century when there is a global economy.
34. In MRF Ltd. (supra), the Hon'ble Supreme Court held that under
Section 10(1) of the Kerala General Sales Tax Act, 1963, the State
Government has the power to make an exemption or reduction in rate
either prospectively or retrospectively in respect of any tax payable under
that Act. The power of Government under Section 10(3) of the Act of 1963,
by notification in the Gazette to cancel or vary any notification issued
under Section 10(3) cannot be exercised retrospectively. It was further
held that the doctrine of promissory estoppels is applicable as against the
statutory notification.
35. In Birla Corporation Ltd., the Hon'ble Supreme Court held that
financial implications regarding future revenue loss cannot be invoked as
supervening public interest in reference to the activities of the industrial
units who qualify the conditions specified in notification dated 27.02.1998
in all other respects and had commenced commercial production before
the specified date. It was held that an enforceable right had accrued to and
crystalised in favour of such industrial units which could not be truncated
or snapped unless the dominant purpose for which the notification came to
be issued had ceased to exist. It was also observed that it can safely be
presumed that the policy makers were fully conscious about the so-called
loss of future revenue due to rebate granted to the units when they had
issued notification in question.
36. In M/s. Kanak Exports (supra), the Hon'ble Supreme Court held
that the Government has a right to amend, modify or even rescind a
particular scheme and that in complex economic matters, every decision is
necessarily empiric and it is based on experimentation and therefore its
validity cannot be tested on any rigid prior considerations or on the
application of any straight-jacket formula. The Hon'ble Supreme Court,
however, held that a delegated or subordinate legislation can only be
prospective and not retrospective, unless rule making authority has been
vested with power under a statute to make rules with retrospective effect.
On consideration of the factual matrix of the case, the Hon'ble Supreme
Court came to the conclusion that the writ petitioner/exporter had not
actually achieved the targets set down in the original scheme and thereby
had not acquired any "vested right" and there was only blatant misuse of
the provisions of the scheme and therefore, the impugned decision did not
take any vested right of the exporters and amendments were necessitated
by over-whelming public interest/considerations to prevent the misuse of
the scheme. It was in the background of the above circumstances, the
Hon'ble Supreme Court held that even when the impugned Notification
issued under the provisions of the Act could not be retrospective in nature,
such retrospectivity had not deprived the writ petitioners/exporters of their
right inasmuch as no right had accrued in favour of such persons under the
scheme. The Hon'ble Supreme Court emphatically laid down that in
exercise of writ jurisdiction, the High Court cannot come to the aid of such
petitioners/exporters who, without making actual exports, play with the
provisions of the scheme and try to take undue advantage thereof.
37. In Pawan Alloys & Castings (P) Ltd. (supra), the Hon'ble Supreme
Court observed that when no public interest was sought to be pressed in
service by the Board for withdrawal of the incentive rebate, and the same
was solely on the ground of commercial interest of the Board which had
earlier held out a promise of incentive rebate, the equity which had arisen
in favour of the appellants remained untouched and undisturbed by any
overwhelming and superior equity in favour of the Board entitling it to
withdraw the incentive rebate in a premature manner leaving the
promisees high and dry.
38. In Dilip Kumar & Company and Others (supra), the Constitution
Bench of the Hon'ble Supreme Court had examined the correctness of the
decision rendered in the case of Sun Export Corporation, Bombay v.
Collector of Customs, Bombay, reported in (1997) 6 SCC 564, on a
reference being made. The question that had arisen for consideration was
as to what is the interpretative rule to be applied while interpreting a
tax exemption provision/notification when there is an ambiguity as to its
applicability with reference to the entitlement of the assessee or the rate of
tax to be applied? In that context, the Hon'ble Supreme Court had
answered the reference holding that an exemption notification should be
interpreted strictly, and the burden of proving applicability would be on the
assessee to show that his case comes within the parameters of the
exemption clause or exemption notification. When there is ambiguity in
exemption notification which is subject to strict interpretation, the benefit of
such ambiguity cannot be claimed by the subject/assessee and it must be
interpreted in favour of the revenue. Holding thus, the decision in Sun
Export Corporation, Bombay (supra) was overruled.
39. In the notification dated 09.07.2008, it is mentioned that anomalies/
deficiencies have been found in the notification dated 03.11.2005 and the
Industrial Policy 2004-2009, and therefore, modification in the Industrial
Policy 2004-2009 and notification dated 03.11.2005 is necessary. The
notification dated 30.09.2013 recites that "some anomalies had been
found" in the notification dated 05.04.2008 and that apart, supersession of
the earlier notification issued is not mentioned in the notification dated
09.07.2008, and therefore, in the matter of grant of relaxation/exemption/
concession, there may be possibility of misunderstanding, as a result of
which issuance of the notification dated 30.09.2013 is necessitated. The
impugned notification dated 12.11.2014 purports to clear the confusion
with regard to the earlier notifications without even referring to in which
respects there may be confusion. A bald statement is made that
notification dated 30.09.2013 is ambiguous.
40. The notifications dated 03.11.2005, 09.07.2008 and 30.09.2013, as
noted earlier, were issued under the provisions of Section 3-B(b) (wrongly
referred as 3-B) of the Act. The notification dated 05.04.2006 recites that
the same was issued under Section 3(c) of the Act, though there is no
Section 3(c). In essence, the same is also issued under Section 3-B(b) of
the Act.
41. Section 3-B(b) of the Act reads as under:
"3-B. Power to exempt. - Where the State Government is of
opinion that,-
(i) in order to encourage the establishment of any particular
industry or class of industries in the State; or
(ii) having regard to the particular circumstances of any
industry or class of industries; or
(iii) in order to extend facilities to such persons or class of
persons and for such purpose as the State Government may,
by notification specify;
it is necessary or expedient so to do in public interest, it may, by
notification and subject to such conditions, if any, as it may
specify in the notification, -
(a) exempt from payment of duty in whole or in part -
(i) any distributor of electrical energy or producer in respect of the
electrical energy sold or supplied to such industry for the purpose
thereof,
(ii) where any producer or class of producers runs the industry, in
respect of the electrical energy consumed by such producer or
class of producers for the purpose of such industry;
(iii) any distributor of electrical energy or producer in respect of
the electrical energy sold to or used for consumption by person or
class of persons and for purposes specified in the notification;
(b) cancel any such notification and again subject, by a like
notification, the distributor of electrical energy or producer or
class of such producers to the payment of such duty in respect of
such sale, supply or consumption of electrical energy."
42. Though, number of exemption notifications, as noticed above, came
to be issued, grant of exemption of electricity duty up to 15 years from
the date of commencement of commercial production was consistently
maintained in all these notifications. Exemption from payment of electricity
duty was available irrespective of the fact as to whether electricity was for
self consumption/use or for the purpose of producing electricity and selling
the same.
43. The notification dated 12.11.2014 for the first time introduced that
exemption upto 15 years from the date of commencement of commercial
production from payment of electricity duty payable is relatable to only in
respect of electrical units consumed for its own use, that too, with
retrospective effect from 01.11.2004.
44. One aspect that has to be taken note of at this juncture is that it is
not the case presented on behalf of the State that electricity producing
units, at the time of selling the same, was realising electricity duty from the
buyers and thus, they had made undue gain and profit at the expense of
general public on the strength of exemption granted. The Distribution
Companies, in normal course, is to realise electricity duty from the
consumers. The State has also not indicated as to whether the Distribution
Companies, who, after purchasing electricity from the electricity producing
companies, while selling the same to its consumers, had charged
electricity duty or not. These aspects of the matter, which are very
relevant, had not been adverted to by the State.
45. Thus, the notification dated 12.11.2014 has curtailed/restricted
exemption granted towards payment of electricity duty only to the extent of
consumption for its own use. Prior to issuance of the said notification, the
eligible petitioners were granted exemption from payment of electricity duty
irrespective of the fact as to whether they had used electricity for its own
use or for generating electricity for the purpose of onward sale.
46. Section 3-B of the Act provides that where the State Government is
of the opinion that (i) in order to encourage the establishment of any
particular industry or class of industries in the State; or (ii) having regard to
the particular circumstances of any industry or class of industries; or (iii) in
order to extend facilities to such persons or class of persons and for such
purpose as the State Government may, by notification specify; it is
necessary or expedient so to do in public interest, it may, by notification
and subject to such conditions, if any, as it may specify in the notification, -
(a) exempt from payment of duty in whole or in part - (i) any distributor of
electrical energy or producer in respect of the electrical energy sold or
supplied to such industry for the purpose thereof, (ii) where any producer
or class of producers runs the industry, in respect of the electrical energy
consumed by such producer or class of producers for the purpose of such
industry; (iii) any distributor of electrical energy or producer in respect of
the electrical energy sold to or used for consumption by person or class of
persons and for purposes specified in the notification.
47. Section 3-B(b) of the Act provides for cancellation of any such
notification granting exemption and again subject, by a like notification, the
distributor of electrical energy or producer or class of such producers to
the payment of such duty in respect of such sale, supply or consumption of
electrical energy.
48. Section 3-B(b) of the Act, on a plain reading, does not authorise
cancellation of any such notification granting exemption benefit with
retrospective effect.
49. On the basis of the Industrial Policy 2004-2009, without making any
differentiation as to whether electricity is being used for its own use or for
the purpose of generating electricity for onward sale to Distribution
Companies and other entities, new industrial units were granted exemption
from payment of electricity duty. Admittedly, by the notification dated
12.11.2014, the concession/exemption from payment of electricity duty has
been done away with in respect of electricity sold by such new industrial
units. Therefore, the argument of Mr. Verma that the notification dated
12.11.2014 is not a notification withdrawing exemption/concession already
granted with respect to selling of electricity with retrospective effect, but
the same is only a clarificatory notification, is without any substance.
50. The notification dated 12.11.2014 does not indicate that such
notification has been issued in public interest. From the averments made
in paragraph 14 of the return of the State, it is manifest that the notification
dated 12.11.2014 came to be issued solely because the petitioners had
started earning profits. If profits are earned legitimately, the same cannot
be construed to be detrimental to public interest, necessitating withdrawing
a notification retrospectively.
51. Present is not a case that the petitioners had misused the provisions
of Industrial Policy 2004-2009 and the notifications issued from time to
time to implement the policy or that they had taken undue advantage. It is
also not the case presented that the petitioners did not have any vested
right towards exemption of payment of electricity duty for own consumption
as well as for sale of electricity. In the above background, bearing in mind
the law laid down by the Hon'ble Supreme Court on the doctrine of
promissory estoppel, we are of the opinion that notification dated
12.11.2014, which was deemed to have come into force with retrospective
effect from 01.11.2004 and which was issued in supersession of earlier
notifications with respect to exemption from payment of electricity duty
under Industrial Policy 2004-2009, cannot be sustained in law so far it
relates to nullifying exemption granted in respect of sale of electricity.
52. With regard to post-12.11.2014, it is noticed that by means of interim
order(s), it was provided that the petitioners shall not be compelled to
deposit electricity duty payable up to 12.11.2014. At the same time, the
petitioners were directed to pay the amount of electricity duty from
13.11.2014. It is submitted by learned counsel for the parties that
accordingly, the petitioners have been paying electricity duty from
13.11.2014. Period of 15 years from the date of commencement of
commercial production in respect of the petitioners is also over, save and
except in case of the petitioner in WPC No. 1829/2016. At any rate, the
petitioner in WPC No. 1829/2016, having not commenced commercial
production before 31.12.2009, even otherwise, was not entitled to
exemption from payment of electricity duty under the Industrial Policy
2004-2009. Interim order to pay electricity duty from 13.11.2014, it has to
be understood, was not in respect of self-consumption of electricity, as the
notification dated 12.11.2014 retained exemption in that respect, but the
same was in relation to sale of electricity by the petitioners. The incidence
of payment of electricity duty is finally borne by the consumers. Therefore,
it cannot be countenanced that petitioners have/had suffered any prejudice
because of the notification dated 12.11.2014 so far as its prospective
operation is concerned. Doctrine of promissory estoppel is an equitable
remedy and has to be moulded depending on the fact situation. In the
attending facts and circumstances, it will be wholly inequitable to pin down
the authorities to pre-12.11.2014 position. In that view of the matter, we are
of the opinion that no further orders are called for with regard to payment
of electricity duty with effect from 13.11.2014.
53. Accordingly, the writ petitions stand disposed of providing that the
respondents shall not recover any amount towards electricity duty from the
petitioners up to 12.11.2014.
54. No costs.
Sd/- Sd/-
(Arup Kumar Goswami) (Deepak Kumar Tiwari)
CHIEF JUSTICE JUDGE
Amit
