Oil & Natural Gas Corpn Ltd vs State Of Gujarat
2023 Latest Caselaw 5660 Guj

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 2632 of 2006

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                OIL & NATURAL GAS CORPN LTD & 1 other(s)
                                Versus
                      STATE OF GUJARAT & 1 other(s)
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Appearance:
MS AISHVARYA REDDY for M/S TRIVEDI & GUPTA(949) for Petitioners
MS ROSHINI PATEL, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                                Date : 04/08/2023

                                 ORAL ORDER

1. By way of this petition under Article 226 read with Articles

300A, 265, 14 and 19(1)(g) of the Constitution of India,

petitioners have challenged legality and validity of action of

respondent authority taken vide communications dated

13.12.2002, 26.3.2003, 10.1.2005 and 19.3.2002 as also

communications dated 2.2.2006 as well as 13.1.2006

respectively, precisely the reliefs contained with amended

prayers Court deems it proper to reproduce hereunder:-

A) Your Lordships may be pleased to admit and allow present petition.

(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other writ, order

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or direction quashing the impugned demands of electricity duty with interest made thereon by the respondent No.2 under his letter dated 13.12.2002 followed by his letter dated 26.3.2003 (Annexures-A & E respectively herein);

(C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction quashing and setting aside the impugned letter/communication dated 10.1.2005 (Annexure- B hereto) issued by the respondent No. 1 demanding interest allegedly payable on the electricity duty paid by the petitioner Corporation under protest.

(D) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction declaring that condition No.4 incorporated in the exemption certificate dated 19.3.2002 (Annexure-C herein) always meant and shall continue to mean that the said condition applied only when surplus power generated at Gandhar Unit of the petitioner corporation was/is wheeled from the said exempted Gandhar unit to any other unit of some other corporate body and not when the power is wheeled from one exempted unit to other unit within the same corporate body viz. the petitioner corporation.

(E) Pending hearing and final disposal of this petition, Your Lordships may be pleased to restrain the respondents from further recovering electricity duty in respect of the surplus power wheeled from the petitioner corporation's Gandhar unit to the aforesaid six units of the petitioner corporation and further restrain the respondents and their agents from taking any steps or action, including any coercive action in pursuance to the impugned letter dated 10.1.2005 for recovering any amount towards interest on principal amount of the electricity duty already paid and/or payable by the petitioners in respect of surplus power wheeled by it to its other units:

"9(E-1) Pending hearing and final disposal of present petition, Your Lordships may be pleased to stay the implementation, operation and execution of the communications dated 2.2.2006 and 13.1.2006 and the demand of Rs.1,99,60,099/- and/or Rs.2,30,48,446/- and restrain the respondents from taking any coercive or other measures in any manner for recovery of the said amounts;

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(F-1) Pending hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to refund the amount of Rs.6,57,06,519/- paid by the petitioner corporation as and by way of electricity duty and further restrain the respondents from recovering any amount of interest payable on electricity duty already paid and/ or payable by the petitioners. In the event the petitioner corporation does not succeed in the present petition, the petitioner undertakes to pay back the said to the respondents subject to other remedies available to it;

(G) An ex-parte ad interim relief in terms of paras 9 (E), 9(E1) & 9 (F) above may kindly be granted;

(H) Any other further relief as may deem fit in the facts of the case be granted.

2. Background on facts which has given rise to present

petition is that petitioner Oil & Natural Gas Corporation Ltd. is

a Government company in view of Section 617 of the Companies

Act, 1956 and is engaged in the business of exploration and

exploitation of Hydro Carbon and its sale. Petitioner has also

Captive Power Plant at its Gandhar unit, District Bharuch,

whereas petitioner No.2 is a shareholder of company and one of

the officers/ employees and is entitled to approach this Court by

way of present petition.

3. Petitioner Corporation having installed also additional

generating sets of the capacity of 1 x 22 MW and 1 x 12.5 MW

in order to meet with its additional power requirement and has

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applied for exemption from payment of electricity duty under

sub-section 2(A) of Section 3 of the Act. Respondent authority

was pleased to grant a certificate on 19.3.2022 issued in form

No.H entitling the petitioner Corporation to avail exemption

from payment of electricity duty for the period commencing

from 15.3.1997 to 14.3.2012 in respect of such units of

additional energy in excess of 367920 units of energy capable of

generation per month from the then existing generating sets

installed prior to installation of the aforementioned two

generating sets. After receipt of said exemption certificate,

request was also made to grant approval for wheeling of 15.9

MVA power from captive power through Grid of Gujarat

Electricity Board and details whereof is provided, which is

reproduced hereunder:-

Sr. Name of Location                         C.D: quantum of power to be
No. the Unit                                 wheeled and voltage level
1   ONGC          Santhal, INSITU            3000 KVA (2400 KW) @ 66 KV
                  Ph.1, Mehsana.
2   ONGC          Balol, INSITU      Ph.1, 3000 KVA (2400 KW) @ 66 KV
                  Mehsana.
3   ONGC          (A) South, Santhal 3000 KVA (1920 KW) @ 11 KV
                  GGS CUM CTF
4   ONGC          Ahmedabad,          CTF 3500 KVA (2400 KW) @ 66 KV
                  Kalol
5   ONGC          CTF Navagam                3000 KVA (2400 KW) @ 66 KV






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6    ONGC          Ankleshwar LPG Plant 1000 KVA (800 KW) @ 22 KV
                   TOTAL                  5900 KVA (12720) KW & AT
                                          0.8 p.f.

4. It is the case of the petitioners that it was for the first time

that respondent No.1 stated in the approval letter which was

granted that electricity duty shall be recovered as per Schedule-

II of the Act, although the petitioner corporation was not to sell,

transfer or allow use of the power to any other person or

undertaking and the power was to be wheeled through GEB's

Grid to the petitioner corporation's own units only mentioned

herein-before and as such there was no transfer of property in

the goods viz. power from petitioner Corporation to any other

3rd party which is the sine qua non if it is to constitute sale or

transfer to any other person. Said approval letter was issued on

10.11.2000. Pursuant to said approval having been granted by

respondent No.1, GEB under its letter dated 27.11.2000 also

permitted wheeling of surplus power upto 15900 KVA (12720

KW) at 0.8 p.f. through its grid. Said letter also contains similar

conditions that electricity duty shall be recovered as per

Schedule-II of the Act.

5. According to petitioners, condition No.4 contained in the

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certificate in Form No.H stipulates that no power shall be sold,

transferred or allowed to be used to any persons or

undertakings and plain reading of the said condition No.4 would

mean that exemption is not granted when the power is sold,

transferred or allowed to be used to any persons or

undertakings not belonging to the petitioner Corporation.

Acting under said bonafide and valid interpretation of clause

contained in certificate - Form No.H, petitioner Corporation did

not pay electricity duty in respect of the power wheeled to its

six units mentioned herein-before. The Chief Auditor in the

office of the respondent No.2 vide letter dated 26.3.2003

threatened the petitioner that unless petitioner Corporation

paid electricity duty at the rate of 0.20 paise per unit within 7

days of the receipt of said letter in respect of the power wheeled

to the petitioner corporation's own units at the location

mentioned herein-before, respondent No.2 will be constrained

to recommend respondent No.1 to withdraw exemption from

electricity duty granted to the petitioner Corporation's Captive

Power Plant (CPP) at Gandhar, District Bharuch.

6. Petitioner Corporation under its letter dated 2.5.2003

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inter alia informed respondent No.2 that petitioner Corporation

has been granted exemption from payment of electricity duty as

aforesaid for a period of 15 years with effect from 15.3.1997 to

14.3.2012 under sub-section 2A of Section 3 of the Act and

petitioner Corporation has never sold, transferred or allowed to

be used power generated at CPP Gandhar by any person or

undertaking except its own units and as such electricity duty is

not payable in terms of exemption which has been granted to

the petitioner. Respondent No.2 did not agree with the

contention of petitioner Corporation and as such under its letter

dated 11.8.2003 asserted that exemption given to CPP of 22 MW

and 12.5 MW is for the electricity generated and consumed at

Gandhar only and the said exemption does not include the

quantum of energy generated but wheeled to the six units

mentioned in the Government's letter dated 10.11.2000 and as

such, respondent No.2 consequently called upon the petitioner

Corporation to make payment of electricity duty at the rate of

0.20 paise per unit in respect of unit generated and wheeled

from aforesaid CPP at Gandhar along with interest @ 24% upto

31.3.2002 and 18% thereafter within a period of 30 days from

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the date of the said letter dated 11.8.2003 failing which further

consequential action will be initiated for recovery as arrears of

land revenue and simultaneously the Government shall be

moved to revoke the exemption given under Section 28 of the

Indian Electricity Duty Act, 1910. It is further case of the

petitioners that subsequent to this, petitioner took up the matter

with respondent No.1 authority, vide its letter dated 7.2.2004

indicating that petitioner corporation has not sold, transferred

or allowed the power generated at CPP Gandhar to any other

person or undertaking and as such are entitled to continue with

exemption. However, vide communication dated 12.7.2004,

respondent No.1 turned down the request and subsequently,

respondent No.2 insisted for clearing the arrears vide their

communications dated 16.7.2004 and 24.9.2004. On such

insistence, petitioner Corporation wrote a letter on 27.9.2004 to

respondent No.1 indicating that though it was not in the

agreement with decision of Government of Gujarat, still with a

view to comply with all conditions/ criteria for being exempted

from payment of electricity duty, petitioner Corporation without

prejudice as goodwill gesture would deposit principle amount of

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electricity duty for the period commencing from January 2001 to

June 2004 amounting to Rs.5,11,58,750/- and it was also

informed that payment of electricity duty for the month of July

2004 and August 2004 amounting to Rs.61,91,831/- was already

paid under protest, hence it had deposited full amount of

electricity duty allegedly payable by it to respondent No.2 and

as such reiterated the request for waiver/ withdrawal of amount

of interest allegedly payable by it till the month of July 2004. It

is further assertion of the petitioner that in view of exchange of

correspondences, which took place, it was felt by petitioner that

interpretation of terms would be insisted upon as per their wish

and request of petitioner appears to have not been considered

in the right spirit. Under letter dated 25.10.2004, it was

informed that petitioner is paying principal amount of electricity

duty as indicated above of Rs.5,11,58,750/- without prejudice to

their rights and contentions in addition to further amount which

has been indicated and since said amount is deposited, demand

of interest for the aforesaid period on arrears of electricity duty

was required to be waived. On the contrary, petitioner

Corporation has been paying electricity duty under protest for

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the subsequent months, i.e. September 2004, October 2004,

November 2004, even December 2004 as well as January 2005.

On this amount being paid as goodwill gesture and in view of

the guidelines issued by the Hon'ble Apex Court, petitioner

Corporation being Government Company has tried its level best

to see tat issue can be resolved. On the contrary, respondent

No.1 announced the policy for supply of electrical power to

group companies and Gujarat Electricity Board/ licenses

wheeling of power etc. by Captive Power Projects under

Government of Gujarat Energy & Petrochemical Department,

vide resolution dated 9.11.1998 and said power policy contained

a clause 3(A) which provides that wheeling of surplus electricity

power would be permitted subject to sanction of State of

Gujarat as required under the provisions of the Indian

Electricity Act, 1910 and clause (C) of the said resolution inter

alia provides that company supplying electrical energy to any

group company could recover energy charges from its group

companies for energy consumed on pro-rata cost sharing and no

profit and no loss basis. However, energy duty and tax on sale

of electricity would be payable in respect of power wheeled at

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the rate at which power is supplied by Gujarat Electricity Board.

Petitioner has made a reference to clause 3(b) and thereby has

submitted that there is nothing wrong committed nor any

breach committed by petitioners which can permit the

respondent authorities to recover any amount. As a result of

this, left with no alternate, petitioners have approached this

Court by way of present petition for the reliefs set out herein-

before.

7. Petition was originally admitted by learned Single Judge

on 24.4.2006 and while issuing Rule, no coercive steps to be

initiated against petitioners which interim protection appears to

have been continued and later on, it appears that after hearing

on 19.6.2006, an order was passed to grant ad-interim relief in

terms of para 9(E-1) and fresh notice was ordered to be issued.

With this background, present petition has come up for

consideration before this Court finally in which learned

advocate Ms. Aishvarya Reddy has represented the petitioners

whereas learned Assistant Government Pleader Ms. Roshni

Patel has represented the contesting respondent authority.

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8. Learned advocate Ms. Aishvarya Reddy appearing for the

petitioners has submitted that petitioner Corporation has not

sold any electricity to any third party nor to any other stranger

or to a different industrial undertaking and as such it cannot be

said that it had transferred or sold the electricity which would

attract any penal consequences. It has further been contended

that units of the petitioner Corporation located at three

locations as indicated above in the chart cannot be said to be

different industrial undertakings simply because they are

located at different locations. Each location of exploration as

such cannot be treated as different undertaking since it is under

umbrella of same ownership and as such rejection of request of

petitioners by respondent No.1 is arbitrary, illegal and not

sustainable in the eye of law. It has further been contended that

since principal amount of electricity duty itself is a subject of

dispute between petitioner Corporation and respondent

authority and when principal amount of electricity for the

months commencing from January 2001 to January 2005 under

protest and as a goodwill gesture has already been paid,

demand of interest on the said amount is out of place. Hence

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decision taken by respondent authority reflects a clear non-

application of mind and is not sustainable. Learned advocate

Ms. Reddy has further submitted that ex-facie perusal of

decision under challenge would clearly indicate that not only it

is suffering from vice of non-application of mind but reflects no

reasons nor any subjective satisfaction. It is trite law that

principle of natural justice is applicable to whole range of

exercise of power, either it is judicial, quasi judicial or

administrative and by now, reasons are treated as part and

parcel of principle of natural justice and since impugned action

reflects no reasons, it is violative of principles of natural justice.

9. Learned advocate Ms. Reddy by drawing attention to

exemption certificate has contended that true interpretation of

clause 4 would indicate that same cannot be resorted to by an

authority to fix the liability of petitioner in any form. Wordings

which are used in the said clause would not be utilized for the

purpose of imposing financial liability upon petitioner. It has

been submitted that on the contrary, certificate dated 22.7.1997

reflecting on page 18 at Annexure-C, basically the conditions

contained therein are to control or to prevent electricity from

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being sold, transferred or allowed to be used by any persons or

undertakings and as such since petitioner Corporation is not

committing any breach of this clause, demand raised is

erroneous. On the contrary, by drawing attention to Annexure-E

at page 22, learned advocate Ms. Reddy has submitted that

Government of Gujarat has accorded permission under Section

28 of the Indian Electricity Act for wheeling of CPP power and

accordingly permission was granted to wheel surplus power

upto a limit which is mentioned through Board's grid to various

units through Gujarat Electricity Board network for 10 years as

indicated in the said communication and electricity duty shall be

recovered as per Schedule-II of Bombay Electricity Duty Act,

1958. So, from aforesaid clauses and communications, including

representation and requests which have been made, it clearly

transpires that decision under challenge is suffering from vice of

non-application of mind as well as in flagrant violation of

principles of natural justice and by referring to proposition that

such kind of un-reasoned action is not recognized by law,

requested to grant relief as prayed for in the petition.

10. As against this, learned Assistant Government Pleader Ms.

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Roshni Patel appearing on behalf of the contesting respondent

authority has submitted that it is an undisputed fact that

exemption certificate which has been granted was conditional

exemption subject to compliance of the same which are

contained therein and when conditions are said to have been

violated, authorities are fully justified in taking consequential

action against the petitioner. It has been submitted that when

exemption certificate was granted, authority was not made

aware that petitioner is to transfer power to six units. Had they

been so informed at the relevant point of time, probably

authority might not have exempted the petitioner from payment.

It was never intended by authority that same would be

applicable to all units which are mentioned herein-before and by

referring to conditions, it has been contended that such

exemption is not permitting the petitioner to transfer the power

to other units located at different places. It has been submitted

that policy pertaining to it is clear enough to suggest that even

if there is a joint ownership, exemption is limited only to those

undertakings which are separately and specifically exempted.

Here, no such situation is visible, as a result of this, the

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authority is justified in initiating action. Authority came to know

about the fact that petitioner after securing exemption is

intending to transfer the power to these six units which are

located at different places only when they received letter dated

10.8.2002. Whereas exemption was granted already prior

thereto on 19.3.2002 and since authorities were not made

known about this fact that petitioner had more than one unit,

authority cannot be said to be arbitrary or erroneous in raising

the demand by giving interpretation of condition No.4 of

exemption certificate in contrast to what has been contended by

counsel for petitioner. It has been submitted that in a situation

like this, there is hardly any justification for the petitioner to

claim as of right. It is a settled position of law that whenever

any ambiguity is visible in interpreting the exemption clause/

provision, benefit must go to State or an authority which has

granted such exemption and for that purpose, learned advocate

has made a reference to a decision reported in 1994 Supp (3)

SCC 606 (paragraph 16) and 1992 Supp (1) SCC 21 and by

taking such plea, a request is made to dismiss the petition. No

other submissions have been made.

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11. Having heard learned advocates appearing for the parties

and having gone through the material on record, before

examining the submission, few circumstances deserve

consideration and hence we deem it fit to quote hereunder.

12. Perusal of the impugned communications dated

13.12.2002 as well as 10.5.2005 reflects no reasons in decision

making process for not considering the grievance of

petitioners. In communication dated 10.5.2005 (at Annexure-B),

it has been merely indicated that looking to the provisions of the

Bombay Electricity Duty Act, 1958, it is not possible to accede

to the request but under which provision or for what reason,

request is not acceded is not forthcoming at all and same is the

case with other impugned communications which are under

challenge. Though dates are incorrectly mentioned in the prayer

clause, but perusal of the impugned communications reflects

that decision making process appears to be not in consonance

with the settled proposition of law. Time and again, Hon'ble the

Apex Court has propounded that reasons are part and parcel of

the principles of natural justice and every decision making

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process must reflect application of mind and supported by

adequate reasons. In a situation like this where petitioners are

saddled with financial liability, decision must reflect relevant

provisions under which request is not accepted and reasons as

to why request is not adhered to. When serious issues have been

raised with regard to relevant provisions, precisely Section 3(2)

(A) along with other relevant provisions, it was obligatory on the

part of authority to reflect application of mind which is

completely missing in the present case.

13. In the affidavit-in-reply submitted by the authority, an

attempt is made to project the stand against petitioners, but

then it is a trite law that reasons cannot be supplemented in

reply to proceedings, it should reflect when original action is

taken. Effect of exemption certificate in comparison with

relevant provisions of the Act which are applicable is not at all

appearing to be compared with by an authority while discarding

the request and further what would be the effect when a person

is seeking permission for one unit and then transmitting to

several other units, whether said action of petitioners is

permissible or not, there appears to be some justification when

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same is intended to be not permitted. It is very unfortunate that

respondent organization in such a serious issue has completely

given go-bye to the well-recognized principle while taking

decision.

14. Court's jurisdiction under Article 226 of the Constitution

of India is limited to examine decision making process. But

when it appears that said decision making process is completely

blank, without supporting any reasons or reflects no application

of mind by an authority to arrive at a conclusion, it would be

difficult for the Court to exercise judicial review and this is a fit

case in which it appears to this Court that in absence of any

application of mind or reflects of any reason for not considering

the request, remand order deserves to be passed keeping in

view the settled position of law. Normally, the Court would not

have exercised the power at this stage of such remanding of a

matter back to the authority, but when authority has not

reflected even remote reasons, the Court is left with no

alternate but to direct the authority to reconsider and take

appropriate decision strictly in accordance with law after

assigning proper reasons.

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15. At this stage, the Court is reminded of a well settled

proposition of law on the issue which the Court deems it proper

to reproduce hereunder:-

(1) Paragraphs 13 and 14 of the judgment rendered in the case of Commissioner of Income Tax- v. Rashtradoot (HUF) reported in (2019) 5 SCC 149 read as under:-

13. This Court has consistently laid emphasis that every order/judgment, which decides the lis between the parties, must contain the reason(s)/ground(s) for arriving at a particular conclusion. Indeed, what is decisive for deciding the case is not the conclusion alone but the reason(s)/ground(s) assigned in support of such conclusion, which results in reaching to such conclusion.

14. In order to decide as to whether the impugned order is legally sustainable or not, the Appellate Court is entitled to know as to what impelled the Court below to pass such order in favour of one party and against the aggrieved party. We find that this requirement is missing in the impugned order of this case and hence the interference is called for. (See− State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222, State of U.P. vs. Battan & Ors., (2001) 10 SCC 607, Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568).

(2) Paragraphs 9 and 10 of the decision in the case of State of Orissa and others v. Chandra Nandi reported in (2019) 4 SCC 357 read as under:-

9. The need to remand the case to the High Court has occasioned because from the perusal of the impugned order, we find that it is an unreasoned order. In other words, the High Court neither discussed the issues arising in the case,

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nor dealt with any of the submissions urged by the parties and nor assigned any reason as to why it has allowed the writ petition and granted the reliefs to the writ petitioner which were declined by the Tribunal.

10. This Court has consistently laid down that every judicial or/and quasi−judicial order passed by the Court/ Tribunal/ Authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate/revisionary Court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and the findings on the submissions urged, it is not possible to know as to what led the Court/Tribunal/Authority for reaching to such conclusion. (See − State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222, State of U.P. vs. Battan & Ors., (2001) 10 SCC 607, Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568).

16. Considering the aforesaid circumstance, when authority

itself has not interpreted its own provisions which are

applicable and reflects a sheer non-application of mind and

action appears to be laconic in nature, Court is of the clear

opinion that authority ought to have assigned proper reasons.

Hence, the Court deems it proper to pass following order which

would meet the ends of justice:

ORDER

(1) Impugned communications dated 13.12.2002, 26.3.2003, 10.1.2005 (10.5.2005), 19.3.2002, 2.2.2006 and 13.1.2006 are hereby quashed and set

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aside with a consequential direction upon the respondent authority to reconsider the request of the petitioner and pass a fresh order after assigning proper reasons and after due compliance of principles of natural justice.

(2) Since the Court is remanding the matter back to the authority, the Court has refrained itself from expressing any opinion on merits and it is independently left it open to the authority to take appropriate decision in accordance with law on the basis of statutory provisions and policy applicable.

(3) It is needless to state that petitioners shall be given appropriate opportunity to represent before taking fresh decision and since considerable long time has elapsed and protection has been granted by virtue of previous order in the present proceedings for not taking any coercive action, the Court directs the respondent authority to take a fresh decision in accordance with law as early as possible, but not later than six weeks from the date of receipt of writ of this Court.

(4) It is further needless to state that all questions are open for consideration by the authority.

(5) It is also made clear that by virtue of interim order in

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the present proceedings, protection which has been granted to the petitioners shall continue to operate till fresh decision is taken by the authority in the aforesaid time schedule and petitioners shall cooperate with fresh decision making process by the respondent authority.

17. Petition stands DISPOSED OF in the aforesaid terms.

Rule is made absolute to the aforesaid extent.

Sd/-

(ASHUTOSH SHASTRI, J) OMKAR