Full Judgment Text
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CASE NO.:
Appeal (civil) 1425 of 2001
PETITIONER:
THE TRANSMISSION CORPORATION OF A.P. & ORS
RESPONDENT:
M/S. HEMSON STEELS ALLOYS PVT. LTD. & ORS
DATE OF JUDGMENT: 19/02/2008
BENCH:
H.K. SEMA & MARKANDEY KATJU
JUDGMENT:
JUDGMENT
O R D E R
CIVIL APPEAL NO.1425 OF 2001
WITH
C.A.NOS.1469 and 1470 OF 2008 ARISING OUT OF
SLP(C)NOS.3088 AND 3991 OF 2004
Leave granted in SLP(C)Nos.3088 and 3991 of 2004.
We have heard the parties at length.
In these three appeals a common question of law and fact has arisen. For the
sake of brevity we are taking facts from C.A.No.1425 of 2001.
The appellant the Transmission Corporation of A.P. is a statutory authority
constituted under Section 5 of the Electricity (Supply) Act, 1948 (hereinafter as ’the
Act’). In exercise of power under Section 49 of the Act by an order dated 20.09.1975
the Corporation allowed certain concessions to the respondents. Paragraph 7 of the
concessions reads :
"7. Concession for New Industries..... A rebate of 25% on Demand
and Energy charges for specified H.T. Industries will be allowed for the
first three years from the date of their going into production."
It is alleged that the respondents did not go into production within the
stipulated time. Consequently, the aforesaid concession was withdrawn on
14.10.1987. Undisputedly, the respondent Company, namely, M/s. Hemson Steels
Alloys Pvt. Ltd. went into commercial production with effect from 09.07.1988. The
respondent in C.A.No1470/2008 arising out of SLP(C)No.3991/2004, namely, Shanti
Castings went into commercial production on 09.01.1988. It is, therefore,
contended strenuously by Mr. Shanti Bhushan, learned senior counsel appearing for
the appellants that since the respondents Company did not go into production
within three years period the Corporation has validly withdrawn the concession on
14.10.1987.
Per contra, Mr. P.S. Narasimha, learned coounsel appearing for the
respondent in C.A.No.1470/2008 arising out of SLP(C)No.3991/2004 contended that
as the State has exercised power under Section 78A of the Act, the Board was
incompetent to withdraw the concession and therefore the impugned order of
withdrawal of concession was not tenable in law.
Mr. Shanti Bhushan, learned senior counsel, appearing for the appellants has
invited our attention to the provision of Section 49 of the Act where it is provided
that the Board has power to grant such concession. By our order dated 28.11.2007
we directed Shri H.S. Gururaja Rao, learned senior counsel appearing for the State
to file affidavit within two weeks to clarify whether the order 27.07.1989 passed by
the State Government was passed in exercise of power under Section 78A of the
Electricity (Supply)Act, 1948 or not.
Pursuant to our aforesaid direction the State has filed counter-affidavit. It is
explained in paragraph 9 of the affidavit that the State of Andhra Pradesh has not
issued any directive to the A.P. State Electricity Board in respect of 25% tariff
concession to certain industries in the State of Andhra Pradesh. It is also stated that
G.O.Ms. No.375 dated 28.8.1985 & G.O.Ms. No.379 dated 27.7.1989 do not
constitute directives to the Board under Section 78A of the Electricity (Supply) Act,
1948.
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In view of the clarification in the State’s affidavit, we could have disposed of
these appeals on their own merits. However, it has been brought to out notice the
judgment of the Division Bench of this Court rendered in earlier C.A.No.9746/1996
disposed of on 07.01.1997 in the case of A.P. State Electricity Board and Others vs.
M/s. V.K. Ferro Alloys Industries Pvt. Ltd. The Division Bench of this Court having
considered the G.O.Ms No.379 dated 27th July, 1989 has recorded the following
conclusion :
" We have heard learned counsel for the parties and perused
various Government Orders issued in relation to the grant of 25%
concession in electricity tariff including G.O.Ms No.379 dated 27th
July, 1989. A perusal of the said G.O.Ms unmistakably shows that the
concession was withdrawn only after 27th July, 1989 and since the
respondent company had admittedly gone into commercial production
prior thereto, it was entitled to the 25% rebate in the tariff and the
withdrawal of the concession on 27.7.1989 did not apply to the
respondent industry. The High Court, therefore, rightly allowed the
writ petition. No case for interference is made out. The appeal fails
and is dismissed."
In our view the two Judge Bench of this Court did not go into the core question
as to whether concession was accorded by the State in exercise of the direction as
provided under Section 78A of the Act or it was accorded by the Board in exercise of
its power under Section 49 of the Act. In our view, therefore, this point deserves to
be considered by a larger Bench. Place the matter before Hon’ble Chief Justice for
appropriate orders.