M/S. KOTHARI INDUSTRIAL CORPORATION LTD v. TAMIL NADU ELECTRICITY BOARD & Anr.

From the Judgment and Order dated 06.12.200 I of the High Court of Judicature at Madras in Writ Appeal No. 421 of 1995. 564 B c D E r G H MIS_ KOTHARI INDUSTRIAL CORPORATION LTD_ v. TAMii. NADU ELECTRICITY BOARD & ANR. 565 C. A_ NOS. 9749 and 9750 OF 2003 WITH Pravin 1-L Parekh. Nalini (~hida1nbaran1. E. R .. Ku1nar. Anurag Tripathi. (lor M/s. Parekh & Co .. ). Krislman1urthi Swami. Nikhil Swami, Divya Swami. Prabha Swami. Anushree Menon. Yikas Mehta. Rakhi Mohanty. Prashant Singh for the Appellant. B Subramonium Prasad. 13. Bala_ji. Sudhanshu. Utkarsh Srivastava for the Respondents_ The Judgment of the Court was delivered by RANJAN GOGOi, .I. I. These cases have been referred by a C two-Judges Bench of this Court on the question as to whether. iu the facts of the case. the principles or promissory cstoppel can be invoked in favour of the appellants so as to entitle them to the benefit of concessional tariff of e lcctric ity_

#2. Civil Appeal No.9748 of 2003 and Civil Appeal No. 9750 of D 2003 have identical facts. In fact the appellant in Civil Appeal No. 9750 of2003 is the successor-in-interest of the appellant in Civil Appeal No. 9748 of2003.The facts in the third appeal i.e. Civil Appeal No. 9749 of 2003 are also largely similar_

#3. The appellant in C.A.No.9748 of2003 Mis. Kothari Industrial Corporation Ltd. had proposed to set up a caustic soda manufacturing unit at Mana Ii in the State o fTam i I Nadu_ As the nrnnll l:1ct uring process involved high consumption of electrical power, the appcl I ant applied for concessional tariff which was promised to it by a Government Letter dated 29 .6. 1976 for first fi vc years after commencement of production. In the said letter it was specifically mentioned that the rate at which the appellants were required to pay tariff would be below the rate applicable to the other two established caustic soda units in the State for the first three years and therealicr the rates will be at par with that of the other two units in the State.

#4. Admittedly the unit of the appellant had started commercial production with effect from Janumy, 1979. On 23.2.1979 the Tamil Nadu Revision of Tariff Rates on supply of Electrical Energy Act, 1978 (hereinafter referred to as the ·'Act") came into force.

#5. Section 2(b) of the Act defines tariff in the following terms: E F G H 566 SUPREME COURT REPORTS [2016] I S.C.R. A B C D E F G H "Tariff' means the rate of tariff leviable upon the consumption of any electrical energy in this State supplied by the Tamil Nadu Electricity Board and as specified in the Schedule to this Act." Section 3 of the Act provides that the tariff rates for consumption of electrical energy shall be as specified in the Schedule to the Act. Under Section I the State Government is empowered to amend the provisions <.fthe Schedule to the Act after taking into account the cost of production of energy and such other matter as may be prescribed. The schedule to the Act, inter alia, provides that in the case of new industri !S, concessional tariff would be charged after commencem• nt of the production in the following manner- " For the f rst Three yeus ..... 66-2/3 For the fourth year ...... 80 Tension rate's under I (A), For the firti'I year ...... 90 For the sixth year ...... Per cent of the High Tension rates under I (A) (B) as the case may be. Per cent of the High I (B) as the case may be. Per cent of the High Tension rates Lmder I (A) (B) as the case may be. Full Tariff.''

#6. In exercise of the power conferred by Section 4 of the Act, the Schedule thereto was amended by GO. No.861 dated 30.4.1982. While maintaining the concessional tariff as noticed above, the Amendment provided that the same will not be available from the year when the industry starts earning profits. It is also an admitted fact that the appellants had furnished undertakings that it will be bound by amendment to the Schedule as affected by G.O. No.861 dated 30.4. I 982.

#7. On the above basis, a demand was raised on the appellants for consumption of electricity at the normal rate of tariff applicable on the ground that the industries had started earning profits. The said demand insofar as the appellant, Mis. Kothari Industrial Corporation Ltd. and Southern Petro Chemical Industries Corporation Ltd. is concerned is for the period from May 1982 to November, 1983, while for the appellant National Oxygen Ltd. the period is May 1982 to April, 1984. KOTHARI INDUSTRIAL CORPORATION LTD. v. TAMIL. NADU ELECTRICITY BOARD [RANJAN GOGOi, J.]

#8. The appellants protested against the said demand and eventually moved the High Court contending that under the Act the respondent State had promised concessional tariff for a period of five years starting from the date of commencement of commercial production. The said position could not have been revisited by any contrary action as has been done. Alternatively, it was contended that the appellants had not rr.ade any profits as claimed by the State. Therefore, even if the amendment in the Schedule to the Act is to be construed to be legally permissible, the same would have no application to the appellants which were loss making concerns. The said claim was negatived by the High Court leading to the appeals before us.

#9. We have heard Shri Pravin H. Parekh and Ms. Nalini Chidambaram, learned senior counsels for the appellants in C.A. No 9748 of2003 and C.A. No 9750 of2003 and Shri Krishnamurthi Swami, learned counsel forthe appellant in C.A.No.9749 of2003. We have also heard Shri Subramonium Prasad, learned counsel for the respondents. I 0. The question referred to this bench, as noticed, is whether the State would be estopped from altering/modifying the benefit of concessional tariff by means of the impugned G.O No. 861 dated 30.4.1982 on the principle of promissory estoppel. In fact, insofar as the caustic soda unitofM/s. Kothari Industrial Corporation Ltd., subsequently taken over by Southern Petro Chemical Industrial Corporation Ltd., is concerned, strictly speaking, the above question. would not even arise inasmuch as at the time when the unit was set up and had started commercial production, the Act had not yet come into force. The promise, if ariy, was made by the letter dated 29.6.1976 on the terms noticed abovr; namely, the tariff payable by the industry was to be at a rate less than what was applicable to the other two units of the State for the first three years and thereafter at the rate equivalent to what was being paid by the said two units.

#11. Be that as it may, the question referred has been squarely answered by this Court in Shree Sidhbali Steels Limited vs. State of Uttar Pradeslr & Ors.I wherein this Court has considered a similar question with regard to the withdrawal of concessional tariff/rebate to an industrial unit carrying on business in the hill areas of the State of U.P. (now the State of Uttarakhand). After an indepth consideration of 1 2011 (3) sec 193 567 A B c D E F G H 568 A B c D E G SUPREME COURT REPORTS [201(>J 1 S.C.R. the provisions orSection 48/49 or the Electricity Supply AcL 1948 under which the concessional tariff/rebate \Vas granted and the provisions or Section 21 of the (Jenera! ('lauscs Act as \vcll as the provisions ol'thc U.P. Electricity Reforms AcL 1999 undcr which the concessional tariff/ rebate \Vas later \Vilhdra\vn this C.'ourt in para 5 I ca1nc to the follo\ving c0nclusiu11 - "'Fron1 the above discussion. it is clear that lhc petitioners cannot raise pica of cstoppcl against the Notitication dated 7.8.2000 reducing, hil I development rebate to 0% as there can be no estoppcl against the statute.''

#12. In Para 47 oft/Jc report this Court has considered and liad thought it appropriate to extract. the vic, vs c.\pn.:sscd in an earl icr dl:'cision i.e. Stal<,: o{ R11j_a.'jl_ha11_~·s . .{.K~UdaiJ!l11.· (/d)<JgJtd.' : '"25. An cxe111ption is by definition a rrccdo111 fro1n an obligation \Vhich the cxc111plcc is othcr\visi.: liable to disthargc. It is a privilege granli ng an a<lvanlagi.: not ava i lablc lo otht.:rs. ;\n t.:xcnipt ion granted under a statutory provision in a fiscal statute has been held to be a concession granted by the Stale (Jovcrn111ent so that the beneficiaries of such conccssio11 arc not required to pay the tax or duty they arc otherwise liable to pay under such statute. The recipient ofa concession has no legally cnfiJrccablc right against the Government to grant of a concession except to enjoy the benefits of the concession during the period of its grant. This right to enjoy is a detcasiblc one in the sense that it may be taken away in exercise of the very power under which the exemption was granted. (Sec S/Jri Hukul Oil Industries v. Siule ol Gujunll, Kasinku liwli11)'.. v. U11io11 ol India and Shriiee Sain ( '011n1. v. U11i,)f) ol ludia. )" I}. On the aforesaid basis in Para 48 of the report in S'/1rce Sidhhali Steels Ud. (supra) it was concluded as ll>tlows : "'48. From the principle enunciated in the abovcmcnlioned decision in Udaipur U<(VO)'.. rnse there is no manner of doubt that the rebate which \Vas granlcd to lhc petitioners. was, by definition, a freedom from an obligation which the appellants otherwise were liable to discharge. ·r1ic rebate \Vas a privilege granting an 2 2004 (7) sec 673 11 KOTHARI INDUSTRIAL CORPORATION LTD. v. TAMIL NADU ELECTRICITY BOARD [RANJAN GOGOL J.] advantage which was not 111ade available to others. The rebate granted under Section 49 of the Electricity (Supply) Act of 1948 was, therefore, a concession granted by the State Government so that the beneficiaries of such concessions were not re~uired to pay the electricity tariff they were otherwise liable to pay under the said Act during the pe1·iod of its grant. The petitioners. as recipients of a concession, accepted to enjoy the benefits of the concession during the period of" its grant. This right to enjoy was a defeasible one in the sense that it was liable to be taken away or withdrawn in exercise of the very power under which the exe1nption was granted.')

#14. In the light of the above discussion and the earlier views of this Court, as set out above, it has to be held that the principle of promissory estoppel would have no application to the case of the appellants so as to entitle the applellants any right to the continuation of the concessional tariff earlier granted.

#15. The appellants have urged certain other issues to persuade the court to strike down the impugned action of the respondents in withc!rawing the concessional tariff, the foremost being that the industries in question had earned no profits so as to attract the withdrawal/disabling condition introduced in the Amended Schedule. In this regard it is pointed out that Kothari Industrial Corporation Ltd. had incurred losses as a \vhole though its caustic soda unit, to \vhoni concessional tariff \Vas promised and granted, may have ei1rned a profit. The concessional tariff having been granted to the industry by the Act in question, though in respe~t of its caustic soda unit, the assessment or profit/loss made by the industry as a whole and not by the unit alone, cannot be said to be an arbitrary or irrational basis for determining the application ofthc impugned GO. to the appellants in C.A.Nos.9748 and 9750 of2003. Similarly in the case of the appellant National Oxygen Ltd. the rel"usal of the respondent to compute the issue of profit/loss by distributing the depreciation of cylinders for a period of five years instead of the first year in which the depreciation was allowed, as claimed, cannot be termed as an unjustified basis for holding the industry to be a profit making enterprise. The contention on the above score made on behalf of the appellant National Oxygen, therefore, is of no consequence. Similarly the withdrawal of the GO. 861 dated 30.4.1982 in the year 1988 and a reversal to the situation prevailing earlier cannot invalidate the GO. (No. 569 A 13 c D E G II 570 SUPREME COURT REPORTS [2016) 1 S.C.R. .. A 861 dated 30.4.1982) inasmuch as it is for the State and not for the court to determine what should be the policy for grant/refusal of concessional power at different points of time. These are questions that must be left to the State and not to the Courts to decide .

#16. In the light of the above, even the contentions on the merits B of the decision as advanced by the appellants are not tenable so as to invalidate the action(s) impugned in the present cases.

#17. For the aforesaid reasons all the appeals are without any merit and are accordingly dismissed. Kalpana K. Tripathy c Appeals dismissed.