RAJESH H.SHUKLA - (1.) THE present petition has been filed by the petitioner ­ Indian Oil Corporation Ltd. under Articles 12, 14, 19(1)(g) & 226 of the Constitution of India as well as under the Indian Electricity Act, 1910 and also under the Electricity Act, 2003 read with Bombay Electricity Duty Act, 1958 for the prayers: "(A) this Hon'ble Court may be pleased to issue a Writ or Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction, quashing and setting aside the supplementary bill dated 22.2.2005, notice u/s. 24 of the Indian Electricity Act, 1910 dated 15.3.2005 and the order dated 18.3.2005 passed by the respondent no.1; (B) this Hon'ble Court may be pleased to hold and declare that the respondents are not entitled in law and on facts to issue the impugned supplementary bill by treating the petitioner's undertaking as a "service undertaking"; (C) pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to restrain the respondents, their agents, subordinates from effecting any coercive recovery in respect of the supplementary bill dated 22.2.2005 and they may be restrained from dis-connecting the electricity supply to the petitioner's pump station at Jamnagar bearing Consumer No.27125; (D) ..... (E) ....."
(2.) THE facts of the case briefly stated are that the petitioner is a Company incorporated under the Companies Act, 1956 and is a Government of India Undertaking. The Petitioner Company is engaged in business of petroleum products and carry petroleum products to various parts of the country, including through pipeline. It is stated that Salaya ­ Mathura Pipeline is one of such pipeline of the petitioner undertaking. It is the case of the petitioner that an agreement has been entered into between the Respondent no.2-GEB and the petitioner for supply of electrical energy of 350 KVA for the purpose of pump station at Jamnagar and as per the agreement, the petitioner is billed as per tariff schedule applicable to HTP-I. It is the case of the petitioner that though it is an "Industrial Undertaking", the Respondent No.1 has addressed a letter for charging the electricity duty applicable to "Service Undertaking". It is stated that the Jamnagar installation is one such boosting station of Salaya ­ Mathura pipeline and the crude oil is pumped from different points to Mathura refinery, and therefore, the pumping station is a part of the manufacturing unit. However, the Respondent No.2 has addressed a notice for disconnection of electric supply on the ground that the petitioner cannot be treated as "Industrial Undertaking" as defined under Section 2(bb) of the Bombay Electricity Duty Act, and therefore, is liable to make the payment, which has lead to filing of the present petition. Heard learned Senior Counsel Shri M.R.Bhatt for M/s M.R.Bhatt & Co. for the petitioner and learned AGP Shri Bipin Bhatt for Respondent No.1 and learned Advocate Shri M.D.Pandya for Respondent No.2.
(3.) LEARNED Senior Counsel Shri M.R.Bhatt referred to the background of the facts and submitted that the petitioner Company has been given the bills for HTP-I, meaning thereby, as an "Industrial Undertaking". He further submitted that the supply of the crude oil for carrying in the pipeline from Salaya to Mathura is part of the manufacturing process, and therefore, it would be an "Industrial Undertaking". He submitted that in fact the petitioner company has been registered under the Factories Act and the license has also been issued. Similarly, he has referred to a license to import and store. He has also referred to the certificate of Gujarat Pollution Control Board, which also referred to the unit as a Industrial Plant. He has also referred to the bills issued by the Respondent No.2 for the purpose of tariff category of HTP-I. Learned Senior Counsel Shri Bhatt therefore submitted that the petitioner is a "Industrial Undertaking" and cannot be termed as "Service Undertaking". He referred to the correspondence at Annexure-A-2 dated 27.4.2004 addressed by the office of the Collector of Electricity Duty to the petitioner, asking for the clarification with regard to the activity, which has been followed by other letters dated 3.1.2005 and also a letter by Respondent No.2 dated 28.1.2005. The petitioner has, vide communication dated 15.3.2005 replied to the same that the installation has come into operation since 22.8.1997 and one of the boosting station of Salaya ­ Mathura pipeline. It is also stated that predominantly the installation and pump station are of manufacturing unit. Learned Senior Counsel Shri Bhatt referred to the definition of "Industrial Undertaking" as provided in Section 2(bb) of the Bombay Electricity Duty Act, 1958 (hereinafter to as the "Duty Act"). He also referred to Schedule-I and submitted that as provided in item 5 regarding energy consumed by 'Industrial Undertaking', the duty would be payable and the petitioner would be liable accordingly. He also referred to the definition of "Service Undertaking" as defined in Section 2(ee) of the Duty Act and submitted that only those activities provided would be falling in the 'Service Undertaking' and the petitioner is not falling in any of the category, and therefore, it would be a 'Industrial Undertaking'. Learned Senior Counsel Shri Bhatt has referred to and relied upon the judgment of the Division Bench of the High Court reported in 2005 (1) G.L.R. 519 - Hindustan Petroleum Corporation Ltd. v. Gujarat Electricity Board and pointedly referred to the observations made in paragraph 5 and submitted that, in that judgment, it is observed that the establishment of the petitioner ­ Hindustan Petroleum Corporation Ltd. registered under the Factories Act, and as per Section 2k, manufacturing process means any process for pumping oil. Learned Senior Counsel Shri Bhatt submitted that the petitioner is also a oil company and what is required to be considered is manufacturing process, which is undertaken by the petitioner. Learned Senior Counsel Shri Bhatt submitted that while granting the HTP, it has been treated as 'Industrial Undertaking' by the Respondent No.2 Board and thereafter the Electricity Duty Inspector cannot be heard to say that for the purpose of tariff / duty, it would not be a 'Industrial Undertaking', but it would be a 'Service Undertaking'. He again referred to and relied upon the judgment of the Division Bench of the High Court reported in 2004 (4) G.L.R. 2815 ­ Sharma Metal Rolling Mills & Anr. v. State of Gujarat & Ors. and pointedly referred to the observations made in the said judgment, including paragraph 6. Learned Senior Counsel Shri Bhatt referred to this judgment to support his submission that the Hon'ble Division Bench had also the occasion to consider the definition of Section 2(bb) - 'Industrial Undertaking' and Section 2(ee) - 'Service Undertaking' and it has been observed quoting from the earlier judgment: "When we read section 2 (bb), the enactment has made it clear that even if an undertaking is engaged in any job work in manufacturing or production of goods, it will not go out of the purview of industrial undertaking irrespective of the fact that the said undertaking in manufacturing or producing adopts any one of the processes mentioned in Section 2 (ee). This makes it clear that, for categorising an undertaking under Section 2 (ee), it must be a service undertaking pure and simple. An undertaking is said to come under the service undertaking only when that undertaking serves the other party who approaches it for the purpose of services enumerated in Section 2 (ee). If in the process of such service any manufacture or production comes into existence, then also the said undertaking which renders such service will fall under definition of "industrial undertaking" mentioned in section 2 (bb)." ;