- (1.) By filing this petition under Article 32 of the Constitution, the ten Petitioners which are Private Limited Companies have prayed to issue a writ in the nature of mandamus or any other appropriate writ or order declaring notification No. 1208/ HC/UPPCL-V-1974/1204/2000 dated 07.08.2000 issued by the UP Power Corporation Limited, which was formerly known as U.P. State Electricity Board as illegal, arbitrary and violative of Articles 14, 19(1)(g) and 21 of the Constitution in so far as it denies the Petitioners, the Hill Development Rebate of 33.33% on the total amount of electricity bills issued by the Respondents for the remaining unexpired period of five years from the date of commencement of supply of electricity to the industrial units of the Petitioners. The Petitioners have also prayed to issue an appropriate writ in the nature of mandamus or any other appropriate writ, order or direction commanding the Respondents to restore/give Hill Development Rebate of 33.33% to the industrial units of the Petitioners on the total amount of the electricity bills for the remaining unexpired period of five years.
(2.) The facts giving rise to the filing of this petition are as under: The Petitioners are industrial units carrying on business of manufacturing iron rods, ingots, strips in furnaces/re-rolling mills in hill area known as Kotdwar, State of Uttar Pradesh, now State of Uttarakhand. The industrial units of the Petitioners were connected with power loads in the year 1996-97 by U.P. State Electricity Board which is now known as U.P. Power Corporation Limited. The claim made by the Petitioners is that from the year 1986, the State Government, in order to develop hill areas and particularly Zero Industrial Zones of hill areas as well as for inducing, encouraging and alluring new entrepreneurs declared various exhaustive industrial policies with the consent of UP State Electricity Board, Sales lax Department and Industrial Department granting various incentives including rebate of 33.33% on total amount of electricity bills to industrial units to be established in hill areas of U.P. The Petitioners have averred that a new industrial policy dated April 30, 1990 was declared by the State Government assuring grant of 33.33% rebate on total amount of electricity bills to new entrepreneurs for a period of five years. The case of the Petitioners is that the Government of UP, pursuant to the aforesaid policy issued an order dated 16-10-1990 to UPSEB to implement all the instructions contained in the said industrial policy. The said policy, according to the Petitioners was to remain in operation till March 31, 1995. The record shows that the UPSEB by Notification dated June 28, 1996 modified the earlier notifications and extended the Hill Development Rebate which was to expire on March 31, 1995 for a further period of next five years to be made available to the new industrial units which would be set up till 31-3-1997. The Petitioners have claimed that the five years period for which the Petitioners were entitled to the Hill Development Rebate of 33.33% on the total amount of electricity bills was to be over in the year 2001-02, What is asserted by the Petitioners is that in view of the promises, assurances and guarantees given by the Government of UP through various industrial policies declared from time to time and accepted, operated as well as implemented by UPSEB through different gazette notifications, the industrial units of the Petitioners were established in Kotdwar, Distirct Pauri in the year 1996-97. According to the Petitioners on January 3, 1997 the Respondent No. 2 Corporation, brought out its electricity tariff to be levied on the consumers and it was inter-alia stipulated that the promises made in the industrial policy declared by the UP Government on April 30, 1990 and gazette notification dated June 28, 1996 would continue to be available to the new entrepreneurs as before. The Petitioners have mentioned that 33.33% rebate promised to industrial units established in the hill areas was accordingly granted to the Petitioners who had established their industrial units in the year 1996-97. Explaining as to why the Respondents had promised to grant rebate of 33.33%, it is stated that, the rebate was meant to meet out extra expenditure incurred by the industrial units set up in hill areas in comparison to the industrial units established on plain and developed areas on account of various factors such as labour charges, maintenance cost, transportation of raw material, transportation of finished goods, availability of water, establishment charges etc. The Petitioners have averred that vide Notification dated 18-06-1998 & 25-01-1999, issued by the Respondent Corporation, uniform tariffs were introduced, which were seemingly innocuous but in fact had reduced the rebate from 33.33% to 17% and the result was that hill area units became less competitive and unviable in comparison to the units situated in developed areas. The Petitioners have mentioned that the two Notifications dated June 18, 1998/25-01-1999 levying the tariffs, were challenged by the Petitioners before High Court of Allahabad by way of filing C.W.P. Nos. 15292 and 15293 of 1999. The High Court vide judgment dated 25-05-2000 had allowed the writ petitions and struck down Clause 9(a) of the Notification dated 25-01-1999 and Clause 8(a) of the Notification dated 18-06-1998 holding that the Petitioners were entitled to get H.D.R. of 33.33% on the total bill till the period of five years from the date of commencement of supply of electricity to them was to come to an end. The record shows that the final judgment dated 25.05.2000 rendered by the High Court of Allahabad was challenged by U.P. Power Corporation Limited before this Court by way of filing SLP No. 10665-10666 of 2000 and this Court had initially passed an Interim Order dated July 28, 2000 directing the present industrial units of the Petitioners to make payments of electricity bills as per tariff notification dated 25.01.1999. The claim made by the Petitioners is that after passing of the above mentioned interim order dated 28.07.2000 the Respondent had issued a new tariff by notification dated 07.08.2000 and had increased exorbitantly the rate of charges and had completely withdrawn the Hill Development Rebate which was made admissible under the industrial policy declared by the then Chief Minister in the year 1996 and continuously allowed by the Respondent No. 2 till 18-06-98/25.01.99. It is relevant to notice that the notification granting rebate was issued under Section 49 of the Electricity Supply Act, 1948, whereas the notification dated 07.08.2000 whereby the rebate was completely withdrawn was issued under Section 24 of the Uttar Pradesh Electricity Reforms Act, 1999 which came into force with effect from 14.01.2000. The grievance made by the Petitioners was that because of the interim order dated 28.07.2000 passed in S.L.P. Nos. 10665-10666 of 2000, the Respondents were not entitled to issue and or introduce a new tariff by a notification dated 07.08.2000 increasing the rate of charges and completely withdrawing the Hill Development Rebate but were entitled to levy tariff according to the notification dated 25.01.99. Therefore, they filed IA No. NIL of 2000 in SLP Nos. 10665-66 of 2000 seeking appropriate directions from the Court. The claim advanced by the Petitioners is that the said IA was listed before the Court on 29.09.2000 and after hearing the parties, While adjourning the said IA for a period of two weeks the Bench hearing the I.A. had opined that the Petitioners, if so advised, should file writ petition challenging the new tariff/revised rates of power made applicable with effect from 09.08.2000 by the notification dated 07.08.2000. The Petitioners have claimed that taking hint from the opinion expressed by this Court on 29.09.2000, the instant petition was filed. The Petitioners have mentioned that by new tariff notification dated 07.08.2000, the Respondents have completely withdrawn the assured, promised and guaranteed Hill Development Rebate which has made it impossible for the Petitioners to run their industrial units located in the hill areas and therefore the notification dated 07.08.2000 should be regarded as illegal, arbitrary, discriminatory and violative of provisions of Article 14, 19(1)(g) and 21 of the Constitution as well as contrary to the principles of promissory estoppel. The assertion made by the Petitioners is that the Respondents are bound to act as per their promise, solemnly made to the Petitioners while inviting them to establish the industrial units in completely remote and underdeveloped areas of U.P. The Petitioners have further claimed that because of the tariff introduced by notifications dated 18.06.98/ 25.01.99 out of 28 industrial units which were established on assurances given by the Respondents, 15 industrial units were closed down and now only 13 industrial units of the Petitioners are operating at present. It is mentioned that the new tariff introduced by notification dated 07.08.2000 is contrary to the suggestions/recommendations made by Uttar Pradesh Regulatory Commission established under the provisions of Electricity Regulatory Commission Act, 1998. Under the circumstances, the Petitioners have filed the instant petition and claimed the reliefs to which reference is made earlier.
(3.) On service of notice Mr. N.N. Srivastava, Deputy General Manager (Com.), U.P. Power Corporation Limited, i.e., the Respondent No. 2 herein, has filed affidavit in opposition on behalf of Respondent Nos. 2 & 3 taking preliminary objections that the petition is not maintainable as no fundamental right of the Petitioners, which are the companies, is violated. The Respondent No. 2 has stated that since tariff was framed in exercise of statutory powers by a statutory body, the petition is not maintainable against exercise of this statutory power. In the reply it is mentioned that there is a provision of filing review before the Commission in case the Petitioners feel aggrieved but they are not justified in making grievance directly before this Court regarding introduction of new tariff rates and/or withdrawal of rebate by filing a writ petition under Article 32 of the Constitution. After mentioning that the agreement entered into by the Petitioners with the Respondent No. 2 Corporation contains a clause that the rates/ tariff fixed/revised by the supplier i.e. the replying Respondent, from time to time, would also be applicable to the Petitioners, it is asserted that in view of the said clause, the Petitioners are estopped from challenging the revision of the tariff made under statutory exercise of powers for greater public interest. In the reply, clause seven of the agreement has been reproduced and it is claimed that the petition which is mainly based on the principle of promissory estoppel being thoroughly misconceived, should be dismissed at once. So far as, merits of the matter is concerned, it is stated that the notification dated 07.08.2000 is neither illegal nor arbitrary nor discriminatory nor hit by the principle of promissory estoppel and the reliance placed upon the decision dated 25.05.2000 rendered by the High Court in Writ Petition No. 15292-93 of 1999 is misconceived as the same is subject matter of challenge in the pending SLP's. According to the reply, during the pendency of SLP filed by the Respondent UP Power Corporation Limited, the UP Electricity Regulatory Commission framed a new tariff in exercise of statutory powers and directed the Respondents to enforce the same and therefore the Respondents who are bound to enforce the tariff, have enforced the same vide notification dated 07.08.2000. It is claimed that tariff revision made under the statutory powers has nothing to do with the interim order dated 28.07.2000 passed by this Court in the SL Ps filed by the U.P. Power Corporation Limited and the High Court is wrong in allowing the Writ Petitions and directed that 33.33% rebate should be given to the Petitioners, when the entire tariff is changed and total financial burden on the Petitioners is less than 5% of tariff. After asserting that the Kotdwar is practically situated in plain area and very near to Najibabad, it is stated that the claim of high cost advanced by the Petitioners is not genuine. In the reply it is emphasized that the tariff was revised to minimize the theft of electricity which was prevalent amongst large and heavy consumers like Petitioners and in fact rates enforced with effect from 18.06.1998 were more favourable to the Petitioners but they were not satisfied with the said tariff and therefore had filed writ petition in the High Court from which the SLP No. 10665-66 of 2000 have arisen. Another affidavit dated 26.12.2000 is also filed by Mr. N.N. Srivastava clarifying certain aspects of the matter. In the additional reply, different provisions of U.P. Electricity Regulatory Commission Act and U.P. Electricity Reforms Act, 1999 are adverted to and it is claimed that in view of Section 7(a) of the Act, the tariff as framed by the U.P. State Electricity Board is applicable to the Petitioners and they having undertaken to pay the electricity charges as per the rules/tariff determined by UP State Electricity Board from time to time, the petition is not maintainable. It is also asserted in the reply that when the Regulatory Commission has held that no development rebate is to be given to a consumer, the Corporation has no authority at all to grant any development rebate and, therefore, the Petitioners are not entitled to the reliefs claimed in the petition.;