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2010 Supreme(SC) 461
IN THE SUPREME COURT OF INDIA
Harjit Singh Bedi and T.S. Thakur, JJ.
EXECUTIVE ENGINEER, UTTARANCHAL POWER CORPORATION
Versus
M/S. KASHI VISHWANATH STEEL LTD. & ORS.
(Civil Appeal No. 1106 of 2007)
Decided on : MAY 12, 2010
Headnote:Administration of Justice – Promissory estoppel – No averment in the writ petition filed by the respondent-company indicating any promise made by either the U.P. Power Corporation or its successor regarding supply of energy without any surcharge – No averment indicating that the respondent-KVSL had altered its position acting upon any such promise – Agreements executed between KVSL and Power Corporation also not containing any unequivocal promise for supply of energy – In the absence of such averments company cannot insist upon any such non-existent promise being made good – Before a party can rely upon on the doctrine of promissory estoppel it must make a specific averments and place material on record to demonstrate that a promise was indeed made to it – Plea of promissory estoppel not available to the company. (Para 17, 18)
Facts of the case:
Respondent Kashi Vishwanath Steels Ltd. had entered into an agreement with Uttar Pradesh Power Corporation Ltd., Lucknow for the supply of electrical energy for the production of Furnace and Steel Rolling Manufacturing (Process) unit at Narayan Nagar Kashipur in the form of three phase Alternating Current at a declared pressure of 33000 Volts and a power of not exceeding 4800 K.V. amperes. The said agreement was followed by a fresh agreement executed on 28th March, 2000 between the company and the Uttar Pradesh Power Corporation Ltd., inter alia, providing that the company shall pay for the supply of energy at the rates stipulated by the supplier from time to time and that the rate schedule applicable at the time of execution of the agreement could be revised at the discretion of the supplier. With the tariff prescribed by the U.P. Electricity Regulatory Commission becoming effective for the supply received by the consumer- company the latter became liable to pay in terms of the said tariff. The circular issued by the Corporation, inter alia, provided that if consumers connected to independent feeders did not want electricity supply for the guaranteed period of 500 hours, no such surcharge of 15% could be levied provided they intimate to the Executive Engineer that they do not want the guaranteed supply for 500 hours.
Pursuant to the above circular the KVSL addressed two letters to the Executive Engineer of the Corporation to the effect that the former did not require the assured supply of electrical energy for 500 hours and that they may not be required to pay surcharge at the stipulated rate of 15%. On receipt of the said letters the Executive Engineer issued an office memo dated 24th October, 2000 granting exemption to the KVSL from payment of 15% surcharge subject to the unit complying with the other conditions stipulated in the memo.
The Uttarakhand Power Corporation established upon bifurcation of the U.P. Power Corporation issued an order withdrawing the exemption granted to KVSL by the erstwhile U.P. State Power Corporation Ltd.
Aggrieved by the above order KVSL filed writ petition before the High Court of Uttaranchal challenging Note (a) of Clause IV, Rate- Schedule in Category HV-2 List II of the tariff to be unconstitutional and for quashing the revised bill issued to KVSL.
The above petition was allowed by the High Court of Uttaranchal. The demand raised by the Corporation was accordingly struck down.
Finding of the Court:
No promise was made by the U.P. State Power Corporation to the respondent- KVSL which could justify the grant of any mandamus in its favour for making good any promise of supply of electricity without surcharge.
Result:
Appeal allowed with costs.
JUDGMENT
T.S. THAKUR, J.
1. This appeal by special leave arises out of an order dated 17th January, 2007 passed by the High Court of Uttaranchal at Nainital whereby Writ Petition No.936 of 2001 filed by respondent M/s Kashi Vishwanath Steels Ltd. has been allowed and order dated 7th December, 2001 passed by the Executive Engineer (Electricity) Distribution Division, District Udham Singh Nagar, quashed.
2. Uttar Pradesh State Electricity Board was established by the State of Uttar Pradesh in terms of the provisions of the Electricity (Supply) Act, 1948. With the enactment of Uttar Pradesh Electricity Reforms Act, 1999 the Government constituted Uttar Pradesh Electricity Regulatory Commission. In terms of a Notification dated 7th August, 2000 the Commission stipulated the tariff for the supply of electricity effective from 9th August, 2000. The rate schedule for large and heavy power, inter alia, provided that consumers who opt for power supply during the restricted/peak hours shall pay an additional surcharge of 15% on the amount billed at the "Rate of Charge" under item-4A of the Schedule. It further provided that consumers getting power supply from independent feeders emanating from 400/220/132 KV sub-stations shall pay an additional surcharge of 15% on demand and energy charges subject to the condition that these consumers will get assured electricity supply of minimum 500 hours in a month. In case of shortfall in the guaranteed hours of electricity supply, the consumers were entitled to a rebate @ 1% for each 10 hours shortfall on the bill amount computed under "Rate of Charge". Relevant portion of the Tariff Rate Schedule HV-2 forming part of Notification dated 7th August, 2000, reads as under:
"........... Notes:
(a) In respect of consumers who opt for power supply during restricted/peak hours an additional surcharge of 15% on the amount billed at the "Rate of Charge" under item 4-A above, i.e. Demand Charge and Energy Charge shall be levied. However, in respect of consumers getting power supply on independent feeders emanating from 400/220/132 KV sub-stations an additional surcharge of 15% on demand and energy charges shall be charged further subject to the condition that these consumers will get an assured supply of minimum 500 hours in a month. In case of short fall in above guaranteed hours of supply a rebate @ 1% for each 10 hours short fall will be admissible on the bill amount computed under "Rate of Charge". ......................."
3. Respondent- Kashi Vishwanath Steels Ltd. (hereinafter referred to as the `KVSL` for short) is a public limited company registered under the Companies Act. On 9th November, 1995 it had entered into an agreement with Uttar Pradesh Power Corporation Ltd., Lucknow (respondent no.4 in this appeal) for the supply of electrical energy ipfor the production of Furnace and Steel Rolling Manufacturing (Process) unit at Narayan Nagar Kashipur in the form of three phase Alternating Current at a declared pressure of 33000 Volts and a power of not exceeding 4800 K.V. amperes. The said agreement was followed by a fresh agreement executed on 28th March, 2000 between the company and the Uttar Pradesh Power Corporation Ltd., inter alia, providing that the company shall pay for the supply of energy at the rates stipulated by the supplier from time to time and that the rate schedule applicable at the time of execution of the agreement could be revised at the discretion of the supplier. With the tariff prescribed by the U.P. Electricity Regulatory Commission becoming effective for the supply received by the consumer- company the latter became liable to pay in terms of the said tariff. Some confusion, however, appears to have arisen in regard to the interpretation of the tariff prescribed by the Commission particularly in relation to the levy of 15% surcharge upon consumers who drew power from independent feeders. The Corporation purported to clear the mist by issuing a circular dated 8th September, 2000 wh
