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1997 Supreme(Guj) 334
Gujarat High Court
Judgename :S.K.Keshote
Malhotra Inducto Cast Pvt.Ltd. - Appellant
Versus
Gujarat Electricity Board - Respondent
S.C.A. 6156 of 1986
Decided On : 07/15/1997
Headnote:(a) Constitution of India, 1950 - Art. 226 - Development Loan Amount Scheme - Validity - Scheme continued in force from 1.11.1986 to 12.3.1987 & thereafter suspended by Board resolution in pursuance to Govt. letter - Held, in that view of the matter it is not necessary in the case to go on the question of validity of the scheme itself - That apart amount deposited by petitioner under the scheme has been repaid by the Board with interest.
The fact on which there is no dispute is that this scheme has remained in operation from 1st November, 1986 to 12th March, 1987 and only those consumers who has applied and taken connection of electricity during this period were subjected to this scheme. Rest of the applicants earlier and after these date have not been saddled of with this burden. In view of the subsequent events and developments which have taken place, and particularly in view of the Resolution No. 5792 dated 26th March, 1987 of the Board and the letter of the Government dated 12th March, 1987, it is not necessary in this case to go on the question of validity of the scheme itself. There is yet another reason which warrants the aforesaid course to be taken in this matter. The amount which has been deposited by the petitioner under the aforesaid scheme has been repaid by the Board and interest at the rate of 5% has also been paid.
[Para 11]
(b) Constitution of India, 1950 - Art. 226 - Action of respondent Board to withhold the amount deposited by petitioner under the scheme - Validity - Admittedly scheme has been discontinued by Board on directions of Govt. vide letter dated 12.3.1987 - There is no direction by Govt. while suspending the scheme to retain the said amount deposited thereunder - In the circumstances court held, that it is a matter for Govt. to decide whether to retain the amount or not.
The only dispute which now survives in the case is against the action of the respondent-Board to withhold the amount of Rs. 12 Lacs deposited by the petitioner under the scheme. The contention of the counsel for petitioner, as noticed earlier, was that it was a case of forced loan from the petitioner by the Board and as such, the petitioner is entitled on this amount interest at the rate of 21% p.a. However, it is a fact on which there is no dispute that this scheme was discontinued by the Board by suspending the same on the direction of the Government as contained in its letter dated 12th March, 1987. In the letter dated 12th March, 1987, the Government has nowhere directed the Board that while suspending the said scheme it may retain the amount which has been deposited by the consumers in response to the said scheme for taking electricity connection. So it is a matter now to be decided by the Government whether the Board while suspending the scheme under its directions could have resolved to retain the amount or not.
[Para 12]
Further, it was for the Government to decide what it intended to do with the amount deposited by consumers under the Development Loan Amount Scheme and how that amount has to be dealt with by the Board on suspension of the said scheme. The Government is the best person to decide the matter. Moreover, for one another reason, this matter has to be considered by the Government. In the letter to the Board, in pursuance of which the Board has put under suspension the aforesaid Scheme, the Government has nowhere stated that the amount which has been deposited by the consumers for taking new connection under the Scheme should be retained by the Board. The matter would have been different where such a condition would have been put by the Government, and in that case, the validity of such condition would have been examined by this Court. But this condition to retain the amount has been adopted by the Board on its own without there being any such direction from the Government. So, the Government is the proper authority which should have first gone into this matter. However, these are the matters to be decided by the Government. What further has transpired in the matter has also not been brought on the record of this case by the parties.
[Para 13]
( 1 ) THE petitioners, by this petition under Art. 226 of the Constitution of india, challenged the validity of the Development Loan Amount Scheme (hereinafter referred to as the scheme) approved by the 1st respondent (hereinafter referred to as the board), vide its Resolution No. 5599 dated 14. 10. 1986 and the condition No. 8 introduced thereafter in the Boards "conditions and miscellaneous Charges for supply of electrical energy", the salient features whereof are set out in the Boards Commercial circular No. 530 dated 23. 10. 1986. Further challenge has been made to the forced Loan deposit of Rs. 12 Lacs demanded by the respondents from the petitioners carrying simple interest of 5% p. a. and repayable on completion of seven years from the date of release of power supply to the petitioner as a condition for the grant of power connection with contract demand of 2000 KVA, communicated to the petitioners under the 2nd respondents letter dated 5. 11. 1986. Further prayer has been made for issuance of writ of mandamus commanding the respondents to grant to the petitioners power connection with contract demand of 2000 KVA for proposed Unit No. 2 without insisting or demanding payment of loan deposit amount of Rs. 12 lacs as set out in paragraph 7 of the respondents letter dated 5. 11. 1986, annexure b.
( 2 ) THE first petitioner is a Company limited by shares and registered at No. 4140 with the Registrar of Companies, Gujarat, under the provisions of the Companies Act, 1956, having its registered office at Anand Cloth Market, Sarangpur, Ahmedabad. The second petitioner is a shareholder as well as joint Managing Director of the company. The company has its factories at plots No. 4, 5 and 6, G. I. D. C. Estate, for manufacturing alloy/steel castings and grinding media balls and foundry industry. The petitioner company is running its Unit No. 1 as small scale industry in plot No. 4 and is having power connection with demand of 480 KVA from the Board. The petitioner-company has set up its Unit No. 2 in plot No. 6 for the manufacture of all types of alloys and special steel castings to implement D. G. T. D. licence granted to the petitioner by the Central government. The petitioner-company has installed in its Unit No. 2, new Induction furance of 3 metric tonnes capacity of 1500 KW rating at a cost of Rs. 60 Lacs.
( 3 ) THE respondent-Board has been constituted under Sec. 5 of the Electricity (Supply) Act, 1948, (hereinafter referred to as the Act ). The Board is a body corporate having perpetual succession and common seal, with power to acquire and hold property and capable of suing and being sued by its name notified under Sub-sec. (1) of Sec. 5 of the Act. The petitioner states that the Board is the state within the meaning of Art. 12 of the Constitution of India. The petitioner No. 2, by his letter dated 27. 11. 94, communicated to the board interest in reserve of power of 2000 KVA. That letter has been replied by the board vide its letter dated 11. 12. 1984 and the petitioners were called upon to pay Rs. 12,250/- within one month towards power reserve deposit for reservation of power of 2000 KVA. The petitioner-company vide its letter dated 15. 1. 1985 forwarded to the respondents, application for H. T. power supply of 2500 KVA as the demand of power increased. The Board called upon the petitioner to pay Rs. 13,500/- within one month towards power reservations deposit. However, the petitioner has subsequently informed the respondent that the power allotted of 2000 KVA may be sanctioned for the petitioners Unit No. 2. The amount of Rs. 12,250/- has been paid by the petitioner by bank Draft dated 15. 10. 1985 and other relevant documents and information has also been submitted to the Board. The respondents, by their letter dated 10. 3. 1986 informed the petitioner that the Board was instructing its Executive Engineer (ONM) at Kadi to examine feasibility of providing H. T. power to the petitioner-company, the petit
