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2015 Supreme(MP) 733
MADHYA PRADESH HIGH COURT
Sujoy Paul, J.
Shri Ram Sharma Stone Crushers (M/s.) v. State of M.P. and others
Writ Petition No.5555 of 2010 with Writ Petitions No.254 of 2005, 4614 of 2010 and Writ Petition No.7537 of 2010;
Decided on 28.9.2015.
Ms. Nandita Dubey for petitioners in Writ Petition No.5555/2010 and
Writ Petition No.7537/2010;
Santosh Agrawal for petitioner in Writ Petition No.254/2005;
Sanjay Sharma for petitioner in Writ Petition No.4614/2010;
Vivek Jain for respondents/State.
Headnote:(1) Electricity Duty Act, 1949 (M.P.) -- S.3(1), Part B, Explanation (b) -- Mines Act, 1952 -- S.2(1)(j)(xi) -- mine and adjacent -- meaning of -- machinery situated at Survey Nos.440 and 441 -- mine situated at Survey No.319 -- mine and machinery -- both situated in same village -- once the mine and machinery in question are situated in same locality -- it falls within the ambit of mine.
Held : As per the petitioner's own pleadings, the mine and the crusher in question are in the same village. Thus, there is no difficulty in holding that both are in the same locality. In view of this Division Bench judgment wherein word 'adjacent' is interpreted, the judgment of single Judge in Shri Krishan Mehrotra (supra), is of no assistance to the petitioner.
In explanation (b) while defining 'mine' the expression ' means and includes' has been used which has to be considered as exhaustive. In other words, the definition will embrace only what is comprised within the ordinary meaning of 'mine' part together with what is mentioned in the inclusive part of the definition. Thus, in my view, the definition of “mine” is wide enough to include the petitioner firm. Miscellaneous Petition No.2821/1988 (DB) relied on. Writ Petition No.3154/2004 distinguished. AIR 1953 SC 244 referred to.
(2) Electricity Act, 2003 -- S.56(2) -- M.P. Electricity Supply Code, 2004 -- Cl.10.19 -- demand of enhanced electricity duty at rate of 40% instead of 8% -- applicability of provisions of section 56(2) of Act and clause 10.19 of Code -- these provisions deals with an arrear of charges for electricity supplied -- in does not cover duty/tax -- provisions not attracted.
Held : The classification made under section 3 of the Act has a clear nexus with the object sought to be achieved. Section 56 aforesaid and clause 10.19 of the Code do not include duty/tax. It talks about such sum, which are due to licensee/Electricity company. The licensee is merely a collecting agent which collects the duty from consumer and pass on the same to State Government.
Thus, duty/tax is not as per clause 10.19 of the Code and section 56(2) of the Act of 2003. Thus, those provisions are of no help to the petitioner.
(3) Evidence Act, 1872 -- S.115 -- promissory estoppel -- applicability of principle -- it does not apply against the provisions of Law. [Paras 16 & 17
¼1½ fo|qr 'kqYd vf/kfu;e] 1949 ¼e-iz-½ && /kkjk 3¼1½ Hkkx [k] Li"Vhdj.k ¼[k½ && [kku vf/kfu;e] 1952 && /kkjk 2¼1½¼´k½¼xi½ && [kku vkSj ik'oZLFk && dk vFkZ && e'khujh losZ{k.k la[;kad 440 rFkk 441 ij fLFkr && [kku losZ{k.k la[;kad 319 ij fLFkr && [kku vkSj e'khujh && nksuksa mlh xzke esa fLFkr && tc [kku vkSj iz'uxr e'khujh mlh ifj{ks= esa fLFkr gS && ;g [kku dh ifjf/k esa vkrh gSA
vfHkfu/kkZfjr % Lo;a ;kph ds vfHkopuksa ds vuqlkj [kku vkSj iz'uxr dksYgw mlh xzke esa gSaA bl izdkj] ;g vfHkfu/kkZfjr djus esa dksbZ dfBukbZ ugha gS fd nksuksa mlh ifj{ks= esa gSaA [kaM U;k;ihB ds bl fu.kZ; ds n`f"Vdks.k ls ftlesa 'kCn ^layXu* dk fuoZpu fd;k x;k gS],dy U;k;ihB dk Jh Ñ".k esgjks=k ¼iwoksZDr½] dk fu.kZ; ;kph dks lgk;d ugha gSA
Li"Vhdj.k ¼[k½ esa ^[kku* dks ifjHkkf"kr djrs gq, vfHkO;fDr ^ls vfHkizsr vkSj lfEefyr* iz;qDr dh xbZ gS ftldk ifjiw.kZ gksus ds :i esa fopkj djuk gksrk gSA nwljs 'kCnksa esa] ifjHkk"kk dsoy ^[kku* Hkkx ds lk/kkj.k vFkZ ds Hkhrj lekfo"V ds lkFk&lkFk tks ifjHkk"kk Hkkx esa lfEefyr mfYyf[kr gS mls lfEefyr djsxhA bl izdkj] esjh jk; esa] ß[kkuÞ dh ifjHkk"kk ;kph dh QeZ dks lfEefyr djus ds fy, dkQh foLr`r gSA fofo/k ;kfpdk Ø-2821@1988 ¼[kaM U;k;ihB½ voyafcrA fjV ;kfpdk Ø-3154@2004 izHksfnrA , vkb vkj 1953 ,l lh 244 fufnZ"VA
¼2½ fo|qr vf/kfu;e] 2003 && /kkjk 56¼2½ && e-iz- fo|qr iznk; lafgrk] 2004 && [kaM 10-19 && 8% ds ctk; 40% dh nj ls of.kZr fo|qr 'kqYd dh ek¡x && vfèkfu;e dh /kkjk 56¼2½ rFkk lafgrk ds [kaM 10-19 ds mica/kksa dk ykxw gksuk && ;s micaèk iznk; dh xbZ fo|qr ds izHkkj.k ds cdk;k ds fy, fopkj djrs gSa && ;g 'kqYd@dj lfEefyr ugha djrk && mica/k vkdf"kZr ughaA
vfHkfu/kkZfjr % vf/kfu;e dh /kkjk 3 ds v/khu mikftZr djuk pkgs x, mn~ns'; ds lkFk Li"V oxhZdj.k fd;k x;k gSA mi;qZDr /kkjk 56 vkSj lafgrk dk [kaM 10-19 'kqYd@dj dks lfEefyr ugha djrkA ;g ,slh jde ds fo"k; esa dgrk gS] tks vuqKfIr/kkjh@fo|qr daiuh dh cdk;k gSA vuqKfIr/kkjh dsoy ek= olwy djus okyk vfHkdrkZ gS tks miHkksDrk ls 'kqYd olwy djrk gS vkSj mls jkT; ljdkj dks gLrkarfjr djrk gSA
bl izdkj] 'kqYd@dj lafgrk ds [kaM 10-19 vkSj 2003 ds vf/kfu;e dh /kkjk 56¼2½ ds vuqlkj ugha gSA bl izdkj] ;s mica/k ;kph dh dksbZ lgk;rk ugha djrs gSaA
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 115 && opu foca/k && fl)kar dk ykxw gksuk && ;g fof/k ds mica/kksa ds fo#) ykxw ugha gksrkA ¼iSjk 16 ,oa 17
1. In view of commonality of issues involved, on the joint request, these matters were analogously heard and decided by this common order. This order will dispose of Writ Petition No.5555/2010, Writ Petition No.4614/2010, Writ Petition No.7537/2010, Writ Petition No.254/2005. Facts are taken from Writ Petition No.5555/2010.
2. The case of the petitioner is that it is a proprietorship firm owned and represented by Shri Ram Niwas Sharma. The petitioner firm is engaged in the business of crushing of black stones at village Mou, District Gwalior. A high tension electricity supply agreement was executed on 1.3.2006 between petitioner and respondent No.2 for sanction of 300 KVA power at 11 KV. As per this agreement, the electricity energy was supplied in bulk at village Mou, District Gwalior. As per said agreement, the petitioner was required to pay charges for use of electricity energy every month.
3. Ms. Nandita Dubey, learned counsel for the petitioner, urged that at the time of taking connection, the petitioner was informed that apart from tariff, duty at the rate of 8% will be charged from him. Initially they started charging duty at the rate of 8%. By taking this Court to various bills, it is urged that all the dues were paid to the respondents. Relevant column shows that there was no arrear due in relation to any entry. It is submitted that in June, 2010, the petitioner received a bill wherein duty was charged at the rate of 40% instead of 8%. On contacting the respondents, petitioner gathered that it is enhanced as per letter of Chief Engineer (Electricity) dated 30.3.2010 (Annexure R-3). It is submitted that on the strength of this letter only, the respondents have enhanced the duty to the tune of 40%. She submits that the said action is wholly arbitrary and runs contrary to principles of 'promissory estoppel'. She submits that respondents have erred in passing order dated 17.7.2010 whereby they recalculated the duty at the rate of 40% retrospectively and initiated recovery.
4. Ms. Dubey further submitted that since petitioner had already paid duty at the rate of 8%, respondents decided to recover the difference i.e. 40% -8% = 32%. Ms. Dubey urged that the said action of respondents is arbitrary and without any legal basis. She submits that as per section 56(2) of the Electricity Act, 2003 read with clause 10.19 of M.P. Electricity Supply Code, 2004 (Code), recovery beyond the period of two years from the date when such sum became due is impermissible. She submits that petitioner, by no stretch of imagination, can be treated as “mine”. She submits that crusher in question is situated at survey Nos.440 and 441 of village Mou. It is about a distance of 5 Kms. from the mine which was owned by petitioner's father. She further contended that in view of judgment of this Court in Writ Petition No.3154/2004 (Shri Krishan Mehrotra v. M.P. State Electricity Board and others), the respondents cannot treat the petitioner as 'mine' nor petitioner's crusher can be treated to be adjacent to a mine. She relied on (2004)1 SCC 139 (State of Orissa and others v. Mangalam Tiber Products Ltd.) in support of her contention that assurance initially extended but subsequently curtailed will attract principle of promissory estoppel against Government. Reliance is also placed on (1974)2 SCC 293 (Dhan Singh Ramkrishna Chaudhari and others v. Laxminarayan Ramkishan and another).
5. Per Contra, Shri Vivek Jain, learned counsel for the respondents submits that whole action is based on M.P. Electricity Duty Adhiniyam, 1949, which was amended w.e.f. 15th May, 1995 (Annexure R-1). Duty at the rate of 40% is not charged on the strength of letter dated 30.3.2010 (Annexure R-3). It is charged on the basis of statutory provision of the Adhiniyam 1949, amended in 1995. He relied on various paragraphs of the return and definition of 'mine' given in the said Adhiniyam of 1949 and in the Mines Act, 1952. It is urged that petitioner's crusher is adjacent to the min
