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CASE NO.: Appeal (civil)  1425 of 2001

PETITIONER: THE TRANSMISSION CORPORATION OF A.P. & ORS

RESPONDENT: M/S. HEMSON STEELS ALLOYS PVT. LTD. & ORS

DATE OF JUDGMENT: 19/02/2008

BENCH: H.K. SEMA & MARKANDEY KATJU

JUDGMENT: JUDGMENT O R D E R

CIVIL APPEAL NO.1425  OF 2001 WITH  C.A.NOS.1469 and 1470 OF 2008 ARISING OUT OF  SLP(C)NOS.3088 AND 3991 OF 2004

       Leave granted in SLP(C)Nos.3088 and 3991 of 2004.         We have heard the parties at length.         In these three appeals a common question of law and fact has arisen.  For the  sake of brevity we are taking facts from C.A.No.1425 of 2001.         The appellant the Transmission Corporation of A.P.  is a statutory authority  constituted under Section 5 of the Electricity (Supply) Act, 1948 (hereinafter as ’the  Act’). In exercise of power under Section 49 of the Act  by an order dated 20.09.1975  the Corporation allowed certain concessions to the respondents.  Paragraph 7 of the  concessions reads : "7.  Concession for New Industries..... A rebate of 25% on Demand  and Energy charges for specified H.T. Industries will be allowed for the  first three years from the date of their going into production."         It is alleged that the respondents did not go into  production within   the   stipulated time. Consequently,  the aforesaid concession was withdrawn on  14.10.1987.  Undisputedly, the respondent Company, namely, M/s. Hemson Steels  Alloys Pvt. Ltd. went into commercial production with effect from 09.07.1988.  The  respondent in C.A.No1470/2008 arising out of SLP(C)No.3991/2004, namely, Shanti  Castings went into commercial production on 09.01.1988.   It is, therefore,  contended strenuously by Mr. Shanti Bhushan, learned senior counsel appearing for  the appellants that since the respondents Company did not go into production  within three years period the Corporation has validly withdrawn the concession on  14.10.1987.         Per contra, Mr. P.S. Narasimha, learned coounsel appearing for the  respondent in C.A.No.1470/2008 arising out of SLP(C)No.3991/2004 contended that  as the State has exercised power under Section 78A of the Act, the Board was  incompetent to withdraw the concession and therefore the impugned order of  withdrawal of concession was not tenable in law.           Mr. Shanti Bhushan, learned senior counsel, appearing for the appellants has  invited our attention to the provision of Section 49 of the Act where it is provided  that the Board has power to grant such concession. By our order dated 28.11.2007  we directed Shri H.S. Gururaja Rao, learned senior counsel appearing for the State  to file affidavit within two weeks to clarify whether the order 27.07.1989 passed by  the State Government was passed in exercise of power under Section 78A of the  Electricity (Supply)Act, 1948 or not.          Pursuant to our aforesaid direction the State has filed counter-affidavit. It is  explained in paragraph 9 of the affidavit that the State of Andhra Pradesh has not  issued any directive to the A.P. State Electricity Board in respect of 25% tariff  concession to certain industries in the State of Andhra Pradesh. It is also stated that  G.O.Ms. No.375 dated 28.8.1985 & G.O.Ms. No.379 dated 27.7.1989 do not  constitute directives to the Board under Section 78A of the Electricity (Supply) Act,  1948.

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       In view of the clarification in the State’s affidavit, we could have disposed of  these appeals on their own merits.  However, it has been brought to out notice the  judgment of the Division Bench of this Court rendered in earlier C.A.No.9746/1996  disposed of on 07.01.1997 in the case of A.P. State Electricity Board and Others vs.  M/s. V.K. Ferro Alloys Industries Pvt. Ltd. The Division Bench of this Court having  considered the G.O.Ms No.379 dated 27th July, 1989 has recorded the following  conclusion : "       We have heard learned counsel for the parties and perused  various Government Orders issued in relation to the grant of 25%  concession in electricity tariff including G.O.Ms No.379 dated 27th  July, 1989.  A perusal of the said G.O.Ms unmistakably shows that the  concession was withdrawn only after 27th July, 1989 and since the  respondent company had admittedly gone into commercial production  prior thereto, it was entitled to the 25% rebate in the tariff and the  withdrawal of the concession on 27.7.1989  did not apply to the  respondent industry.  The High Court, therefore, rightly allowed the  writ petition.  No case for interference is made out.  The appeal fails  and is dismissed."         In our view the two Judge Bench of this Court did not go into the core question  as to whether concession was accorded by the State in exercise of the direction as  provided under Section 78A of the Act or it was accorded by the Board in exercise of  its power under Section 49 of the Act.   In our view, therefore, this point  deserves to  be considered by a larger Bench.  Place the matter before Hon’ble Chief Justice for  appropriate orders.