At the time of hearing of present petition, learned advocate for the petitioner made reference of order dated 19.6.2012 in Special Civil Application No.18007 of 2011 claiming that the issue involved in present petition is similar to the issues involved in the said writ petition being Special Civil Application No.18007 of 2011 and by order dated 19.6.2012, the said writ petition has been admitted.
2. On the other hand, learned advocate for the respondent relied on the reply affidavit filed by the respondent No.1 wherein reference of the decision by Apex Court in the case between M.P.Electricity Board Vs. Shiv Narayan in Civil Appeal No.1065 of 2000 is made and she submitted that the observations made by the Apex Court in the said decision are relevant and applicable in present case also.
3. In view of the said submission by learned advocate for the respondent, papers of Special Civil Application No.18007 of 2011 were called for and the hearing of present petition was deferred to second session in presence of learned advocate for the petitioner.
4. In the second session, papers of the writ petition being Special Civil Application No.18007 of 2011 have been received from the registry. On perusal of the record, it is noticed that at the time of hearing of the said writ petition, the decision of the Apex Court (as referred to hereinabove), was neither referred to nor relied on by the respondent. The respondent has not filed any reply affidavit also in the said petition though notice was issued under order dated 16.12.2011 whereby notice was made returnable on 11.1.2012. Since, despite passage of almost 5 months respondent failed to file any reply and also since any submission relying on the decision of the Apex Court were not made, the order dated 19.6.2012 came to be passed in the said writ petition being Special Civil Application No.18007 of 2011. However, on consideration of the decision of the Apex Court, it prima facie appears that the issue raised by the petitioner in present petition as well as in the said other writ petition being Special Civil Application No.18007 of 2011 has been considered in the decision of the Apex Court, of course, if the respondent company can establish that the expression / words used in the relevant tariff entry prescribed in the tariff of the respondent company is similar to the expression / words used in the tariff entry of the appellant before the Apex Court.
4.1 If the two tariff entries are similar, then, the order admitting the writ petition being Special Civil Application No.18007 of 2011 may have to be recalled and both the writ petitions may have to be taken up for further hearing in light of the decision of the Apex Court. However, such order, if necessary, will be passed after considering petitioner's submission.
4.2 So as to consider the aforesaid aspect and to grant time to the petitioner to consider the decision of Apex Court and also to enable the respondent company to place on record the relevant tariff entry, hearing of present writ petition is adjourned to 9.7.2012.
Office is directed to list present writ petition along with Special Civil Application No.18007 of 2011 on 9.7.2012. The respondent in Special Civil Application No.18007 of 2011 will do well to file reply in Special Civil Application No.18007 of 2011.
S.O.
to 9.7.2012.
A copy of this order shall be placed on record of Special Civil Application No.18007 of 2011.
(K.M.Thaker, J.) kdc Top