JUDGMENT R.P. Misra and Shishir Kumar, JJ.
1. The present writ petition has been filed for quashing the recovery proceedings dated 26.6.2005 (Annexure 14 to the writ petition). Further issue a writ in the nature of mandamus directing the respondents not to demand and recover the amount from the petitioner. Further a relief was sought for quashing the order dated 2.6.2005 relating to the petitioner (Annexure 2 to the supplementary affidavit).
2. The facts arising out of the present writ petition are that the petitioner is a unit of National Textile Corporation, U.P. (hereinafter referred to as NTC) which is a Government of India undertaking, owned and managed by the Ministry of Textiles and through National Textiles Corporation Ltd., New Delhi. The Bijli Cotton Mill being spinning unit exclusively manufacturing cotton yarn. However, due to beyond its control the production activities of the petitioner's mill have come to grinding halt from 1992. For the purposes of the fact as stated in the writ petition are that the Act No. 57 of Sick Textile Undertaking Nationalization Act 1974 a number of textile mills through out the country were taken over as nationalized and the Ministry of Textiles revived the old sick mills throughout the country'. Similarly 11 mills in U.P. were acquired and were also taken over and were being managed by NTC. U.P. Ltd. including the petitioner's mills which became sick and the manufacturing activities of the mills came to halt with effect from 1992. the petitioner Bijli cotton Mill was engaging approximately 1000 work force. In the year 1993, the management of national Textile Corporation, New Delhi, referred the matter for employees towards rehabilitation of the sick mill to BIFR under "The Sick Industrial Companies (Special Provision) Act 1986 by way of Reference No. 504 of 1993." After a long exercise and hearing the representatives of workers, Trade unions, Government and other Corporations and financial institutions, the BIFR vide notification dated 5.2.2000 sanctioned a rehabilitation scheme for all the sick mills.
3. Out of 11 Textile Mills situated in State of U.P., out of 9 could not be rehabilitated or revived, as they were not economically viable. Only two NTC Mills known as Swadeshi Cotton Mill, Naini and Swadeshi Cotton Mill Maunath could be revived, Accordingly, the NTC took follow up steps for closure of a mill in accordance with Section 25O of the Industrial Disputes Act with effect from 31.3.2004 and also floated a liberal VRS to give an opportunity to its employees and almost 100% employees of these nine mills accepted the VRS and voluntarily left the job. In such a situation, the relationship of master and servant automatically came to an end after the closure. After the closure, plant, machinery, building of nine mills which were unviable were sold and out of the finance earned from the same, strictly in accordance with the rehabilitation package, the two mills situate in Naini and Maunath are being revived after being complete modernization.
4. With regards to the petitioner's mill the electricity connection was disconnected on 3.5.1999 and on 15.11.2003, the electricity bill amounting to Rs. 88,02,577.25 was raised on which Rs. 33,52,251.18 was the principle amount and Rs. 54,50,326.07 was demanded as late payment surcharge. Petitioner made a representation to the managing Director, U.P. Power Corporation Ltd., Lucknow, respondent No. 1 on 25.2.2004 and 9.4.2004 referring the earlier negotiations held in this matter regarding the liability of payment, if at all, would of actual -amount of energy consumed by the petitioner's mill and the amount towards penalty, a late payment surcharge etc. was required to be waived. Copies of the representations have been filed as Annexures 2 and 3 to the writ petition. Subsequently, another representation was made on 12.4.2004 in which attention of respondent No. l was drawn to the directions regarding Rehabilitation Scheme sanctioned by BIFR in respect of electricity charges which was to be waived of. The respondent No. l was also informed by letter dated 22.5.2004 about the various representations and discussions held in the matter and has desired admitted liability of Rs. 10.70 lacs to be deposited and thereafter the matter would be referred for decision to CMD, UP Power Corporation, Lucknow. A meeting was held on 17.10.2004 under the chairmanship of Managing Director, Southern Electricity Distribution Corporation at Agra in which the Chairman of the National Textiles Corporation, New Delhi had also participated and had taken a stand that only principle amount i.e. Rs. 33.52 lacs was required to be paid and the amount of Rs. 3.5 crores relating to surcharges of late payment is to be made. A copy of the same has been filed as Annexure 6 to the writ petition. Thereafter a notice dated 27.12.2004 was issued by the Executive Engineer, Electricity Division-II, Hathras calling upon the petitioner to pay Rs. 3,50,98,199.55. It has been submitted by the petitioner that thereafter various representations dated 7.3.2005, 10.3.2005, 8.4.2005,2.5.2005 and 6.5.2005 were submitted by the petitioner. In the last representation dated 6.5.2005, the petitioner reiterated the waiver of surcharge and penalty towards electricity dues and contended that as per direction contained in rehabilitation scheme sanctioned by BIFR, the surcharge towards electricity be waived and specific attention was drawn towards Section 5.03 (V). A copy of the same has been filed as Annexure 8 to the writ petition. It has been submitted by the petitioner that as the rehabilitation scheme sanctioned by BIFR in exercise of power under the Sick Industrial Companies (Special provision) Act 1985, the demand for payment of Rs. 3.85 crores is wholly illegal. It is not disputed that the petitioner is a sick industrial company within the meaning of Section 2-O of the Act and a reference was made for rehabilitation to the BIFR exercising the powers under Section 17 of the Act to take a decision for the revivial of the sick industrial companies and prepared a scheme under Section 18 of the Act. Under Section 19 arbitration package has to be prepared involving a remedial measure and under Section 19(3)(a) once the scheme is sanctioned, the follow-up action is required to be taken by the financial institutions and other institutions. Even the BIFR has the power to make an arrangement by which the wages dues can be reduced and substantially waived off.
5. It has further been stated that scheme of BIFR in the Reference Case No. 504 of 1993, the National Textiles Corporation (Uttar Pradesh) Ltd. (NTCUPL) contain Clause 5.03, which was considered by the State Government and Clause 5.04 clearly states regarding waiver of interest and damages in respect of arrears and current dues. Under Section 22 of the Sick Act, no recovery can be made. As the State Government was a party in the rehabilitation scheme and the view of all the statutory creditors were considered and were given an opportunity by the BIFR. The present dispute is between the Public Sector Corporation which is owned and managed by the Ministry of Textiles and the U.P. Power Corporation which the a State Government Corporation. Thus, the dispute could have been amicably resolved by referring the matter to the Cabinet Sub-Committee of Central Government as held in 1992(2) SCC 432. Once the BIFR sanctioned the scheme then there was no scope to hear any institution and the damages arising out of the electricity dues could not be added and charged from the petitioner. There is no dispute that BIFR while sanctioning the scheme and according to it only payment of actual electricity dues are required to be paid and not any penalty of any kind. As it was agreed between the parties that only actual consumption of electricity was liable to be paid by the NTCUP but in spite of the aforesaid fact, the respondent No. l, is continuing to insist the payment of Rs. 3.50 crores. The Power Corporation has taken a different stand. Earlier the demand was Rs. 54 lacs of which 33.2 lacs was the principle amount and 54.50 was the late payment charges.
6. It has been submitted on behalf of the petitioner that the Executive Engineer, U.P. Power Corporation is not a competent authority and cannot issue a recovery under Section 3 of the U.P. Government Electricity Dues Regulatory Act, 1958. Further a letter issued by the A.D.M. Revenue Hathras, which is contrary to Section 22 of the Sick Act. It has further been submitted on behalf of the petitioner that the petitioner has been discriminated as regarding the Lord Krishna Textile Mill, Saharanpur, which is also a unit of the NTC the condition mentioned in the rehabilitation scheme has been accepted and electricity charges to the tune of Rs. 24.24 lacs only which is the amount towards the actual consumption of electricity was accepted and other charges like late payment surcharge etc. have been waived. The petitioner has brought on record the letters dated 18.6.2003 and 20.6.2003 (Annexures 10 and 11 to the writ petition).
7. It has further been submitted that once the rehabilitation scheme has been accepted and which is being implemented, the Corporation has got no jurisdiction to nullify the mandatory directions contained in the Rehabilitation Scheme sanctioned under Sick Industrial Companies Act, 1985. The Hon'ble Apex Court in Rishabh Agro case has held that provisions of Section 22 of the Sick Industrial Companies Act are applicable even against the suit filed against the guarantor of the loan and the law has been settled in Real Value Appliances case . Even the letter of A.D.M. on the basis of the report of the Executive Engineer has considered and taken a stand that the certificate issued by the Electricity Board was to be tune of Rs. 19,92,521.00. Against the aforesaid recovery the petitioner has filed a Writ Petition before this Court and an interim order was granted but as the recovery certificate dated 27.12.2004, the amount has become 3.50 without disclosing its break-up. Thereafter on 31.1 2005, amount of Rs. 68,10,055.92 plus interest was issued and finally a recovery certificate to the tune of Rs. 3.50 crores was issued.
8. It has been submitted on behalf of the petitioner that the recovery against the petitioner which has been issued is contrary to the BIFR Scheme. The respondent No. l is taking a contrary stand in the matter of mill i.e. Lord Krishna Textile Mill, Saharanpur. As the petitioner is the Central Government Corporation and as a Government Company is protected under Sick Industries Act and there is a Rehabilitation Scheme which is being fully acted upon in its letter and spirit. Nine mills have been closed, their property, land, plant and machinery have been sold.
9. It has been submitted on behalf of the petitioner that the power connection of the petitioner was disconnected on 3.5.1999 and vide bill dated 15.11.2003 Rs. 33,52,251.00 was the principal amount and Rs. 54,50,326.00 was the late payment surcharge. The total amount was Rs. 88,02,577.00. It has been admitted by the respondents that actual consumption was to the tune of Rs. 33,52,251.00. As such, there was no justification to increase the delayed surcharge from Rs. 54.50,326.00 on 15,11.2003 then increased on 17.7,2004 within nine months. The petitioner has brought on record the scheme which according to the petitioner provides in Clause 5.03 which a general condition and in Clause 5.04 particular conditions and directions to the Electricity Board and in view of the aforesaid fact, it has been submitted that the interest damages in respect of arrears wherever, the mills are situated would be written of. The relevant clauses are being quoted below:
Clauses 5.03 and 5.04 of the written submission given by Sri Ranjit Saxena. 5.03- State Government (Uttar Pradesh)
i) To declare NTCUPL and its mills as Relief Undertaking for the purpose of granting reliefs concessions including sales tax holiday deferment etc.
ii) To approve without any condition the sale of surplus land properties of NTCUPL and agree to conversion of its identified land into Commercial residential land use and sale thereof, exempting conversion charges and sales lax on sale of surplus machinery scrap subject to the master plan.
iii) To grant necessary clearances approvals pertaining to closure of unviable mills activity and to extend necessary support in this regard.
iv) To grant permission for sale of surplus leasehold freehold land identified at various units Urban Land Ceiling Act (ULCA) and give exemption from payment of stamp duty thereof. The stamp duty would be paid by the purchaser of the land and not by the company.
v) To waive the interest and damages on the electricity, water and municipal dues and accept payment of principal amount only during the year 2001-02,
vi) To exempt the company from payment of sales tax on the sale of scrap and other material rendered surplus.
5.04- Kanpur Electricity Board/State Electricity Board/State Government Power
i) To writ off interest and damages in respect of arrears current dues of the company to Kanpur Electricity Board or to any other Electricity Authority in whose jurisdiction the nulls were located.
ii) To ensure to supply the electricity as required continuously regularly during the period of rehabilitation.
10. Further it has been submitted on behalf of the petitioner that the surcharge is nothing but is damages of which the Power Corporation has to waive off. The stand taken by the respondents that interest and damages have been waived up for year 2001-2002 only is not correct. The scheme has come to existence only on 5.2.2002 further the waiver of interest and damages in general terms its recovery taking place during the year 2001-2002. Clause 5.04 of the scheme is more specific and is applicable in the present case. If the waiver of damages is only for the one year then the rehabilitation has no meaning. In AIR 1961 Supreme Court 1107, page 1111 and 1990 Supreme Court, 152 the Apex Court has held that the construction which reduces the statute to futility has to be accepted and the interpretation should be as to made it effective and operative. The statute must be read as a whole which is a settled principle of interpretation of statute. The recommendation of BIFR are made to revive and to rehabilitate the undertaking. Rehabilitation Scheme is the life and sole focus of the Sick Industrial Companies (Special Provisions) Act, 1985. Chapter III of the said Act provides making a reference under Section 15 and after inquiry under Section 16 scheme is prepared and sanctioned which includes financial reconstruction. According to Section 18(8) of the sanctioned scheme which is binding including to the company as well as creditors, guarantors, reliance has been placed upon a judgment reported in 2006 (3) SCC, 604 NTC (IDA Employees Association v. Union of India). The Apex Court has held that scheme of BIFR has to be implemented in the case of NTC. The counsel for the petitioner has cited and placed reliance upon various judgments of the Apex Court and has stated the following judgments.
1.
2. 2006(3) LLR 163
3. 2000 (5) SCC 319
4. 2000 (5) SCC 545
5.
6.
7.
8. In view of the aforesaid fact, the petitioner submits that as the scheme of Industrial Companies (Special Provisions) Act 1985 is a special Act and has got an over riding effect even in one of the cases the Apex Court has held that even wages cannot be recovered if the unit has been declared sick. Section 22 of the Sick Act gives a protection to the sick unit and no recovery can be made and provides suspension of all legal proceedings against the Company when the scheme is under preparation. It has further been submitted that recommendation of the BIFR has to be implemented and the state is bound to implement that.
11. The further submission has been made by the petitioner that scheme of BIFR dated 22.2.2002 the reference in Clause 1.02 at page 12 of the name of 11 mills of NTC has been disclosed which includes Lord Krishna Textiles and Bijli Cotton Mill, the petitioner. All these 11 mills, matter was referred to the NTC for rehabilitation in Reference Case No. 504 of 1993 and the scheme was sanctioned under Section 18(4). The further contention of the petitioner is that as both the mills were included and the benefit has been given to the Lord Krishna Textiles but the same has not been given to the petitioner. As such, the petitioner has been discriminated. The Power Corporation admittedly accepted the payment of actual consumption charges relating to Lord Krishna Textiles Mills to the tune of Rs. 24,24,770.00. it clearly goes to show that the Power Corporation has appreciated the rehabilitation scheme and accepted the payment of actual consumption of electricity in accordance with Clause 5.04 of the Rehabilitation Scheme but unfortunately the scheme was not accepted in the case of the petitioner. If the contention of the respondents is accepted then it will leave to only one conclusion that the stand of Power Corporation is discriminatory. Being Government Corporation, the Corporation has a Constitutional obligation being State within the meaning of Article 14 of the Constitution of India and has to Act fairly.
12. In view of the aforesaid fact, the petitioner submits that recovery against the petitioner is liable to be quashed.
13. On the other hand, Sri Ranjit Saxena, who appears for the Power Corporation has submitted by way of a counter affidavit that the petitioner's electricity connection was having combined load of factory and colony and the load was not segregated and due to this load audit objection came and bill of Rs. 14 lacs, Tariff difference was sent to the consumer. It was on 1.7.1980. The petitioner filed a Writ Petition No. 8048 of 1980. The writ petition was decided with an observation that the assessment was correct by the Corporation and directed to appoint the High Power Committee and in terms of High Court order dated 10.2.1986, the High Power Committee has also hold that the assessment was correct. In 1992, a bill was issued against the petitioner's company with late payment surcharge on the amount of assessment made by the concern division for Rs. 58,11,000.00 but due to the non payment of bill dated 8.7.1992 the electricity connection of the petitioner was disconnected on 8.8.1992. Subsequently, the petitioner's company filed a writ petition against the assessment bill dated 8.7.1992 in Writ Petition No. 8994 of 1993 with allegation that no opportunity of hearing was given by the High Power Committee. On 17.3.1993, the Hon'ble Court had passed an order and directed the petitioner's company to deposit a sum of Rs. 10 lacs and has further directed to restore the electricity connection of the petitioner but no interim order was granted in favour of the petitioner regarding the balance amount. On 6.2.1994, a notice under Section 3 was issued by the respondent amounting to Rs. 19.92 lac for the period of disconnection of electricity supply then again the petitioner filed a Writ Petition No. 7134 of 1994 and the Hon'ble Court has stayed the demand notice dated 6.2.1994. The petitioner's company has not paid the amount. The petitioner always challenge the demand notice issued by the respondents before the BIFR or before the High Court. The same amount was issued against the petitioner's Company, as such, surcharge was liable to be paid by the petitioner's company. On 8.7.1992 a demand bill was issued by the petitioner's company amounting to Rs. 58.11 lacs for the period of April 1973 to April, 1978 with late payment surcharge due on 8.7.1992. The total amount including surcharge due to March 1993 was Rs. 88,42,127.25. After the adjustment of Rs. 10 lacs, it was deposited by the petitioner's Company on the basis of the order passed by this Court on 17.3.1993.
14. It has been further contended on behalf of the respondents that the electric connection was permanently disconnected on 30.3.1999 but the petitioner's Company was liable to pay the late payment surcharge in terms of the tariff. Admittedly, no amount was paid by the petitioner's Company. A chart was issued to the respondents, which is annexed to the counter affidavit. On 25.8.2005, the Hon'ble Court had passed an interim order in favour of the petitioner with a condition that if the petitioner deposits a sum of Rs. 33,52,251.18p within a period of two months in compliance of the aforesaid order, the petitioner had deposited the said amount. By order dated 5.2.2002 in Board for Industrial and Financial Construction in Case No. 504 of 1993, gave the following decisions.
5.03 -State Government (Uttar Pradesh)
i) To declare NTCUPL and its mills as a Relief Undertaking for the purpose of granting reliefs/concessions including sales tax holiday/deferment etc.
ii) To approve without any condition the sale of surplus land properties of NTCUPL and agree to conversion of its identified land into Commercial/residential land use and sale thereof, exempting conversion charges and sales tax on sale of surplus machinery/scrap subject to the master plan.
iii) To grant necessary clearances approvals pertaining to closure of unviable mills activity and to extend necessary support in this regard.
iv) To grant permission for sale of surplus leasehold freehold land identified at various units under Urban Land Ceiling Act (ULCA) and give exemption from payment of stamp duty thereof. The stamp duty would be paid by the purchaser of the land and not by the company.
v) To waive the interest and damages on the electricity, water and municipal dues and accept payment of principal amount only during the year 2001-02.
vi) To exempt the company from payment of sales tax on the sale scrap and other material rendered surplus.
15. The late payment surcharge is neither a penalty nor compensation and payment of electricity is made and all terms used in the Electricity Act are too technical and late payment surcharge and minimum consumption guarantee is not a compensation or the interest and there was no interference of BIFR in this regard. It has further been submitted on behalf of the respondents that petitioner's company has never been fair with the respondents in payment of electricity dues. On the ground of non-segregation of load of colony and factory, there was an assessment of Rs. 14.75 lacs. The petitioner tiled a writ petition and the matter was referred to the High Power Committee and the High Power Committee has come to the conclusion that the bill which was issued that was justified and on 8.7.1992 a bill of Rs. 58.11 lacs was given for payment to the petitioner but the same has not been paid by the petitioner. The further submission has been made that the letter dated 5.2.2004 issued by N.T.C to the Chief Secretary, Government of U.P., Lucknow is self-speaking and in Para 4 which clearly shows that waiver is only in respect of the year 2001-2002.
16. The contention of the petitioner to this effect that it has been accepted by the respondents regarding payment of actual consumption, is not correct. It is apparent from the letter issued by the Executive Engineer, Electricity Distribution Division-1, Hathras, it was clearly mentioned that after depositing Rs. 10.70 lacs, the matter shall be referred to the Board of Directors. An effort was made by the petitioner's Company regarding waiver of late payment surcharge but, however, the Board of Directors took a decision against the petitioner.
17. It has further been submitted on behalf of the respondents that the contention of the petitioner to the effect that balance amount shows payable by the petitioner in March 1999, was increased in the month of November 1999, is not correct. The late payment surcharge of Rs. 54,50,326.07p was up to May 1993 and not March, 1999. The same has wrongly been mentioned in the letter-dated 10.6.2005. By this submission the petitioner wants to mislead this Hon'ble Court. The actual 54 lacs was balanced against the petitioner up to March 1993. It is not up to March 1999.
18. The reliance has been placed upon a judgment in L.M.L. Ltd. Kanpur v. State of U.P. and Ors. reported in 2001 (Allahabad) 321. On the basis of the aforesaid judgment the respondents submit that the Division Bench of this Court has clearly held that where the tariff has been approved by the Electricity Regulatory Commission, the consumers getting power supply in restricted hours will be liable to pay 15 % surcharge on demand as energy charges. A levy of surcharge in terms of tariff will be approved by the Commission, therefore, the liability cannot be denied by the consumer and the Division Bench of this Court has also held that levy of surcharge on the consumer is valid. Admittedly, the petitioner only on the basis of the order of this Court has paid some amount and from the record, it is clear that the petitioner has not paid the amount of consumption of electricity after 1993.
19. It is also been submitted that from the letter dated 5th February, 2004, the Chief Secretary has clearly stated that according to the direction issued by the BIFR, is only to waive the damages on electricity was during the period 2001-2002. It is not on the total amount due against the petitioner's Company. In Para 14 of the counter affidavit the fact to this effect has been stated in which it has clearly been mentioned that the outstanding dues against the petitioner towards the electricity charges are 33,52,251.00 and surcharge is to the tune of Rs. 3,85,55,979.00. The BIFR has only recommended for waiving the surcharge for the year 2001-2002 only. It has also been submitted that the contention of the petitioner to this effect that it was agreed between the parties to waive the surcharge is also not correct. The various documents, which have been annexed in the writ petition by the petitioner is not relating to the dues of the petitioner. It is relating to the Lord Krishna Textiles Mills Ltd. If Lord Krishna Textiles is given some benefit, the petitioner cannot claim the benefit on the ground that similar treatment be also given to the petitioner. It is also clear from the record that on the basis of the order the petitioner has deposited Rs. 10 lacs and rest of the recovery was stayed and the electric connection was directed to be reconnected. It is also to be mention here that after that the petitioner has not paid any amount, which was being consumed by the petitioner.
20. We have heard Sri Vijay Bahadur Singh, learned Senior Advocate, who appears for the petitioner assisted by Mrs. Kirtika Singh and Sri Mayank Agarwal, counsel for the petitioner and Sri Ranjit Saxena, who appears for the Power Corporation.
21. From the record, it is clear that the petitioner-Bijli Cotton Mill was taken over by the National Textiles Corporation U.P. Ltd. and became sick with effect from 1992 and the matter was referred to the BIFR as Case No. 504 of 1993, Out of 11 mills only two mills were rehabilitated and rest of the nine mills, it was directed to be closed. There is no dispute to this effect that the order and scheme submitted by the BIFR is binding but it has to be seen according to the guidelines mentioned by the BIFR. The record of the proceeding of the BIFR was produced before the Court, though some part was annexed with the counter affidavit but subsequently during the course of argument the complete scheme was produced before the Court. Sub-Clause 5 of Clause 5.03 states that "to waive the interest and damages on the electricity, water and municipal dues and accept payment of principal amount only during the year 2001-2002." Clause 5.04 states as under:
5.04- Kanpur Electricity Board/State Electricity Board/State Government Power
iii) To write off interest and damages in respect of arrears/current dues of the company to Kanpur Electricity Board or to any other Electricity Authority in whose jurisdiction the mills were located.
iv) To ensure to supply the electricity as required continuously/ regularly during the period of rehabilitation.
22. In view of the Sub Clause 1 of Clause 5.04 the petitioner submits that as there is a clause to write off interest and damages in respect of arrears of the Company, as such, the petitioner submits that surcharge can be said to be damages and according to the direction issued by the BIFR the respondents cannot charge the surcharge from the petitioner. The said contention of the petitioner is not acceptable in view of the Division Bench Judgment of this Court in L.M.L Ltd. (Supra) in which it has been held that levy of surcharge in terms of tariff has already been approved by the Commission and the liability cannot be denied by the Consumer and it has been held by the Division Bench that there is a provision for late payment surcharge, as such, it cannot be said that if a consumer has not made the payment in time, the surcharge is not payable. As contended by the petitioner that by letter dated 25th February, 2004, sent to the CMD Power Corporation, requested to confirm the amount of actual payment on the basis of actual energy consumed. Subsequently, a letter dated 9th April, 2004 was sent to the Managing Director for the same request. By letter dated 12.4.2004 which was also addressed to the Chairman cum Managing Director, U.P. Power Corporation Ltd. regarding granting relief and concession as per BIFR approved scheme in which request was made to re-assess the non segregation of assessment charges for one time settlement. As the petitioner submits that the Executive Engineer by letter dated 22.5.2004 has assured that the amount accepted by the petitioner may be deposited and then the matter will be referred to the Board for taking a decision regarding waiver of surcharge and other dues. A meeting of the officers of the power Corporation as well as the officers of the National Textiles Corporation was held on 17.7.2004 which clearly goes to show that the total amount due against the petitioner was 4crores 19 lacs eight thousand and twenty three. A request was made on behalf of the petitioner to waive the amount of surcharge then it was intimated to the petitioner that the matter will be referred before the competent authority for the said purpose and the decision taken will be intimated. The contention of the petitioner to this effect that the proposal sent by the petitioner was accepted is not correct. There is no document on record to show that request of the petitioner regarding waiver of surcharge in respect of Bijli Cotton Mills was ever waived.
23. Annexures 10 and 11 of the writ petition which relates to another mill that is Lord Krishna Textiles Mills Saharanpur, in that case proposal was accepted by the respondents. As the petitioner submits that as the Lord Krishna Textiles Mills is also one of the unit of the National Textiles Corporation and that was also before the BIFR and if the proposal of Lord Krishna Mill in view of the proposal of BIFR has been accepted the petitioner cannot be discriminated and the petitioner is also entitled for the same relief and as the actual consumption of electricity dues has already been paid by the petitioner, therefore, the demand notice is liable to be quashed.
24. We have perused the Clauses 5.03 and 5.04. It clearly shows that it was only to waive the interest and damages of electricity during the year 2001-2002. As regards the submission made by the petitioner to right of the interest and damages as mentioned in Clause 5.04 the same is not applicable in the case of the petitioner as the respondents are not charging any interest or damages due to the non-payment of electricity dues by the petitioner. It is the surcharge, which is permissible under the tariff. In case some consumer does not pay the charges of electricity consumed then there is a provision under the Electricity Act for charging surcharge on the said amount. In the present case also from the record it clearly appears that the petitioner has not paid any amount after 1992. Only some amount has been paid on the basis of the direction issued by this Court. Up to 8.7.1992 a demand bill was issued by the Corporation amounting to Rs. 58.11 lacs for the period of April 1973 to April, 1978 with late payment surcharge due to 8.7.1992. The Bill dated 8.7.1992, 6.2.1994, the total amount including surcharge due up to March 1993 was 88,42,127.25p. the said amount was after the adjustment of 10 lacs which was deposited by the petitioner's Company as per order dated 17.3.1993 but as subsequently the petitioner has not paid any amount in spite of the reconnection, the electricity connection of the petitioner was disconnected on 30.3.1999. Rs. 33,52,251.18p was deposited by the petitioner on 6.10.2005 on the basis of the order of the Hon'ble Court. As the petitioner states that this is the actual consumption by the petitioner. As there is a provision for charging late payment surcharge in case of default as held by the Division Bench judgment of this Court, neither be treated as penalty nor compensation.
25. The contention of the petitioner to this effect that interest and damages were waived by the BIFR, therefore, the petitioner is not liable to pay the surcharge, cannot be accepted.
26. As from the record, it clearly appears that the petitioner's company is not a regular pay master of the electricity dues to the respondent, which was being raised from time to time. Admittedly, the electricity connection of the petitioner was connected after the order of this Court but there is nothing on record to show that after the reconnection the petitioner has paid any amount to the respondents for the consumption which has actually been done by the petitioner's Company.
27. As regards, the discrimination as submitted by the petitioner that the scheme of BIFR dated 22.2.2002 the reference in the Clause 1.02 the name of the petitioner's company as well as the Lord Krishna Textiles Mill is also included and was referred by the National Textiles Corporation for rehabilitation vide its Reference Case No. 504 of 1993 and the BIFR has sanctioned scheme under Section 18(4) for all the mills and as the charges relating to Lord Krishna Textiles Mill amounting to Rs. 24,24,770.00 the principal amount which was paid by the aforesaid mill as principle amount and the rest has been waived in view of the scheme of BIFR dated 22.2.2002 and in the case of Lord Krishna Textiles Mills the Power Corporation after appreciation the rehabilitation scheme accepted the payment of actual consumption of electricity and acted in accordance with Clause 5.04 of Rehabilitation Scheme but in the case of petitioner's Company the same ha snot been accepted and as such, the petitioner has been discriminated because there was a same scheme by the BIFR.
28. This contention of the petitioner is not acceptable on the facts of the present case as this Court is not aware that what were the dues against the Lord Krishna Textiles Mills, what was the amount of surcharge and which was the date from which Lord Krishna Textiles Mills have not made payment to the Power Corporation. There is nothing on record to show regarding the total balance amount and from which date the dues against Lord Krishna Mill have been paid or not. In the present case, the petitioner's Company appears to be defaulter and is not making any payment and from 1992 they filed various writ petitions before this Court and obtained some orders and only on the basis of payment of some amount they were consuming the electricity without payment of further bills. From the record it shows that the two amounts which have been paid of 10 lacs each on the basis of the order passed by this Court and lastly the amount of 33 lacs which according to the petitioner is the actual consumption amount. Meaning thereby the petitioner has only paid about Rs. 53 lacs from 1992. In such circumstances, the petitioner cannot said that the petitioner is also entitled to get the same treatment as it has been given by the respondent-Lord Krishna Textiles Mill Ltd.
29. It is well settled by a catena of decisions of the Apex Court that though Article 14 of the Constitution forbids class legislation, it does not forbid reasonable classification for the purpose of legislation and when any rule or statutory provision is the same on the ground that it contravenes Article 14 of the Constitution, its validity can be sustained if two tests are satisfied, namely, the classification on which it is founded must be based on intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved and in other words there must be some rational nexus between the basis of classification and the object intended to be achieved. Broadly speaking, the concept of equality has inherent limitation arising from the very nature of guarantee under the Constitution and those who are similarly circumstanced are entitled to equal treatment. If there is rational classification consistent with the purpose for which such classification was made, equality is not violated. (See State of Mysore v. P. Narsingh Rao. , and Union of India and Ors. v. L.M. Havildar/Clerk SC Bagari ). In Ashuthosh Gupta v. State of Rajasthan , it was held as under:
The concept of equality before law does not involve the idea of absolute equality amongst all which may be a physical impossibility. All that Article 14 guarantees is the similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. Equality before the law means that among equals the law should be equal and should be equally administered and that the lies should be treated alike. Equality before the law does not mean that things which are different shall be treated as though they were the same. It is true that Article 14 enjoins that the people similarly situated should be treated similarly but what amount of dissimilarity would make the people disentitle to be treated equally is rather a vexed question....Mere differentiation or inequality of treatment does not 'per se' amount to discrimination within the inhibition of the equal protect ion clause. The State has always the power to make classification on a basis of rational distinctions relevant to the particular subject to be dealt with.
30. In view of the aforesaid fact and considering the contentions raised on behalf of the parties as it is apparent from the record that the petitioner is a regular defaulter by not paying the amounts as and when raised by the respondents, of the bills of the electricity consumed by the petitioner. In such circumstances, it cannot be carried out that the petitioner is also entitled for the same benefit which has been given to Lord Krishna Textiles Mill Ltd. Admittedly, certain amounts were paid by the petitioner's company, on the , basis of the order passed by this Court. There is nothing on record to show that except those amounts the petitioner has ever tried to make the payment after 1992. In such situation, it cannot be held that the petitioner has in any way being discriminated.
31. In view of the aforesaid fact, we find no merits in the present petition, the writ petition is devoid of merits and is hereby dismissed.
32. There shall be no order as to costs.