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Judgment
This petition under Article 226/227 of the Constitution of India has been filed by the petitioners seeking following relief:-
"i.Issue writ/Writs, order/orders of appropriate nature quash the order dt 20/1/13 & 30.03.2013 directing the respondent either to refund the amount of Rs.41.81 Lakhs or to adjust it in the running bills of the Petitioner.
ii.Any other relief this Hon’ble Court deems fit and proper in the present facts and circumstances of the case may also be passed.
iii.Cost be awarded to the respondent."
Learned counsel for the petitioners, in addition to the facts and grounds mentioned in the petition, submits that the petitioner is a defence establishment engaged for operational preparedness by training of arm troops stationed at Jabalpur. Respondent No.2, a Corporation constituted under Section 47 of the Indian Electricity Act. The Board has monopoly over production, sale and supply of electricity across the State of Madhya Pradesh. As the Board faced acute power shortage in the State of Madhya Pradesh, a restriction order was imposed on all domestic and commercial electricity consumers. However, the defence establishment was exempted from the restrictions. The respondent No.1 v i d e notification dated 22.10.1996 (Annexure P/1) imposed restriction of 40% power cut w.e.f. 20.10.1996 for all the consumers of electricity including the defence establishments. The petitioner defence establishment applied for exemption from 40% power cut in furtherance of notification dated 22.10.1996 to respondent No.1. The Chief Engineer (Systems) and Superintending Engineer, City Circle v i d e letter dated 27.10.1993 (Annexure P/2) and 22.11.1995 (Annexure P/3) granted exemption from imposition of 40% power cut to the petitioner establishment. Learned counsel referring to Annexure P/4 submits that the respondent No.1 M.P. Electricity Board vide order dated 30.04.1997 (Annexure P/4) issued a clarification that the defence establishment would be included in the list of exempted establishment in Schedule-B, Serial No.9. This order was made applicable w.e.f. 01.05.1997. The respondent No.1 erroneously imposed penal charges of Rs. 16.82 lakhs and surcharge of Rs 24.99 lakhs for usage of electricity during restriction of 40% power cut for the period from 01.12.1996 to 30.04.1997. The petitioners requested the respondents for waiver of the penalty and surcharge for excess consumption by communication dated 11.11.2011. The Chief Engineer of M.P. Poorv Kshetra Vidyut Vitran Company Ltd., vide communication dated 20.01.2012 (Annexure P/10) declined to grant any exemption from levy of penalty and surcharge. Learned counsel contends that the order dated 30.04.1997 (Annexure P/4) was clarificatory in nature. The petitioner establishment being a defence establishment was granted exemption by including defence establishment at Serial No.9 of Schedule-2 comprising the exempted institutions. Learned counsel forcefully contends that any clarificatory circular or notification needs to be given retrospective effect. Learned counsel referred to the judgment of Supreme Court in the case of Union of India and others Vs. Hindustan Development Corporation and others reported in (1993) 3 SCC 399, to contend that the petitioner establishment was granted exemption w.e.f. 16.10.1993 vide Annexure P/2 and w.e.f. 16.10.1995 vide Annexure P/3, therefore, there was reasonable legitimate expectation on the part of the petitioners that the respondent would grant them exemption from the power cut of 40%. As such the imposition of penalty and surcharge for usage of electricity for the period in question was erroneous and illegal. The petitioners deserve refund of amount of Rs.41.81 Lakhs paid towards the penal charges and surcharge to respondent No.1.
3 . Per contra, learned counsel for the respondent opposes the petition and submits that the exemption granted v i d e Annexure P/3 stand superseded by the order dated 22.10.1996 (Annexure P/1) which imposed the restriction of power cut of 40% on all the establishments. However, the defence establishment was included in the list of exempted institutions vide order dated 30.04.1997 (Annexure P/4). The order was made applicable prospectively w.e.f. 01.05.1997, therefore, the petitioner was liable for levy of penalty and surcharge for excess consumption during the period of power cut i.e. 01.12.1996 to 30.04.1997, as there was no exemption in favour of the petitioner for this period. Learned counsel further contends that the petitioner had paid the amount of penalty and surcharge in the year, 2000. Despite regular communications by the respondents to petitioner regarding liability to pay the penalty and surcharge for usage of electricity between year 2000-2011, the petitioner has raised the objection and requested for waiver of penalty and surcharge for the first time after delay of 12 years. The petition suffers from inordinate delay and laches, therefore, the petition has no merit and deserves to be dismissed.
Heard learned counsel for both the parties. Perused the record.
The material on record reveals that the department of energy, Government of M.P. issued order dated 22.10.1996 (Annexure P/1) namely M.P. Electricity Supply and Consumption Regulating Order, 1996 (hereinafter referred to as 'Regulating Order, 1996) regulating the usage of electricity by all the consumers and laying down the tariff for use of excess electricity beyond the prescribed limit laid down under Schedule-A of the order.
6 . The Superintending Engineer, M.P. Electricity Board, Jabalpur vide letter dated 14.11.1996 informed the petitioner that petitioner cannot consume electricity more than prescribed limit of 1560 K.V.A., otherwise he will be subjected to twice the ordinary tariff as laid down in the regulating order Annexure P/1.
The Clause-11 of the regulating order, 1996 provided that the Secretary of the Board may exempt any consumer from the provisions of the order. The Clause 12(2) further provides that the Secretary of Board on representation by any consumer or suo motu amend the schedule of the order and include any HT connection consumer.
The Secretary of M.P. Electricity Board in exercise of power under Clause 12(2) of the regulating order, 1996 vide order dated 30.04.1997 (Annexure P/4) directed inclusion of defence establishment in the list of HT electricity consumers in Schedule 'B' of the order and directed that this inclusion order shall come into force w.e.f. 01.05.1997. It was further directed that in view of the amendment in Schedule-B, the higher rates of tariff in Clause-9 of the order would not apply to the HT consumers of defence establishment. Learned counsel contends that since the petitioner establishment is a defence establishment and they were granted exemption from 30% demand cut vide order dated 27.10.1993 (Annexure P/2) and order dated 22.11.1995 (Annexure P/3). The order of Secretary, M.P.E.B, Jabalpur (Annexure P/4) should be given retrospective effect on doctrine of legitimate expectation.
It is trait law that exemptions, benefits or the concessions are matters of State policy. When the State (instrumentality of State) issued a notification adding any institution to an exempt category on a particular date, the exemption is strictly prospective from the date specified in the exemption order. The earlier exemption from 30% demand cut were granted by M.P. Electricity Board on the request of the petitioner subject to specific condition. These exemptions were granted from relevant provisions of State Government, Central Order, 1957.
The present dispute relates to imposition of penal charges and penalty in view of Clause-9 of the M.P. Electricity Supply and Consumption, Regulation Order, 1996 (Annexure P/1). There is nothing on record to suggest that the petitioner had applied for grant of exemption from the provisions of regulating order, 1996, despite specific caution issued to them v i d e letter No.5621 dated 14.11.1996 by the Superintending Engineer, M.P.E.B., Jabalpur (submitted by the petitioner). The exemption order (Annexure P/4) relied upon by the petitioner also does not reveal that the defence establishments were included in Schedule-B of HT electricity consumers at the request of the petitioner. It appears that the Secretary, M.P.E.B., Jabalpur has passed the order suo motu in exercise of Clause 12(2) of the Regulating Order, 1996. It cannot be said to be a clarificatory order.
Therefore, there is a lack of an express promise on part of M.P. Electricity Board or representation by the petitioner or previous concession under the Regulating Order, 1996 (Annexure P/1) to claim legitimate expectation for grant of exemption from payment of tariff under Clause-9 of the Regulating Order, 1996.
Be that as it may, the petitioner paid the amount of bill (penal charges and surcharge) on 28.03.2000 as reflected from the receipts annexed along with petition. The petitioner applied for waiver of 40% power cut from contracted maximum demand during the period between December, 1996 to April, 1997 for the first time v i d e letter dated 20.02.2013 (Annexure P/7) followed by D.O. letter Annexure P/7-II requesting refund/adjustment of the amount in future tariff bills. The petitioner has assailed order dated 30.03.2013 of Additional Secretary, Energy, Government of M.P. declining their proposal and the letter dated 20.01.2012 (Annexure P/10).
In case of State of M.P. v. Bhailal Bhai , reported in (1964) 6 SCR 261 : AIR 1964 SC 1006, it was held that-
"16.For the reasons given above, we are clearly of opinion that the High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law.
17.At the same time we cannot lose sight of the fact that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a Civil Court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general Rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a Civil Court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution.
21.The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhailal Bhai case out of which Civil Appeal No. 362 of 62 has arisen. On behalf of the respondents-petitioners in these appeals (CAs Nos. 861 to 867 of 1962) Mr Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. We argued that assuming that the remedy of recovery by action in a Civil Court stood barred on the date these applications were made that would be no reason to refuse relief under Article 226 of the Constitution. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained." (Mrinmoy Maity Vs. Chhanda Koley and Others reported in 2024 INSC 314 also relied. )
In case of State of Uttaranchal v. Shiv Charan Singh Bhandari, reported in (2013) 12 SCC 179, it was observed that:-
17.In C. Jacob v. Director of Geology and Mining [C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115 : (2008) 2 SCC (L&S) 961] a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, the Court has expressed thus:
“10.Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.”
18.In Union of India v. M.K. Sarkar [(2010) 2 SCC 59 : (2010) 1 SCC (L&S) 1126] this Court after referring to C. Jacob has ruled that:
“15.When a belated representation in regard to a ‘stale’ or ‘dead’ issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the ‘dead’ issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."
19.From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.
23.In State of T.N. v. Seshachalam (2007) 10 SCC 137 , this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus:
“16.… filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant.”
In NDMC v. Pan Singh (2007) 9 SCC 278, the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
Learned counsel for the petitioner was at loss to show any proceeding on part of the petitioner between year, 2000 (deposit of penal charges and surcharge) to year 2012, requesting for refund of aforesaid amount. The writ jurisdiction cannot be invoked to enable a claimant to recover the amount, the recovery of which by way of Civil Suit is barred by limitation. The Limitation Act provides period of three years for recovery of money. Therefore, the request for refund after a period of 12 years suffers from inordinate delay and laches on part of the petitioner. Equity does not assist those who sleep over their rights (Vigilantibus non dormientibus jura subveniunt).
In view of above discussion, this Court is of the considered opinion that no case is made out to invoke writ jurisdiction and to direct refund of the amount as claimed by the petitioner. The petition being meritless, is dismissed.