Nellimarla Jute Mills Co. Ltd., Vs Eastern Power Distribution Company of Andhra PradeshLtd.

NELLIMARLA JUTE MILLS CO. LTD.,, REP. BY ITS GENERAL MANAGER (COMMERCIAL)SRI.BASUDEV -- PARASURAMPURIA, S/O. LATE SHYAMLAL PURIA, NELLIMARLA, VIZIANAGARAMA DISTRICT.

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...PETITIONER

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AND

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EASTERN POWER DISTRIBUTION COMPANY OF ANDHRA PRADESHLTD, REP. BY ITS MANAGING DIRECTOR, VISAKHAPATNAM.

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SUPERNINTENDENT ENGINEER OPERATION, EASTERN POWER DISTRIBUTION COMPANY OF ANDHRA PRADESHLTD. VIZIANAGARAM , VIZIANAGARAM DISTRICT.

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SENIOR ACCOUNTS OFFICER, EASTERN POWER DISTRIBUTION COMPANY OF ANDHRA PRADESHLTD. VIZIANAGARAM ,

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GOVERNMENT OF ANDHRA PRADESH, REP. BY ITS SECRETARY, INDUSTRIES AND COMMERCE DEPARTMENT, SECRETARIAT, HYDERABAD.

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THE STATE OF A P REP BY ITS PRL SECRETARY, ENERGY (PR - II) DEPT., SECRETARIAT, HYDERABAD R5 IS IMPLEADED AS PER C.O. DT. 21-11-17 IN WPMP 28492 OF 16

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...RESPONDENT(S):

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Counsel for the Petitioner:

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1.KOKA SATYANARAYANA RAO

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Counsel for the Respondent(S):

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1.V V SATISH (SC for APEPDCL)

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2.GP FOR ENERGY (AP)

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3.METTA CHENDRA SEKHAR RAO

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4..

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5.GP FOR INDUSTRIES COMMERCE

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The Court made the following:

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ORAL ORDER:

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Heard Sri Koka Satyanarayana Rao, learned Counsel for the Writ Petitioner and Sri V.V. Satish, learned Standing Counsel for APEPDCL.

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The present Writ Petition is filed seeking the following prayer:

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“prays that this Hon’ble Court may be pleased to issue an order, direction more particularly one in the nature of mandamus declaring that the action of the 2^nd Respondent in calling upon the Petitioner to make the payment in terms of letter No.SE/OP/VZM/SAO/HT/D.No.900/2, dt.9.1.2002 as arbitrary, illegal and unenforceable and consequently declare that the Respondent has no jurisdiction to demand the payment during the pendency of Case No.258 of 1988 on the file of Board for Industrial and Financial Reconstruction, New Delhi and pass”

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The learned Counsel for the Writ Petitioner has filed I.A.No.1 of 2023

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seeking to amend the prayer, which is as under:

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“Under these circumstances the petitioner herein prays that this Hon’ble Court may be pleased to permit the petitioner to amend the prayer as “to issue an order direction more particularly one in the nature of mandamus directing the respondents to comply with the orders passed in G.O.Ms.No.41 Industries & Commerce Dept. Govt. Of A.P., dtd: 12.02.2004 and release the incentives to the petitioner along with interest and pass such other order or orders as this Hon’ble Court deems fit and proper in the circumstances of the case.”

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The amended prayer seeks to the implement the G.O.Ms.No.41,

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Industries & Commerce (IFR) Department, dated 12.02.2004.

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The facts in the present case are that on the date of filing of the Writ

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Petition, Writ Petitioner was declared as a Sick Industry under the Sick

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Industrial Companies (Special Provisions) Act, 1985 (SICA) and the proceedings were pending before the Board for Industrial and Financial Reconstruction (herein after called as IIFR). The original prayer would indicate that during the pendency of the proceedings before the BIFR, the Official Respondents are insisting upon the payment of arrears of electricity charges etc. In any case, after considering the assets and liabilities and the potential of the Writ Petitioner for revival, the BIFR has formed the scheme and issued directions to the Official Respondents herein. In pursuance of the said directions of the BIFR, the Government of Andhra Pradesh has issued G.O.Ms.No.41, Industries & Commerce (BIFR) Department, dated 12.02.2004.

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On perusal of the said G.O.Ms.No.41, it transpires that the BIFR has appointed IFCI as an Operating Agency for preparing rehabilitation package for the Writ Petitioner Company. The Operating Agency (IFCI) has submitted a draft rehabilitation proposal and after considering the same, the BIFR has

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given directions to the Official Respondents for revival of the Company. In terms of such directions, the Government of Andhra Pradesh has issued G.O.Ms.No.41, giving certain concessions and benefits in the form of waiver of minimum payment charges and waiver of interest etc. By virtue of the said G.O., it is categorically stated that if any concession or waiver in tariff or other charges etc., is to be extended, the concerned Department shall pay the

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differential amount as subsidy to the concerned DISCOM. In other words, the concessions given under the said G.O., were to be paid by the concerned Department, which is the Department of Industries & Commerce, in the present case, for the purpose of paying the differential amount as subsidy to the concerned DISCOM.

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As the facts stated hereinabove would indicate that the Writ Petition is filed during the pendency of the proceedings before the BIFR seeking the relief not to coerce the Petitioner for payment of the arrears of power tariff etc., the said proceedings before the BIFR got concluded by framing a scheme following the issuance of G.O.Ms.No.41. This means that as on the date of filing of the present Writ Petition, G.O.Ms.No.41 did not even take existence inasmuch as the said G.O. was issued on 12.02.2004. In such an event, the Writ Petitioner ought not to have filed I.A.No.1 of 2023 seeking to amend only the prayer without amending the pleadings since the entire pleadings which are referred to in the Affidavit filed in support of the Writ Petition are only the facts that were in existence during the pendency of the proceedings before the BIFR. By virtue of the issuance of G.O.Ms.No.41, dated 12.02.2004, it appears that new circumstances have set-in, thereby, enabling the Writ Petitioner to be rehabilitated by giving certain concessions recognizing the fact that the Writ Petitioner has already cleared the arrears. This fact is reflected

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from the Counter Affidavit filed by the Respondent No.4, whereas, the relevant

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portions are usefully extracted hereunder:

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“6. In the G.O Ms.No.41, Industries & Commerce (IFR) Department.; Dt.12.02.2004 it was finally ordered that since the petitioner, Company has already made the payments and since a decision has been taken by the Government on the other issues of Minimum Demand Charges and interest on delayed payment as per paras (a) & (b) above, it was decided to release the incentives to the Company as per their eligibility.

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It is also respectfully submitted that with the consent of the Energy Department only the G.O.Ms. No. 41 Industries & Commerce (IFR) Department. Dt. 12-22004 orders were issued and the Energy Department vide its Letter No.3453/Pr.II (I) 2002-7 Dt. 11-3-2004 has also directed the C & MD, APEPDCL, Visakhapatnam to implement the G.O.Ms.No.41 Ind. & Com (IFR) Dept., Dt. 12-2-2004.

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In para 2 of the said G.O. it was clearly stated that" Energy department have observed that in view of the reforms regime in the Electricity Sector as per A.P. Electricity Reforms Act, 1998, if any concession or waiver in tariff or other charges etc. is to be extended, the concerned Department shall pay the differential amount as subsidy to the concerned DISCOM.

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The BIFR vide its order dt. 08.12.2011 issued direction that "Electricity Department is directed to show cause why action should not be taken under section 33 of (Sick Industrial Companies Act) SICA for non compliance of direction given at 10.4 (B) on page 15 of sanctioned scheme (SS-06)". This Department has requested the Energy Department, Government of Andhra Pradesh, to take immediate necessary action on the directions of Board for Industrial and Financial Reconstruction under intimation to this Department vide Government U.O.Note.No.17751/IFR.1/2008, Dt.02.01.2012. The action taken report from the Energy Department, Government of Andhra Pradesh is awaited.”

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8. As the above extract of the Counter Affidavit would clearly indicate,

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particularly in para No.6 of the Counter Affidavit, that the Writ Petitioner has

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already made the payments and that the Government has taken decision on

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the other issues of minimum payment charges etc., it appears that the Government has already acknowledged the factum of clearance of arrears on part of the Writ Petitioner. In any case, it appears to the Court that the present Writ Petition has become infructuous.

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This apart, it would not entitle the Writ Petitioner to merely amend the prayer for implementation of G.O.Ms.No.41, dated 12.02.2004, which has not taken its existence on the date when the Writ Petition was filed. In any case, as stated supra , there is no foundation of pleadings as regards the G.O.Ms.No.41 in the W.P.No.1406 of 2002. In this view of the matter, this Writ Petition has become infructuous for the reasons stated hereinabove.

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