IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP No. 25300 of 2024 in LPA No. 483 of 2024 & CMP No. 25884 of 2024 in LPA No. 493 of 2024. Reserved on 02.01.2025. Pronounced on: 10.01.2025 CMP No. 25300 of 2024 in LPA No. 483 of 2024 M/s Kundlas Loh Udyog …..Applicant Vs. Himachal Pradesh State Electricity Board Ltd. and Ors. …...Respondents CMP No. 25884 of 2024 in LPA No. 493 of 2024 M/s Radiant Castings Private Ltd. …..Applicant Vs. Himachal Pradesh State Electricity Board Ltd. And Ors. …...Respondents Coram: The Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice. The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? CMP No. 25300 of 2024 in LPA No. 483 of 2024 2 For the Applicant : Dr. S. Murlidhar and Mr. Shrawan Dogra, Senior Advocates, with Mr. Manik Sethi, Advocate. For the respondents: Mr. Vinay Kuthiala & Ms. Sunita Sharma, Senior Advocates with Mr. Dhananjay Sharma and Ms. Sugandh Verma, Advocates, for respondent No.1. Mr. N.K. Sood, Senior Advocate with Mr. Vinay Mehta, Advocate, for respondent No.2. Mr. Anup Rattan, Advocate General with Mr. Gobind Korla, Additional Advocate General and Mr. Shalabh Thakur, Assistant Advocate General, for respondent No.3/State. _______________________________________________________________ CMP No. 25884 of 2024 in LPA No. 493 of 2024 For the Applicant: Mr. Vikram Singh Baid, Senior Advocate (through Video Conferencing) with Mr. Amit Kumar Dhumal, Advocate. For the respondents: Mr. Vinay Kuthiala & Ms. Sunita Sharma, Senior Advocates with Mr. Dhananjay Sharma and Ms. Sugandh Verma Advocates, for respondent No.1. Mr. N.K. Sood, Senior Advocate with Mr. Vinay Mehta, Advocate, for respondent No.2. Mr. Anup Rattan, Advocate General with Mr. Gobind Korla, Additional Advocate General and Mr. Shalabh Thakur, Assistant Advocate General, for respondent No.3/State. G.S. Sandhawalia, Chief Justice. The present order shall dispose of the application(s) for interim relief which have been 3 strenuously pressed by the Counsels for the applicants since the main appeal(s) stood admitted earlier vide separate orders. 2. The learned Senior Counsels Dr. S. Murlidhar and Mr. Shrawan Dogra assisted by Mr. Manik Sethi, Advocate have primarily pressed for the interim relief on the ground that there were interim order(s) dated 29.10.2024 and 26.11.2024, passed by the learned Single Judge in their favour when notice had been issued in the Writ petition(s) wherein the respondent/Electricity Board was directed to issue bills to the petitioner(s) qua its having used electricity but without deducting additional subsidy already allowed in favour of the petitioner(s) pursuant to policy decision taken by the Government of Himachal Pradesh. Thus, it has been argued that the applicants who are falling in the category of large Scale Industry would be gravely prejudiced if the interim benefit is not granted in their favour during the pendency of the appeals as they would be forced to pay the amount 4 without the grant of subsidy which is to the tune of Rs.1 as calculated by the respondent-Commission in the tariff order dated 15.3.2024. It is in such circumstances, the arguments have been addressed and the order was reserved on 02.01.2025, after hearing both sides. 3. The learned Single Judge while deciding the Bunch of Writ petitions in 192 cases dismissed the writ petitions by holding that there is no reason to interfere with the decision of the Board raising energy bills without allowing the component of subsidy. The reasons given by the learned Single Judge while framing two questions as such was that the Commission did not need to carry out the amendment in the tariff order and the directions issued permitting the Board to issue revised bills without subsidy was justifiable as the tariff order itself contained two types of tariff vide relevant table one which was with subsidy and the other table which was without subsidy. In the alternative, it is held that the 5 component of subsidy was withdrawn by the State of Himachal Pradesh and the fact that another order was required to be passed by the Commission was not to be done as the two sets of rates of energy were already there and therefore, there was no need of amendment of the tariff order. The said finding was passed while referring to the relevant provisions of the Electricity Act, 2003 and the Regulations dated 29.11.2023 titled as HP Electricity Regulation Commission (Multi Year Wheeling Tariff & Retail Supply Tariff) Regulations, 2023. 4. There being no right as such to the consumers to claim subsidy and it being the prerogative of the State Government therefore, raising of the energy bills by the Board where the component of additional subsidy by the Government had been denied was held to be justifiable. 5. Counsels for applicant(s) thus have primarily argued that the change in mid-way was on the strength of the letter issued by the Secretary of the 6 Board to the Secretary of the Commission wherein the State had taken a call that the matter had been reviewed and it has been decided that the impact of increase in tariff will be neutralized by the State Government through additional subsidy vide order dated 13.3.2024 (Annexure P-5). It was in such circumstances, the matter was to be placed before the Commission to get the tariff order dated 15.03.2024 amended suitably. 6. The Counsels have vehemently submitted that without following the procedure as such the Commission had proceeded to issue the order dated 20.09.2024 (Annexure P-8) which is addressed to the Electricity Board wherein directions have been issued that the Commission shall not neutralize the impact of increase in tariff through additional subsidy in respect of Domestic category of Consumers with consumption above 300 units/month (falling under 3rd Slab) and Large Industrial Power Supply category of Consumers with effect from 01.10.2024 and the order 7 was to be issued in line with the tariff order as per letter dated 18.09.2024. Accordingly, it is contended that the respondent/Board had taken the plea that the Commission had determined and considered the matter and directed the Secretary to convey the decision whereas while referring to the reply of respondent No.2-Commission it is pointed out that plea taken was that no determination or amendment or revision of tariff was required pursuant to the communication received from respondent No.3- Government of Himachal Pradesh and thus there was no application of mind as such by the Commission and the Secretary had taken the decision. Accordingly it is pointed out that the clarificatory petition was also pending regarding the tariff order dated 15.03.2024 on behalf of the Board which had been heard on 24.08.2024 and was pronounced on 09.10.2024 (Annexure RA-1/6). The bills as such had been issued before 05.10.2024 without even waiting for the decision on behalf of the Commission. Even 8 otherwise, it is submitted that the concerned parties were never heard and therefore, principle’s of natural justice was violated and if any deliberation was done on 19.9.2024, by the Commission it was done without hearing the parties. The deliberation if held in the absence of order supplied had led to an adverse effect as such no challenge could be made to the decision in principal without an order being on record and therefore, the Writ Court would have jurisdiction. The objection that the tariff order could not be subject matter of appeal was sought to be rebutted that the cause of action arose only when the order dated 21.09.2024 had been passed by the respondent- Commission and therefore, the Writ Court would have jurisdiction and the cause of action only arose at that point of time. 7. Mr. Anup Rattan, Learned Advocate General, Mr. Vinay Kuthiala, Mr. N.K. Sood and Ms. Sunita Sharma, Senior Advocates, pointed out that the tariff order dated 15.03.2024 (Annexure P-6) itself provided the 9 relevant determination of the tariff in three tables. Table 291 was the approved energy charge without subsidy wherein the tariff for large industry as such had been specified, table 292 was subsidized rate approved for the said industry at Rs.1, whereas table 297 was the specified effective energy, after giving benefit of the subsidy. It is accordingly contended that even if some decision had been taken by the proceedings dated 19.9.2024, it is a procedural irregularity. The record was produced in view of the earlier directions issued by the Coordinate Bench. It is pointed out that the Commission had taken a categorical call on the said date and clarified that the Commission already provided the subsidized effective energy charges at table 293 of the tariff order dated 15.03.2024 which indicated that the Government subsidy was considered to arrive at the subsidized rates and therefore, the Board was directed to take necessary action in the matter and accordingly charged the consumers in view of the letter of the 10 Government. Apparently, the members of the Commission as such were associated as per the communication dated 19.09.2024 and as per the said decision resultantly, letter dated 20.9.2024 was issued. It is pointed out that the subsidy has to be paid in advance and therefore, no hearing was given and fresh order need not be passed and the tariff order already prescribed the rates after giving the benefits of subsidy. The same had never been challenged and the arguments raised that the old Regulations as such would apply, was without any basis and no amendment of any tariff order was required. The learned Single Judge had thus rightly arrived at a categorical finding as such. 8. We have perused the record. 9. The communication dated 18.9.2024 reads as under: “File No. MPP-C (010)-5/2021-Part-II Government of Himachal Pradesh, Department of MPP and Power From:- Secretary (Power) to the, Government of Himachal Pradesh. 11 To The Secretary, HPERC, Vidyut Ayog Bhawan, SDA Complex, Block No. 37, Kasumpti, Shimla-09. 18/09/2024 Subject:- Petition filed by HPSEBL for true up of uncontrollable parameters for FY 2022-23 and ARR & Determination of Tariff for FY 2024-25: Madam, I am invite your attention to this department letter of even number dated 13.03.2024 vide which it was conveyed that the impact of increase in tariff will be neutralized by the State Government through additional subsidy. The matter has been reviewed and it has been decided that the impact of increase in tariff will not be neutralized through additional subsidy as per letter dated 13.03.2024 in respect of following category of consumers w.e.f. 01.10.2024:- Consumer Category Additional subsidy withdrawn (Rs/Unit) Large Industrial Power Supply EHT-220 kv and above 1.0 EHT-132 kv and above 1.0 EHT-66 kv and above 1.0 HT-1 (Contract demand up to 1 MVA) 1.0 HT-2 (Contract demand above 1 MVA) 1.0 You are, therefore, requested to place the matter before the Commission and get the tariff 12 order dated 15.03.2024 amended suitably at the earliest. Yours Faithfully, -sd- (Rakesh Kanwar) Secretary (Power) to the Government of Himachal Pradesh.” 10. A perusal of the above communication would go on to show that the Government had taken a decision as such on an earlier occasion on 13.03.2024 to take on the impact of the increase in tariff which was to be neutralized by the State through additional subsidy. The said decision reads as under: “File No. MPP-C (010)-5/2021-Loose Government of Himachal Pradesh, Department of MPP and Power From:- Chief Secretary (Power), Government of Himachal Pradesh. To The Secretary, HPERC, Vidyut Bhawan, Block No. 37, SDA Complex, Kasumpti, Shimla-09. Dated : Shimla-02, the 13.03.2024 13 Subject:- Petition filed by HPSEBL for true up of uncontrollable parameters for FY 2022-23 and ARR & Determination of Tariff for FY 2024-25: regarding utilization of GoHP free power by HPSEBL. Madam, I am directed to refer to your letter No. HPERC-F(1)-71/2023-4217-19 dated 7.3.2024 on the subject cited above and to say that this matter has been examined and it has been decided that the impact of increase in tariff will be neutralized by the State Government through additional subsidy. Yours Faithfully, -sd- (Arindam Chaudhary) Special Secretary (Power) to the Government of Himachal Pradesh.” 11. The tariff order dated 15.03.2024 (Annexure P- 6) was admittedly passed after having heard the concerned parties, including the consumers. For the financial year 2024-25, it provided that Commission may issue the effective subsidy to the State Government which shall not be construed as an amendment to the notified tariff and the licensee shall, however, make appropriate adjustments in the bills to be raised on consumers for the subsidy amount in the manner as the Commission may direct. 14 12. The learned Single Judge has taken pain’s to reproduce the effective portion of the tariff orders and Tables 291 to 293 to come to the valid conclusion. The arguments raised as such that there was no amendment carried out in the tariff order is without any basis while falling back on Regulation 40 of the 2023, Regulations which had been notified on 29.11.2023 where there was provision to notify two tariff schedules with or without subsidy. The arguments which have now been repeated that the notice had not been issued and tariff order could not be changed, is without any basis as the same was already in place and only the State has opted to withdraw the benefit of subsidy vide its letter dated 18.09.2024 (Annexure P-7) which has been reproduced above. 13. The said action was neither subject matter of challenge in their writ petitions nor it was argued as such or contended. Therefore, the reliance has rightly been placed by the respondents in the judgment in 15 Paschihmanchal Vidyut Vitran Nigam Limited v. Adarsh Textiles and another, (2014) 16 SCC 212, that the subsidy is a concession, cannot be claimed as a matter of right and it is the prerogative of the State Government. The reliance was also placed upon the order of the Coordinate Bench of this Court passed in Partap Singh Rauaut vs. Union of India and others, 2016 SCC Onlilne HP 4023, wherein the said proposition as such had been followed. 14. Once it is already part of the tariff order dated 15.3.2024 and apparently the same was never subject matter of appeal or challenged in accordance with law, and it would not lie in the mouth of the applicants that the cause of action arose only when the order dated 20.09.2024 was passed. 15. On account of the fact that the Government had issued letter dated 18.09.2024, members of the Commission accordingly deliberated on the said issue and noted that the tariff order already provided the subsidized effective energy charges and therefore, 16 only the Board had to be asked to take necessary action in the matter. The relevant part of table 293 was duly considered which is reproduced as under:- “Particulars Slabs Units/ Month Approved Energy Tariff for FY25 (Rs./kWh)* Total GoHP Subsidy for FY25 (Rs./kWh)* Effective Energy Tariff after subsidy (Rs./kWh)* xxxxx Large industry EHT-220 kV and above - 5.66 1.00 4.66 EHT-132 kV and above - 5.71 1.00 4.71 EHT-66kV and above - 5.76 1.00 4.76 HT 1 - 6.06 1.00 5.06 HT 2 - 5.81 1.00 4.81” 16. The same has also been noted by the learned Single Judge. It is thus apparent that the argument thus raised that the Commission had to deliberate the action on the issue, is without any basis has been rightly found so by the learned Single Judge. It is also to be kept in mind that if the Government is not paying subsidy to the Board as such then the irreparable loss would be caused to the Board and as such it will not be able to receive the amount neither from the State nor from the consumers. In case, the 17 appeal is to be allowed at the subsequent point of time, the amount which is to be payable by the consumer can be adjusted and therefore, no irreparable loss as such would be caused to the consumers who are heavy industries. 17. The interim order(s) dated 29.10.2024 and 26.11.2024 passed by the learned Single Judge was only on account of the fact that the pleadings were not complete at that point of time and prima facie the findings were recorded that the tariff order had not been revised by the competent authority and the relief had been granted. Thereafter the learned Single Judge has found that the tariff order itself contained different schedules as such for payment of bills with or without subsidy. Therefore, the benefit of interim order during the pendency of appeals cannot be granted. 18. Counsels for the State-respondent are justified in holding out that the clarification which has been sought by the Board was on different aspects and 18 which was pending before the Board and the orders were passed on 9.10.2024, which was regarding the areas for the highest slab to the domestic consumers without subsidy and without slab-wise tariff and subsidy had to be given in advance by the Government, failing which, the original tariff as determined by the Commission had to be made applicable and the fact had been spelt-out in the tariff order at para 12.2.9. 19. It was also noticed that this part of the tariff order pertaining to para 12.2.9 had not been placed on record by the applicants as observed by the learned Single Judge in para 34 of the order. 20. Whether the Regulation 40 of the year 2023 has the applicability as such or whether the Commission had the jurisdiction to pass the order as such providing for alternative tariff is an issue on the merits as such and therefore, we are of the considered opinion that when there is no dispute regarding the fact that the tariff order itself provided alternative 19 tariff as such prima facie, the benefit of interim relief cannot be granted. It is only the decision of the State Government while withdrawing the subsidy which has prejudiced the present applicants who are consumers and thus effect has been given by the Commission as such to its order on the basis of the decision of the State which has categorically taken a call that the increase in tariff will not be neutralized for the heavy industries. The said decision not being subject matter of challenge and being decision of financial prudence by the State, cannot be prima facie a matter of judicial review. 21. In such circumstances, we do not find any reason to grant the benefit of interim relief during the pendency of the appeal. It is however, made clear that the above observations are made only to decide these applications for interim relief and would not at all prejudice this Court while passing the final order in the main appeal. Resultantly, these applications are dismissed. 20 LPAs No. 483 and 493/2024. 22. Since both all LPAs are admitted, list the LPAs in due course. (G.S. Sandhawallia) Chief Justice (Satyen Vaidya) Judge January 10, 2025. (cm Thakur)