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TMI Blog2014 (8) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... tire period of rehabilitation and not restricted to the periods pertaining to power cut/break-down only has been reiterated and ratified by order dated 17.4.2007 at Annexure-12 reproduced above, by observing that as there was, prima facie, an ambiguity in respect of the reliefs and concessions envisaged from CESCO in clause 8 of page 7 of the Scheme at Annexure-1, the Bench directed, on file, to issue a clarification to CESCO stating inter alia therein that the reliefs as contained in the said para of the Scheme at Annexure-1 would not be restricted only to the break-down period(s) and would be for the entire rehabilitation period. Thus, in course of review hearing, M/s. IPISTEEL Ltd.(IPISL) held on 17.4.2007 at Annexure-12, it has been held that reliefs and concessions envisaged at clause 8 of page 7 of the Scheme at Annexure-1 would not be restricted only to the break-down period(s). Otherwise also, in order to understand the import and implication of the reliefs and concessions envisaged at clause 8 of page 7 of the Scheme at Annexure-1, a reference may be made to the observations of the BIFR in the Scheme on the basis of which specific reliefs and concessions were granted. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habilitation and not restricted to the periods pertaining to power cuts, breakdown, etc. as was being interpreted by CESCO which was communicated through letter dated 28.09.2004 to all the participated Agencies, with immediate effect or within such a reasonable time as this Hon'ble Court may deem it fit and proper and to refund/adjust a sum of ₹ 4,47,26,435/- with up-to-date interest till the date of refund/adjustment for the excess payment already made by the Petitioner No. 1 Company for the power tariff charged by CESCO during the period of rehabilitation. and Be further pleased to issue writ in the nature of Mandamus commanding the Opposite Parties to show cause as to the Letter No. 3187 dated 19.08.2005 to the extent it seeks to realize a sum of ₹ 6,35,19,199/- from the Petitioner No. 1 Company in violation of the modified sanctioned scheme and order of BIFR 19.06.2003 shall not be quash and if the Opposite Parties fail to show cause or show insufficient cause make the said Rule absolute. and Issue such other writ/writs, direction/directions and order/orders as this Hon'ble Court may deem fit and proper And for this act of kindness the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 4. While the matter stood thus, CESCO filed an application before the BIFR seeking modification/clarification/review of the reliefs and concessions sanctioned under the Modified Scheme in response to which a letter dated 5.11.2003 at Annexure-4 was written to the CESCO by the Secretary, BIFR. The letter at Annexure-4 reads as follows: D.O. No. 18(4)/82/B-II/BIFR/Mon./95/1676 dated 5.11.2003 Ref. M/s. IPI Steel Ltd. (ISL)-Case No. 47/94 Dear Shri Paikray, This is regarding the application dated 28.7.03, submitted by CESCO to the Board, seeking clarification/modification/review of the reliefs concessions in the scheme sanctioned by the Board on 27.10.1997 and also in respect of the Board's subsequent order dated 19.6.03. 2. The Board after review/re-consideration of the issues involved, has directed that the reliefs concessions envisaged in para 8(i), page-7 of SS and also in para 5(i)(sic) of the Board's order dated 19.6.03 is for the entire period of rehabilitation and not restricted to the periods pertaining to power cuts, break-downs etc. during the rehabilitation period, as is being interpreted by CESCO. In view of this, the Board's orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litation period and would not be restricted to the breakdown period of the rehabilitation process as was being interpreted by CESCO. 7. And, whereas, the Board, on consideration of the submissions made by CESCO as well as the company, noted that the relevant provisions of the SS were not being properly interpreted by CESCO and, therefore, issued a clarificatory letter dated 5.11.2003, written by the Secretary, BIFR to the Chief Executive of CESCO, stating therein the reliefs concessions envisaged in the scheme sanctioned by the Board would be for the entire period of rehabilitation process and would not be limited to the breakdown periods, as was being interpreted by CESCO. (emphasis supplied) 6. Also, on receipt of copy of letter at Annexure-4, IPISTEEL wrote a letter dated 10.11.2003 at Annexure-5 to CESCO to give effect to letter at Annexure-4. In view of inaction on the part of CESCO in implementing Modified Sanctioned Scheme at Annexure-1 as clarified by the Secretary of the BIFR in letter at Annexure-4, IPISTEEL filed W.P.(C) No. 13432 of 2003 which was disposed of by this Court by judgment dated 30.9.2004 at Annexure-7 directing the CESCO to implement the Rehabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of the order or a copy thereof directed implementation of that order. This could not have been done. We thus set aside the impugned order of the High Court with liberty to the Respondents to seek enforcement of the order if and when such an order is produced. The appeal stands allowed accordingly. There will be no order as to costs. 8. It has been averred by the petitioner that in response to the application dated 17.1.2007 made under the Right to Information Act, IPISTEEL was supplied with the copy of Note Sheet at Annexure-11 in which order has been passed by the BIFR clarifying the nature of reliefs and concessions envisaged at clause 8 of page 7 of the Modified Scheme at Annexure-1. It is averred that the Secretary, BIFR had simply communicated the order passed by the BIFR in the Note Sheet/file at Annexure-11. Concluding part of the Note Sheet at Annexure-11 is reproduced below:- 5. CESCO upon receipt of this order of the Bench dated 19.6.03 submitted an application dated 28.7.03 for review/modification of this order. The prayer of CESCO are reproduced below:- i) To clarify/modify/review the Sanctioned Scheme dated 27.10.1997 and/or dated 19.6.2003. ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l especially as CESCO is not willing to implement the orders issued by the Board in its proper prospective. If approved, a clarificatory letter could be addressed from Secretary/Registrar, BIFR to the Chief Executive Officer of CESCO stating inter alia therein the reliefs envisaged in para 3(i) above is for the entire period of rehabilitation and not for the power cuts break down only as being interpreted by CESCO, and compliance report be sent within 15 days. This would be actually reiterating the Bench's earlier order dated 19.6.2003 and would not amount to any modification/review. It may also be stated herein that the non-compliance of Bench's direction would call from initiating action as per provisions u/s. 33 of the Act. 8. To sum up portions marked 'A' 'B' above in para 6 7 are for consideration and approval please. Sd/-(Vinoy Vasisth), Secretary. M(SPB) We may act as suggested by Secy. At 'A' 'B' above. CESCO may send their compliance report within 15 days. M(NFS) Sd/-29/10/3 1. Clarificatory letter as per B. Sd/- 29 X 2. Pl. submit draft formal order reg. 'A' for Bench approval without any delay. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of nature of direction made at clause 8 of page 7 of the in the Modified Scheme is concerned, AAIFR observed in its order as follows: 10. However, so far as the issue at (b) is concerned, it has to be seen whether the reliefs and concessions could be granted in terms of the clarificatory order issued by the BIFR as contained in the letter of the Secretary of BIFR dated 05.11.03 to the appellant i.e. benefits of prorating of demand charges based on energy consumption during the entire period of rehabilitation i.e. 01.7.95 to 30.6.02. We have observed that in SS-07, the BIFR, instead of passing orders explicitly and in clear terms, regarding the interpretation of para 8 of SS-97, which the BIFR incorporated in SS-07, the BIFR has directed implementation of Clause 8 of SS-97 as per its clarificatory order dated 05.11.03 issued by the Secretary of BIFR. It is a fact that language of clause 8 of SS-97 was ambiguous, and was amenable to various interpretations. The clarificatory letter dated 05.11.03 which was issued by the Secretary, BIFR was neither accepted by this Authority nor by the Hon'ble Supreme Court as an order of the BIFR. The Hon'ble Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e granted as per the letter of Secretary, BIFR dated 05.11.03 to CESCO, cannot be sustained. Similarly, in the sanctioned scheme the reference to this letter dated 05.11.03 as a clarificatory order of the BIFR is also not sustainable as has been held by the Hon'ble Supreme Court as well as by this Authority that it is not an order of the Board. Undoubtedly, the letter dated 05.11.03 issued by the Secretary, BIFR is based on the Note Sheet dated 27/29.10.03 and the respondent company has sought implementation of the order contained in the Note Sheet in WP No. 11267/2005 which has been opposed by the appellant on the ground that the said Note Sheet cannot be construed as an order of the BIFR and the BIFR cannot abdicate its power in favour of the Secretary, BIFR. Therefore, since the issue of validity of the Note Sheet of the BIFR dated 27/29.10.03 on the basis of which the letter dated 05.11.03 has been issued is sub-judice before the Hon'ble High Court of Orissa, the BIFR could not have relied upon the said letter dated 05.11.03 for the interpretation of para 8 of SS-97. 12. In result, we uphold the direction of the BIFR in SS-07 to the appellant regarding grant of rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the BIFR in file/Note Sheet at Annexure-11. In the order dated 17.4.2007 at Annexure-12, BIFR has pointed out at paragraph 18(i) that the Bench directed, on file, that clarification be sent by the Secretary to CESCO that reliefs contemplated at clause 8 of page 7 of Annexure-1 would not be restricted only to the break-down period(s) and would be for the entire rehabilitation period. The words break down and rehabilitation cannot be read in isolation. In view of nature of orders passed by the BIFR from time to time and more particularly in view of the order passed by the Board in file/Note Sheet at Annexure-11, CESCO is obliged to extend the benefit envisaged under clause 8 of page 7 of the Modified Sanctioned Scheme at Annexure-1 as well as at paragraph 5(i) of the order of the Board at Annexure-3 for the entire period of rehabilitation. 12. Opposite parties have filed counter affidavit resisting the reliefs claimed by the petitioners. Opposite parties contend that for the self-same reliefs, IPISTEEL had filed W.P.(C) No. 13432 of 2003 wherein prayer was made for direction to CESCO to implement Revised Sanctioned Scheme and to comply with the direction dated 5.11.2003 at Ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore this Court. Time was granted by AAIFR to CESCO for obtaining certified copy of the 'order dated 5.11.2003' of the BIFR. Accordingly, the CESCO applied for certified copy of the order dated 5.11.2003, but, instead of providing certified copy of the order dated 5.11.2003 the BIFR supplied copy of the letter at Annexure-4. Appeal No. 449 of 2003 was dismissed by AAIFR by order dated 8.11.2004 as not maintainable on the ground that the substantive issue raised in the appeal relating to concessional rate of tariff to be provided by the CESCO to IPISTEEL had been decided by this Court in W.P.(C) No. 13432 of 2003. The IPISTEEL had approached the BIFR for certain modification of the Sanctioned Scheme praying that during the period of rehabilitation, GRIDCO/CESCO should charge for energy actually consumed and should not levy minimum demand charges. However, the application for modification was withdrawn. In spite of withdrawal of the application for modification, by order dated 19.6.2003 the BIFR directed that the IPISTEEL would be liable for payment for the energy actually consumed and for prorating of demand charges during the period of break-down/rehabilitation. Circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding a direction to the effect that during the period of rehabilitation, GRIDCO/CESCO should charge for energy actually consumed and should not levy minimum demand charges. However, application for modification was withdrawn as the BIFR suggested that any modification of the scheme at that stage would automatically withdraw the consent given earlier. Thereafter, for the first time, by letter dated 20.12.2002 at Annexure-B, IPISTEEL raised the plea that in view of clause 8 of page 7 of the Revised Scheme at Annexure-1, the company is entitled to benefit of payment on the basis of actual quantity of demand and/or energy during entire period of rehabilitation, and not only during the period of break-down. By order dated 19.6.2003 at Annexure-3, BIFR reiterated the direction to the CESCO as was made at clause 8 of page 7 of the Revised Scheme at Annexure-1. In such circumstances, CESCO filed application dated 28.7.2003 at Annexure-D to the BIFR seeking review/modification/clarification of the Scheme at Annexure-1 and order at Annexure-3 to the effect that benefit contemplated under the Scheme was for payment of charges on the basis of actual quantity of demand and/or energy during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the order on the basis of which communication under Annexure-4 was made by the Secretary, BIFR, if and when such an order is produced. IPISTEEL has produced the order in the Note Sheet at Annexure-11 to urge that order was passed by BIFR to clarify that reliefs and concessions envisaged at clause 8 of page 7 of the Modified Scheme at Annexure-1 are for the entire period of rehabilitation and not restricted to the periods pertaining to power cuts, break downs etc. during the rehabilitation period, as is being interpreted by CESCO. 17. In Note Sheet at Annexure-11, a copy of which is also at Annexure-P to the counter affidavit, it has been categorically mentioned that order in the Note Sheet was passed in response to application filed by CESCO to clarify/modify/review the Modified or Revised Scheme at Annexure-1 and subsequent order dated 19.6.2003 at Annexure-3, and BIFR did not find any merit in the review application. However, considering the contentions raised by IPISTEEL to the effect that CESCO has not been properly interpreting the reliefs as contained in clause 8 of page 7 of the Scheme at Annexure-1 and also in para 5(i) and 5(ii) of the order at Annexure-3, the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty margin of the company decreased over the period on account of competitive market conditions and increase in the production cost due to frequent mechanical breakdowns at the mill. Also at page 4, under the heading REHABILITATION SCHEME it has been observed that the company's performance had been unsatisfactory due to shortage of power, labour problems, market recession and non-availability of reliefs and concessions from Government of Orissa as envisaged in the BIFR Scheme. Thus, it appears that there is no reference to 'electrical breakdown'. Rather the Scheme refers to frequent 'mechanical breakdowns' as one of the factors which rendered the IPISTEEL sick. In such circumstances, there is no scope to restrict the meaning of words 'break-down/rehabilitation' as used in clause 8 of page 7 of the Scheme to the period of electrical breakdown only. 19. It is also pertinent to point out that clause 8 of page 7 occurs under the general heading Relief and Concessions and the specific heading of reliefs and concessions envisaged from the 'State Government'. Reliefs and concessions envisages at clauses 3 and 4 of page 6 also relate to reliefs and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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