# M/S KOTHARI INDUSTRIAL CORPORATION LTD v. TAMIL NADU ELECTRICITY BOARD & ANR

- **Citation:** [2010] 11 S.C.R. 1139
- **Court:** Supreme Court of India
- **Decided:** 2010-10-01
- **Case number:** Civil Appeal No. 9748 of 2003
- **Bench:** Markandey Kat Ju, T. S. Thakur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-kothari-industrial-corporation-ltd-v-tamil-nadu-electricity-board-anr-26332
- **Pages:** 5

## Headnote

F?eference to Larger Bench - Tariff-concession provided
to new industries under Electrical Energy Act - Establishment
B
of industrial units -
Subsequently by Notification new C
condition for tariff-concession provided ~ Industrial units also
giving undertaking to that effect - Held: In view of difference
of opinion in various judgments passed by Supreme Court,
the matter referred to Larger Bench to decide the issues
whether principles of 'legitimate expectation' and 'promissory
D
estoppe/' are applicable to the case and whether undertaking
given by the industrial units acted as estoppel against them
- Tamil Nadu Revision of Tariff Rates on Supply of Electrical
Energy Act, 1978 - Administrative Law - Principles of
'legitimate expectation' and 'promissory estoppel' - Estoppel
E
- Electricity.
Tariff concessions were given for a period of first five
years to new industries under Tamil Nadu Revision of
Tariff Rates on Supply of Electrical Energy Act, 1978. The
appellants, attracted by the concessions, established
F
their industrial units. Subsequently, by a Notification
dated 30.04.1982, the respondents revised the tariff
concession, whereby the concession was not to apply
from the year when the industry started earning profit.
Appellants were asked to give an undertaking to that
effect which they gave fearing disconnection of their
power supply. Appellant in C. A. No. 9748 of 2003 was
served notice to pay a particular amount towards tariff.
1139
G
H
A
B
1140
SUPREME COURT REPORTS
[2010] 11 S.C.R.
The questions for consideration in the instant
appeals were whether the principles of 'promissory
estoppel' and 'legitimate expectation' were applicable and
whether the undertaking given by the appellants acted as
an estoppel against them.
Referring the matters to the Larger Bench, the Court
HELD: There are some differences of opinion in the
various decisions by different benches of the Supreme
Court. Hence the matter needs to be decided by a Larger
C Bench of this Court, on the issue as to whether the
principles of 'promissory estoppel' and 'legitimate
expectation' are applicable in this case. The Larger
Bench may also consider whether the undertaking given
by the appellants acts as an estoppel against them.
D (1143-E-F]
Pawan Alloys and Casting (P) Ltd. vs. UP. State
Electricity Board and Ors. (1997) 7 SCC 251; Southern
Petrochemical Industries Company Limited vs. Electricity
Inspector and E. T.1.0. and Ors. (2007) 5 SCC 447; Shri Baku/
E Oil Industries and Anr. vs. State of Gujarat and Anr. (1987) 1
SCC 31 etc.; Union of India and Ors. vs. Godfrey Philips India
Limited (1985) 4 SCC 369, State of Tamil Nadu vs. K.
Sabanayagam and Anr. (1998) 1 SCC 318; Jalan Trading Co.
(Pvt. Ltd.) vs. Mill Mazdoor Union 1967(1) SCR 15; Kasinka
F Trading and Anr. vs. Union of India and Anr. (1995) 1 SCC
274; .(1997) 3 SCC 398; Tamil Nadu Electricity Board vs.
Status Spinning Mills Ltd. and Anr. (2008) 7 SCC 353 -
referred to.
G
Case Law Reference:
(1997) 1 sec 251
Referred to.
Para 5
(2007) 5 sec 447
Referred to.
Para 5
(1987) 1 sec 31
Referred to.
Para 5
H
KOTHARI INDUSTRIAL CORPORATION LTD. v. TAMIL1141
NADU ELECTRICITY BOARD & ANR.
(1985) 4 sec 369
Referred to.
Para 6
(1998) 1 sec 318
Referred to.
Para 6
1967(1) SCR 15
Referred to.
Para 6
(1995) 1 sec 214
Referred to.
Para 6
(1997) 3 sec 398
Referred to.
Para 6
(2008) 1 sec 353
Referred to.
Para 6
A
B

## Text

[2010] 11 S.C.R. 1139
M/S KOTHARI INDUSTRIAL CORPORATION LTD.
A
v.
TAMIL NADU ELECTRICITY BOARD & ANR.
(Civil Appeal No. 9748 of 2003 etc.)
OCTOBER 01, 2010
[MARKANDEY KAT JU AND T. S. THAKUR, JJ.]
F?eference to Larger Bench - Tariff-concession provided
to new industries under Electrical Energy Act - Establishment
B
of industrial units -
Subsequently by Notification new C
condition for tariff-concession provided ~ Industrial units also
giving undertaking to that effect - Held: In view of difference
of opinion in various judgments passed by Supreme Court,
the matter referred to Larger Bench to decide the issues
whether principles of 'legitimate expectation' and 'promissory
D
estoppe/' are applicable to the case and whether undertaking
given by the industrial units acted as estoppel against them
- Tamil Nadu Revision of Tariff Rates on Supply of Electrical
Energy Act, 1978 - Administrative Law - Principles of
'legitimate expectation' and 'promissory estoppel' - Estoppel
E
- Electricity.
Tariff concessions were given for a period of first five
years to new industries under Tamil Nadu Revision of
Tariff Rates on Supply of Electrical Energy Act, 1978. The
appellants, attracted by the concessions, established
F
their industrial units. Subsequently, by a Notification
dated 30.04.1982, the respondents revised the tariff
concession, whereby the concession was not to apply
from the year when the industry started earning profit.
Appellants were asked to give an undertaking to that
effect which they gave fearing disconnection of their
power supply. Appellant in C. A. No. 9748 of 2003 was
served notice to pay a particular amount towards tariff.
1139
G
H
A
B
1140
SUPREME COURT REPORTS
[2010] 11 S.C.R.
The questions for consideration in the instant
appeals were whether the principles of 'promissory
estoppel' and 'legitimate expectation' were applicable and
whether the undertaking given by the appellants acted as
an estoppel against them.
Referring the matters to the Larger Bench, the Court
HELD: There are some differences of opinion in the
various decisions by different benches of the Supreme
Court. Hence the matter needs to be decided by a Larger
C Bench of this Court, on the issue as to whether the
principles of 'promissory estoppel' and 'legitimate
expectation' are applicable in this case. The Larger
Bench may also consider whether the undertaking given
by the appellants acts as an estoppel against them.
D (1143-E-F]
Pawan Alloys and Casting (P) Ltd. vs. UP. State
Electricity Board and Ors. (1997) 7 SCC 251; Southern
Petrochemical Industries Company Limited vs. Electricity
Inspector and E. T.1.0. and Ors. (2007) 5 SCC 447; Shri Baku/
E Oil Industries and Anr. vs. State of Gujarat and Anr. (1987) 1
SCC 31 etc.; Union of India and Ors. vs. Godfrey Philips India
Limited (1985) 4 SCC 369, State of Tamil Nadu vs. K.
Sabanayagam and Anr. (1998) 1 SCC 318; Jalan Trading Co.
(Pvt. Ltd.) vs. Mill Mazdoor Union 1967(1) SCR 15; Kasinka
F Trading and Anr. vs. Union of India and Anr. (1995) 1 SCC
274; .(1997) 3 SCC 398; Tamil Nadu Electricity Board vs.
Status Spinning Mills Ltd. and Anr. (2008) 7 SCC 353 -
referred to.
G
Case Law Reference:
(1997) 1 sec 251
Referred to.
Para 5
(2007) 5 sec 447
Referred to.
Para 5
(1987) 1 sec 31
Referred to.
Para 5
H
KOTHARI INDUSTRIAL CORPORATION LTD. v. TAMIL1141
NADU ELECTRICITY BOARD & ANR.
(1985) 4 sec 369
Referred to.
Para 6
(1998) 1 sec 318
Referred to.
Para 6
1967(1) SCR 15
Referred to.
Para 6
(1995) 1 sec 214
Referred to.
Para 6
(1997) 3 sec 398
Referred to.
Para 6
(2008) 1 sec 353
Referred to.
Para 6
A
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. c
9748 of 2003.
From the Judgment & Order dated 06.12.2001 of the
High Court of Madras in WA No. 421 of 1995.
With
Civil Appeal No. 9749 and 9750 of 2003.
D
P.H. Parekh, Nalini Chidambaram, E.R. Kumar, Debojyoti
Battacharya, Vishal Prasad, Anand Jha (for Parekh & Co.)
Nikhil Swani, Prabha Swami, A.M.P. Latha, Krishnamurthi
E
Swani, D. Durga Devi (for Vikas Mehta), R. Nedumaran and
Vimal Dubey for the appearing parties.
The Judgment of the Court was delivered by
MARKANDEY KAT JU, J. 1. These appeals have been
F
filed against the common judgment and order of the Madras
High Court dated 06.12.2001 in Writ Appeals Nos. 421 & 488
\ of 1985 etc. The facts have been stated out in great detail in
· the impugned judgment of the High Court in which the points
contended by the parties herein have been dealt with. Hence
G
we are not repeating the same here.
2. The appellants have set up new industries in which a
major raw material is said to be power (electricity). It is alleged
by the appellants that due to large consumption of power, the
H
1142
SUPREME COURT REPORTS
[2010] 11 S.C.R.
A economic viability of their project is very sensitive to power
tariffs. It is further alleged that the appellants were attracted by
the tariff concessions given under Tamil Nadu Revision of Tariff
Rates on Supply of Electrical Energy Act, 1978 (Tamil Nadu
Act 1 of 1979). In the Schedule to the said Act, new industries
B were to be given the benefit of concessional tariffs for the first
five years of production. It is alleged that on the basis of said
promise the appellants proceeded in setting up their projects
and established their industrial units which commenced
production. The appellants were sanctioned the power supply
c by the respondents and started production.
3. Subsequently, by notification dated 30.4.1982 the
respondents by revising the tariff introduced a new condition
to the tariff concession, namely, that the said concession was
not to apply from the year when the industry starts earning
P profits. On the basis of the above notification, the appellants
were asked by the respondents to give an undertaking, which
they gave, fearing disconnection of their power supply.
4. It is alleged by M/s. Kothari Industrial Corporation
E Limited, which is one of the appellants before us, that in the
year 1982-83 they disclosed a net profit of Rs.7,07,572/- which
under Income Tax Act was available for set off against carry
forward losses which amounted to Rs.45,20,611/- . Hence it
was alleged that in fact the said appellant incurred losses. The
F appellant has been served notice to pay Rs.2,09,433/- to avoid
disconnection of power supply.
5. The appellants have relied on the decisions of this
Court in Pawan Alloys & Casting (P) Ltd. vs. U.P. State
Electricity Board & Ors. (1997) 7 SCC 251, Southern
G Petrochemical Industries Company Limited vs. Electricity
Inspector and E. T.1.0. & Ors. (2007) 5 SCC 447, Shri Baku/
Oil Industries & Anr. vs. State of Gujarat & Anr. (1987) 1
SCC 31 etc. On the basis of the aforesaid decisions the
appellants relied on the doctrine of promissory estoppal and
H legitimate expectation.
KOTHARI INDUSTRIAL CORPORATION LTD. v. TAMIL1143
NADU ELECTRICITY BOARD [MARKANDEY KAT JU, J.]
6. On the other hand, the respondents have alleged that
A
there is no estoppel against the statute, and the amendment
to the Schedule by which the concession was restricted was
a legislative act. They have relied on the decisions of this
Court in Union of India & Ors. vs. Godfrey Philips India Limited
(1985) 4 SCC 369, State of Tamil Nadu vs. K. Sabanayagam
B
& Anr. (1998) 1 SCC 318 and Jalan Trading Co. (Pvt. Ltd.)
vs. Mill Mazdoor Union 1967(1) SCR 15. The respondents
have also alleged that since the appellants have given a
specific undertaking to abide by the G.O. dated 30.4.1982
they are estopped from challenging the same vide Kasinka c
Trading & Anr. vs. Union of India & Anr. (1995) 1 SCC 274
and Shrijee Sales Corporation & Anr. vs. Union of India
(1997) 3 SCC 398. The respondents have also alleged that
Section 4 of the 1978 Act empowered the Government to
amend the Schedule to the Act vide Tamil Nadu Electricity
D
Board vs. Status Spinning Mills Ltd. & Anr. (2008) 7 SCC
353.
7. We are of the opinion that there seems to be some
difference of opinion in the various decisions by different
benches of this Court. Hence the matter needs to be decided
E
by a larger bench of this Court, on the issue as to whether the
principles of promissory estoppel and legitimate expectation
are applicable in this case. The larger bench may also consider
whether the undertaking given by the appellants acts as an
estoppel against them.
F
8. Let the papers of this case be placed before Hon'ble
the Chief Justice of India for constitution of a larger bench.
K.K.T
Matters referred to the Larger Bench.