EXECUTIVE ENGINEER, UTTARANCHAL POWER CORPORATIONversusM/S. KASHI VISHWANATH STEEL LTD. & ORS.

                       [2010] 6 S.C.R. 1086


A       EXECUTIVE ENGINEER, UTTARANCHAL POWER
                     CORPORATION
                                 v.
         M/S. KASHI VISHWANATH STEEL LTD. & ORS.
                (Civil Appeal No. 1106 of 2007)
B
                           MAY 12, 2010

         [HARJIT SINGH BEDI AND T.5. THAKUR, JJ.)

        Uttar Pradesh Electricity Reforms Act, 1999 - Notification
C dated 07.08.2000 - Tariff Rate Schedule for supply of
    electricity - Levy of 15% surcharge on electricity supplied
    directly from independent feeder - Agreement between
    applicant and UP. Power Corporation for supply of electricity
    - Confusion as regard interpretation of tariff - Issuance of
D   circular that if consumers connected to independent feeders
    did not want electricity supply for 500 hours, no surcharge
    could be levied, provided consumer intimates Executive
    Engineer - Grant of exemption to applicant - Meanwhile writ
    petition by some other company challenging levy of
E   surcharge - High Court holding that consumers drawing power
    from independent feeders, entitled to rebate @1% for each
    10 hours shortfall on bill amount - Bifurcation of UP. Power
    Corporation - Establishment of Uttarakhand Power
    Corporation (UPC) - Withdrawal of exemption order by UPC
F   and issuance of revised bill - Challenge to - Writ petition
    allowed - Appeal before Supreme Court - Allowed holding
    that UPC did not make any such promise to consumers, thus,
    doctrine of promissory estoppel not applicable - Said order
    recalled - On rehearing of appeal, held: In absence of
    averment that there was a promise made by UP. Power
G   Corporation regarding supply of energy without payment of
    surcharge and in absence of any material to show that
    applicant acted upon any such promise, doctrine of
    promissory estoppel not applicable - Order of High Court set
    aside - Doctrines - Promissory estoppel.
H                                1086
 EXECUTIVE ENGINEER, UTIARANCHAL POWER CORPN. v. 1087
           KASHI VISHWANATH STEEL LTD.

     In terms of the Notification dated 07.08.2000, the Uttar A
Pradesh Electricity Regulatory Commission stipulated
the Tariff Rate Schedule for the supply of electricity. It
provided that the consume.rs opting for supply during the
restricted/peak hours were to pay an additional surcharge
of 15% on the bill amount. The consumers getting power B
supply from independent feeders emanating from 400/
220/132 KV sub-station were to pay an additional
surcharge of 15% on the bill amount subject to the
assured electricity supply of minimum 500 hours in a
month. In case of shortfall of electricity, the consumers c
were entitled to a rebate @1 % for each 10 hours shortfall
on the bill amo1.mt. The respondent company ~ntered into
an agreement with the Uttar Pradesh Power Corporation
Ltd. for the supply of electrical energy. There was some
confusion in regard to the interpretation of tariff. A D
circular was issued that if the consumers connected to
 independent feeders did not want electricity supply for
guaranteed period of 500 hours, no surcharge of 15%
could be levied provided they informed the Executive
 Engineer. The respondent wrote a letter to the Executive E
 Engineer that they did not require assured supply of
electricity for 500 hours and was granted exemption from
 payment of 15% surcharge from 24.10.2000. Meanwhile,
 LML company filed writ petition challenging levy of
surcharge on the total energy bill payable by it. The High
Court dismissed the petition. It held that the consumers F
drawing power from the independent feeders, were
entitled to a rebate @1 % tor each 10 hours shortfall on
the bill amount.

    Thereafter, upon bifurcation of U.P. Power               G
Corporation, the Uttarakhand Power Corporation (UPC)
was established. By order dated 07.12.2001, UPC
withdrew the exemption granted to the respondent by the
erstwhile U.P. State Power Corporation Ltd. from
24.10.2000 and issued a revised bill. The respondent filed   H
    1088    SUPREME COURT REPORTS                [2010] 6 S.C.R.


A writ petition challenging the same. The High Court
   allowed the ll'lrit petition holding that since the respondent
   company did not require assured supply of 500 hours
   electricity in a month, it was not liable to pay 15%
   surcharge; that the exemption granted by U. P. Power
B Corporation Ltd. was valid and in accordance with the
   Notification, thus struck down the demand raised by the
   Corporation. Thereafter, UPC as also LML company filed
   appeal before this Court. It was held that U. P. Power
   Corporation appears to have made a promise to
c consumers and the same was enforceable. As regard
   UPC it was held that it did not make any such promise
   to consumers, thus, promissory estoppel will not apply .
  .The issue regarding surcharge on consumers drawing
   power from independent feeder was pending before the
   Regulatory Commission and thus, was withdrawn. The
0
   CA No. 1106 of 2007 filed on behalf of UPC was allowed.
   Thereafter, the respondent filed IA in CA No. 1106 of 2007,
   before this Court seeking clarification of the order that
   UPC did not make any promise to consumers. The
   respondent contended that the promise was made by
E U.P. Power Corporation which was binding upon the
   Corporation as also its successor-in-interest-UPC after
   the same came into existence, thus was enforceable. The
   IA was disposed of. It was directed that the judgment
   dated 13.12.2007 of this Court in CA No. 1106 of 2007 be
F recalled. Hence the appeal.

        Allowing the appeal, the Court

      HELD: 1.1 In Writ Petition No. 942 of 2001 filed by the
G respondent-KVSL it was unequivocally admitted that the
  respondent-company was a consumer getting supply
  from an independent feeder emanating from 400/220/132
  KV sub station. With the coming into existence of State
  of Uttarakhand w.e.f. 9th November, 2000 a new Power
  Corporation for the said State was established on 1st
H April, 2001. The respondent-company's further case is
                                                                    -.
 EXECUTIVE ENGINEER, UTTARANCHAL POWER CORPN. v.       1089
           KASHI VISHWANATH STEEL LTD.

that Uttarakhand Power Corporation did not charge 15%          A
surcharge on monthly demand and energy charges for
the period April 2001 to October 2001 and that it is only
on 7th December, 2001 that the applicant received an
intimation that circular dated 8th September had been
revoked and letter dated 24th October cancelled. The U.P.      B
Electricity Regulatory Commission had approved a new
tariff by order dated 1st September, 2000 and U.P. State
Power Corporation had issued a consequential
Notification dated 10th July, 2001. The notification did not
any longer provide for 15% surcharge from consumers            c
getting supply of energy from independent feeders. [Para
17] [1101-B-E]

     1.2. While according to the applicant-KVSL circular
issued by the U.P. Power Corporation dated 8th
September, 2001 giving an option to the consumers was D
valid and in accordance with law, there is not even a
murmur in the writ petition filed by the respondent~
company to the effect that either the U.P. Power
Corporation or its successor had at any point of time
made any promise to the company that supply of energy E
would be without any surcharge notwithstanding the fact
that the tariff prescribed by the Regulatory Commission
envisaged the levy of surcharge on electricity supplied
directly from an independent feeder. There is similarly no
averment whatsoever in the writ petition to the effect that F
the respondent-KVSL had altered its position acting upon
any such promise. Not only that the agreements executed
between the parties, namely, KVSL on the one hand and
Power Corporation on the other also did not contain any
unequivocal promise for supply of energy, no matter the G
supply was made from an independent feeder. In the
absence of even an averment to the effect that there was
a promise made by the U.P. State Power Corporation
regarding supply of energy without payment of
surcharge and in the absence of any material to show H
    1090    SUPREME COURT REPORTS                [2010] 6 S.C.R.


A that the respondent-KVSL had indeed acted upon any
  such promise it is difficult to see how the said company
  can insist upon any such non-existent promise being
  made good. Before a party can rely upon on the doctrine
  of promissory estoppel ~t must make a specific
B averments and place material on record to demonstrate
  that a promise was indeed made to it. There is neither any
  averment nor any material to support the plea of
  promissory estoppel in the case at hand. [Para 17] (1101-
  E-H; 1102-A-C]
c      1.3. The High Court of Uttrakhand did not find a case
  in favour of the respondent-KVSL. It is one thing to say
  that the plea of promissory estoppel is available to a
  consumer but an entirely different thing to say that such
  a plea has been made good by the material on record.
D Therefore it cannot be accepted that any promise was
  made by the U.P. State Power Corporation to the
  respondent-KVSL which could justify the grant of any
  mandamus in its favour for making good any such
  promise. The order passed by the High Court in the writ
E petition filed by respondent-KVSL is set aside. [Paras 18,
  19 and 20] [1102-F-G]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1106 of 2007.
F       From the Judgment and order dated 17.01.2007 of the
    High Court of Uttaranchal at Nainital in W.P. No. 936 of 2001.

       Shanti Bhushan, Niraj Sharma, Vikrant Singh Sais and
    Sumit Kumar Sharma, for the Appellant.
G
        K.V. Viswanathan, Amit Bhandari, Neha, Abhishek
    Kaushik and Vikas Mehta, for the Respondents.

        The Judgment of the Court was delivered by

H       T.S. THAKUR, J. 1. This appeal by special leave arises
  EXECUTIVE ENGINEER, UTTARANCHAL POWER CORPN. v. 1091
     KASH! VISHWANA'rH STEEL LTD. [T.S. THAKUR, J.]

 out of an order dated 17th January, 2007 passed by the High      A
 Court of Uttaranchal at Nainital whereby Writ Petition No.936
 of 2001 filed by respondent M/s Kashi Vishwanath Steels Ltd.
 has been allowed and order dated 7th December, 2001 passed
 by the Executive Engineer (Electricity) Distribution Division,
 District Udham Singh Nagar, quashed.                             s
       2. Uttar Pradesh State Eledricity Board was established
  by the State of Uttar Pradesh in terms of the provisions of the
  Electricity (Supply) Act, 1948. With the enactment of Uttar
  Pradesh Electricity Reforms. Act, 1999 the Government
  constituted Uttar Pradesh Electricity Regulatory Commission. C
. In terms of a Notification dated 7th August, 2000 the
  Commission stipulated the tariff for the supply of electricity
  effective from 9th August, 2000. The rate schedule for large and
  heavy power, inter alia, provided that consumers who opt for
  power supply during the restricted/peak hours shall pay an D
  additional surcharge of 15% on the amount billed at the "Rate
  of Charge" under item-4A of the Schedule. It further provided
  that consumers getting power supply from independent feeders
  emanating from 400/220/132 KV sub-stations shall pay an
  additional surcharge of 15% on demand and energy charges · E
  subject to the condition that these consumers will get assured
  electricity supply of minimum 500 hours in a month. In case of
  shortfall in the guaranteed hours of electricity supply, the
  consumers were entitled to a rebate @ 1% for each 10 hours
  shortfall on the bill amount computed under "Rate of Charge". F
  Relevant portion of the Tariff Rate Schedule HV-2 forming part
  of Notification dated 7th August, 2000, reads as under:



      Notes:                                                      G

     (a) In respect of consumers who opt for power supply
     during restricted/peak hours an additional surcharge of
     15% on the amount billed at the "Rate of Charge" under
                                                                  H
    1092     SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A        item 4-A above, i.e. Demand Charge and Energy Charge
         shall be levied.

                However, in respect of consumers getting power
         supply on independent feeders emanating from 400/220/
         132 KV sub-stations an additional surcharge of 15% on
B
         demand and energy charges shall be charged further
         subject to the condition that these consumers will get an
         assured supply of minimum 500 hours in a month. In case
         of short fall in above guaranteed hours of supply a rebate
         @ 1% for each 10 hours short fall will be admissible on
c        the bill amount computed under "Rate of Charge".



          3. Respondent- Kashi Vishwanath Steels Ltd. (hereinafter
    referred to as the 'KVSL' for short) is a public limited company
0
    registered under the Companies Act. On 9th November, 1995
    it had entered into an agreement with Uttar Pradesh Power
    Corporation Ltd., Lucknow (respondent no.4 in this appeal) for
    the supply of electrical energy ipfor the production of Furnace
E   and Steel Rolling Manufacturing (Process) unit at Narayan
    Nagar Kashipur in the form of three phase Alternating Current
    at a declared pressure of 33000 Volts and a power of not
    exceeding 4800 K.V. amperes. The said agreement was
    followed by a fresh agreement executed on 28th March, 2000
    between the company and the Uttar Pradesh Power
F   Corporation Ltd., inter alia, providing that the company shall pay
    for the supply of energy at the rates stipulated by the supplier
    from time to time and that the rate schedule applicable at the
    time of execution of the agreement could be revised at the
    discretion of the supplier. With the tariff prescribed by the U.P.
G   Electricity Regulatory Commission becoming effective for the
    supply received by the consumer-company the latter became
    liable to pay in terms of the said tariff. Some confusion,
    however, appears to have arisen in regard to the interpretation
    of the tariff prescribed by the Commission particularly in relation
H   to the levy of 15% surcharge upon consumers who dr~!" power
 EXECUTIVE ENGINEER, UTTARANCHAL POWER CORPN. v. 1093
    KASH! VISHWANATH STEEL LTD. [T.S. THAKUR, J.]

from independent feeders. The Corporation purported to clear           A
the mist by issuing a circular dated 8th September, 2000
whereunder it purported to give certain guidelines to the
concerned subordinate officers and demanded strict
compliance thereof. The circular, inter alia, provided that if
consumers connected to independent feeders did not want                B
electricity supply for the guaranteed period of 500 hours, no
such surcharge of 15% could be levied provided they intimate
to the Executive Engineer that they do not want the guaranteed
supply for 500 hours. The relevant portion of the circular reads
asunder:                                                               C

      "2.(a) In the rate schedule HV-2, as a result of the guarantee
    . of 500 hours electricity supply of independent feeder from
      400, 220 and 132 KV sub stations, 15% surcharge shall
      be levied. Consumers of this category shall be ensured
      500 hours electricity supply per month. Due to lesser            D
      electricity supply than 500 hours, they shall be given 1%
      deduction for every ten hours in their electricity bill. If
      consumers connected with these independent feeders do
      not want guarantee of 500 hours electricity supply then, in
      that event, they shall not be imposed 15% surcharge in           E
      their bills. Such consumers shall intimate the Executive
      Engineer distribution by registered post that they do .not
      want guarantee of 500 hours electricity supply. The
      Executive Engineer shall issue office memo in this regard .
    . If any consumer of this category does not give any option        F
      then he shall be ensured 500 hours electricity supply and
      15% surcharge shall be taken. S.S.O./Junior Engineer shall
      be responsible to ensure that the consumer in question
      does not use electricity during the restricted period. If
      consumers of this category use electricity in the restricted     F
      period also then they shall be charged 15+15          =   30%
      surcharge."

    4. It was pursuant to the above circular that the KVSL
addressed two letters one dated 6th October, 2000 and the
                                                                       H
    1094    SUPREME COURT REPORTS                    [2010] 6 S.C.R.


A other dated 16th October, 2000 to the Executive Engineer of
  the Corporation to the effect that the former did not require the
  assured supply of electrical energy for 500 hours and that they
  may not be required to pay surcharge at the stipulated rate of
  15%. On receipt of the said letters the Executive Engineer
B issued an office memo dated 24th October, 2000 granting
  exemption to the KVSL from payment of 15% surcharge
  subject to the unit complying with the other conditions stipulated
  in the memo.

        5. In the meantime M/s L.M.L. Limited who had also
C entered into an agreement with U.P. State Electricity Board for
  supply of electrical energy for its factory at Kanpur filed Writ
  Petition No.40692 of 2000 in the High Court of Judicature at
  Allahabad challenging levy of surcharge on the total energy bill
  payable by it. The petitioner's case in that petition was that it
D was not only observing the peak hour restrictions but was not
  consuming power during the restricted hours hence was not
  liable to pay the surcharge of 15% being demanded from it. In
  the reply filed on behalf of the electricity supply company it was
  on the other hand stated that power was being supplied to the
E petitioner from an independent feeder emanating from 400/
  220/132 KVS and consequently the petitioner was liable to pay
  15% surcharge under the tariff determined by the U.P. Electricity
  Regulatory Commission. It was also stated that payment of
  15% surcharge by consumers drawing energy from an
F independent feeder was not subject to the observance of peak
  hours restrictions because those who consume power between
  6 p.m. to 1 p.m. had to pay an additional amount of 1%
  surcharge on the energy charge.

G        6. A Division Bench of the High Court of Allahabad
    dismissed the writ petition mentioned above holding that there
    was absolutely no confusion of any kind in the tariff approved
    by the Regulatory Commission to call for any clarification in the
    form of the circular referred to earlier. It was also declared that
    for consumers drawing power from independent feeders
H
 EXECUTIVE ENGINEER, UTTARANCHAL POWER CORPN. v. 1095
    KASHI VISHWANATH STEEL LTD. [T.S. THAKUR, J.]

emanating from 400/220/132 KVS sub- stations there existed         A
no provision in the tariff prescribed by theCommission requiring
them to exercise any option in the matter. The only benefit that
the consumers who drew power from such independent feeders
but who do not get supply for the minimum 500 hours in a month
were granted a rebate@ 1% for every 10 hours or part thereof       B
if the continuous supply had failed. The High Court observed:

    "Ther.e is absolutely no ambiguity or confusion of any kind
    in the tariff as approved by the Commission. It clearly
    contemplates two categories of consumers. One category C
    is of consumers who get power supply on independent
    feeders emanating from 400/220/132 KV sub stations.
    The two categories are wholly independent and distinct
    and they are not inter linked with each other. The third
    condition mentioned at the bottom of the box clearly shows
    that a consumer cannot get power supply in restricted D
     hours as a matter of right and he shall have to take
     permission from UPPCL with intimation to the
     Commission. It follows that if a consumer does not apply
    for permission from UPPCL and such a permission is not
     granted he shall not get power supply in restricted hours E
     and he will not be required to pay 15 per cent surcharge.
     However, so far as consumers getting power supply on
     independent feeders emanating from 400/220/132 KV sub
     stations are concerned, they have to pay 15 per cent
     surcharge on demand and energy charges. This levy of 15 F
     per cent surcharge is dependent only upon the fact that the
     consumer is getting power supply on an independent
     feeder emanating from 400/220/132 KV sub stations and
     it is not dependent upon getting power supply in restricted
     hours. It is also noteworthy that for such category of G
     consumers there is no provision for taking any option to
     the effect that he does not want an assured supply of 500
      hours in a month. The only benefit provided to him in the
      tariff is that he is assured of supply of minimum 500 hours
      in a month and in case of shortfall in the guaranteed hours H
    1096     SUPREME COURT REPORTS                   [2010] 6 S.C.R


A        of the supply, a rebate @ 1 per cent 10 hours or part
         thereof shall be admissible on the total amount computed
         under "Rate of Charge".

      7. Relying upon the view taken by the High Court in the
B above writ petition the Uttarakhand Power Corporation
  established upon bifurcation of the U.P. Power Corporation in
  terms of Section 63 of the U.P. Reorganisation Act issued an
  order dated 7th December, 2001 withdrawing the exemption
  granted to KVSL by the erstwhile U.P. State Power
  Corporation Ltd. The withdrawal order is in the following terms:
c
                "In the aforesaid context, in the light of judgment of
         the Hon'ble High Court, Allahabad the Uttar Pradesh Power
         Corporation ltd. vide order No.1423/HC/UPCL/Five-
         1974+204 C/2000 dated 8.9.2000 has been cancelled
D        from the date of its issuance itself. Accordingly, Memo
         No.3184Ni.Vi.kha/dated 24.10.2000 is cancelled from the
         date of issuance 24.10.2000. The bills of M/s
         Kashiviswanath are ordered to be amended in accordance
         with the concerned billing tariff since 8.9.2000.."
E
         8. Aggrieved by the above order KVSL filed writ petition
    No.936 of 2001 before the High Court of Uttaranchal
    challenging Note (a) of Clause IV, Rate-Schedule in Category
    HV-2 List II of the tariff to be unconstitutional and for quashing
    the revised bill issued to KVSL. A mandamus directing
F   Uttaranchal Corporation not to levy any surcharge on the supply
    energy to the consumer was also prayed for.

        9.The above petition was allowed by the High Court of
  Uttaranchal by its order dated 17th January, 2007. The High
G Court took the view that since the petitioner KVSL did not
  require assured supply of 500 hours electricity in a month it was
  not liable to pay 15% surcharge and that the exemption granted
  by the U.P. Power Corporation ltd. was valid and in
  accordance with the provisions of the Notification dated 8th
H September, 2000. The demand raised by the Corporation was
 EXECUTIVE ENGINEER, UTTARANCHAL POWER CORPN. v. 1097
    KASH! VISHWANATH STEEL LTD. [T.S. THAKUR. J.]

accordingly struck down. Aggrieved by the said order the          A
Uttaranchal Power Corporation filed Civil Appeal No.1106 of
2007 in this Court which was heard alongwith Civil Appeal
No.5789 of 2002 filed by LML Ltd. against the order passed
by the High Court of Allahabad dismissing Writ Petition
No.40692 of 2000 filed by the said company. Similar other         B
appeals filed by other units against identical orders passed by
the High Court of Allahabad were also heard and disposed of
by this Court by a common order dated 13th December, 2007.
This Court held that in so far as the U.P. Power Corporation
had made a promise to anyone of the consumers the same was        c
enforceable. In the case of Uttarakhand Power Corporation,
however, this Court found no such promise to have been made
to the consumer. Civil Appeal No.1106/2007 filed by the
Utt~rakhand Power Corporation against the judgment of the
High Court of Uttarakhand was accordingly allowed on that         0
basis. In so far as appeals arising out of the judgment of the
Allahabad High Court and touching the question of surcharge
on consumers drawing power from independent feeders were
concerned the same were allowed to be withdrawn in view of
the fact that several matters involving the said question were
                                                                  E
pending before the Regulatory Commission. The appellants
were permitted to agitate the said point before the
Commission. The relevant portion of the order passed by this
Court may at this stage be extracted:

    "50. Similarly Uttaranchal Power Corporation also does not    F
    appear to have made such a promise. The doctrine of
    promissory estoppel in those cases also will have no
    application.

    51. In view of the fact that several matters are pending      G
    before the Commission on question of independent feeder
    we need not express any opinion thereupon. If any appeal
    is pending before the Commission on the said question it
    would decide the same independent of the same
    irrespective of the result of this decision. We, therefore,
                                                                  H
    1098    SUPREME COURT REPORTS                 [2010] 6 S.C.R.

A       without expressing any opinion on the said question,
        permit the appellants to agitate the same point before the
        Commission.

        52. We, therefore, allow these appeals only to the extent
        mentioned hereinbefore in terms of the promise made by
B
        U.P. Power Corporation and allow the appeals on
        question of independent feeder to be withdrawn subject to
        the observations made by us hereinabove. 53. Civil
        Appeal No. 5789 of 2002 which relates to Kanpur
        Electricity Supply Company is dismissed.
c
        54. Civil Appeal No. 1106 of 2007 filed on behalf of
        Uttaranchal Power Corporation is allowed.

        55. There shall, however, be no order as to costs.
D
                                                                      ..
        SLP (C) No. 6721 of 2007

        The only issue involved in this petition is the question of
        independent feeder and the appeal being pending before
        the Commission, this special leave petition is permitted
E       to be withdrawn.
                                                              Sd/-
                                                     (S.B. SINHA)
                                                              Sd/-
F                                         (HARJIT SINGH BEDI)"

        10. l.A.No.2 of 2008 in Civil Appeal No.1106 of 2007 was
  filed in this Court for seeking clarification/modification of the
  above order primarily on the ground that the observations made
G in para 50 are erroneous since Uttarakhand Power Corporation
  was non-existent during the relevant period. There was
  according to the applicants no question of any such promise
  having been made to respondent-KSVL by a non-existent entity.
  The promise was according to the applicant made by U.P.
H Power Corporation which was binding upon the Corporation as
     EXECUTIVE ENGINEER, UTIARANCHAL POWER CORPN. v. 1099
        KASHI VISHWANATH STEEL LTD. [T.S. THAKUR, J.)

    also its successor in-interest, namely, Uttarakhand Power              A
    Corporation after the same came into existence w.e.f. 9th
    November, 2001. It is further stated that the dispute in the instant
    case was with regard to the period between September 2000
    when the exemption of surcharge was granted to the consumer
    and 1st September, 2001 when the same was discontinued.                B

         11. In substance the case of the applicant was that a
    representation/promise had been made to it by the U.P. Power
    Corporation which promise having been held enforceable qua
    other units similarly situated as the applicant, could not be          C
    ignored in so far as the applicant was concerned. The promise
    was according to the applicant binding even upon the
    successor-Corporation, namely, Uttarakhand Power


-   Corporation and the very fact that no promise was made by
    Uttarakhand Power Corporation did not make any difference
    so long as the liability arising out of the promise made by the        D
    U.P. State Corporation was clear and legally enforceable.

         12. The above application was heard and finally disposed
    of by a Bench of Hon'ble Harjit Singh Bedi and Hon'ble Aftab
    Alam, JJ. with the following direction:                                E
         "Learned counsel for the parties agree that the judgment
         dated 13.12.2007 of this Court be recalled in C.A.
         No.1106 of 2007. We order accordingly. C.A. No.1106 of
         2007 will be heard on its own merit."
                                                                           F
        13. It is in the light of the above order that this appeal has
    been heard for disposal afresh.

    ,   14. The order of discontinuing the surcharge w.e.f. 1st
    September, 2001 reads:                                                 G
         'The U.P.E.R.C. in terms has recorded that discontinuation
         of 15% surcharge is due to (i) inability/incapability on the
         part of UPPCL for technical' and operational reasons to
         ensure the guaranteed supply of 500 hours, (ii) it was
         difficult for UPPCL even to distinguish between the two           H
    1100   SUPREME COURT REPORTS                [2010) 6 S.C.R.


A       consumers on independent feeder who asked for assured
        supply and who do not, (iii) most of the consumers having
        opted against this agreement and (iv) the financial
        implication was also negligible if the scheme was
        discontinued."
B
        15. Appearing for the appellant Mr. Shanti Bhushan,
  learned senior counsel strenuously argued that the circular
  issued by the U.P. State Corporation modifying the tariff
  prescribed by the Regulatory Commission was wholly without
  any jurisdiction and could be recalled by the Uttarakhand Power
C Corporation w.e.f. the date the same was issued. Inasmuch as
  such a withdrawal was ordered by the Corporation it committed
  no illegality especially when the withdrawal was supported by
  clear and authoritative pronouncement of the High Court of
  Allahabad stating that the grant of exemption tantamounted to
D modifying the tariff which modification the corporation was not
  legally competent to make. It was further argued by Mr. Shanti
                                                                    -
  Bhushan that there was no question of any promise having
  been made either by U.P. State Corporation or the Uttarakhand
  Power Corporation. In the absence of any such promise and
E in the absence of any material to show that the petitioner had
  acted upon any such promise and changed its position, there
  was no question of interfering with the order withdrawing the
  exemption on the basis of the principles of equitable estopple.

F      16. On behalf of the respondent-KVSL, it was on the other
  hand, submitted that since a promise was found to have been
  made by the U.P. Power Corporation to other consumers and
  since the said promise has been held to be enforceable, there
  was no justification for taking a different view insofar as the
G respondent-company is concerned. It was also submitted that
  once U.P. Corporation is held to be bound by the promise
  made by it the Uttarakhand Corporation which came into
  existence upon reorganization of the State had no option but
  to make the said promise good. It could not retrospectively
  withdraw the same only with a view to recover money which
H
 EXECUTIVE ENGINEER, UTIARANCHAL POWER CORPN. v. 1101
    KASHI VISHWANATH STEEL LTD. [T.S. THAKUR, J.]

even t~e U.P. State Power Corporation would not have been          A
entitled 1to recover.

      17. In Writ Petition No.942 of 2001 filed by the respondent-
KVSL the material facts were not disputed. It was unequivocally
admitted that the respondent-company was a consumer getting B
supply from an independent feeder emanating from 400/220/
132 KV sub station. It was also not in dispute that with the
coming into existence of State of Uttarakhand w.e.f. 9th
November, 2000 a new Power Corporation for the said State
was ~stablished on 1st April, 2001. The respondent-company's C
further case is that Uttarakhand Power Corporation did not
charge 15% surcharge on monthly demand and energy charges·
for the period April 2001 to October, 2001 and that it is only
on 7th December, 2001 that the applicant received an
intimation that circular dated 8th September had been revoked
and letter dated 24th October cancelled. That the U.P. Electricity · D
Regulatory Commission had approved· a new tariff by order
dated 1st September, 2000 and U.P. State Power Corporation
had issued a consequential Notification dated 10th July, 2001
is also not in dispute. The said notification, it is noteworthy,
does not any longer provide for 15% surcharge from consumers E
getting supply of energy from independent feeders. Suffice it
to say that while according to the applicant-KVSL circular
issued by the U.P. Power Corporation dated 8th September,
2001 giving an option to the consumers was valid and in
accordance with law, there is not even a murmur in the writ F
petition filed by the respondent-company to the effect that either
the U.P. Power Corporation or its successor had at any point
of time made any promise to the company that supply of energy
would be without any surcharge notwithstanding the fact that the
tariff prescribed by the Regulatory Commission envisaged the G
levy of surcharge on electricity supplied directly from an
independent feeder. There is similarly no averment whatsoever
in the writ petition to the effect that the respondent-KVSL had
 altered its position acting upon any such promise. Not only that
 the agreements executed between the parties, namely, KVSL H
    1102       SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A   on the one hand and Power Corporation on the other also did
    not contain any unequivocal promise for supply of energy, no
    matter the supply was made from an independent feeder. In the
    absence of even an averment to the effecrthat there was a
    promise made by the U.P. State Power Corporation regarding
s   supply of energy without payment of surcharge and in the
    absence of any material to show that the respondent-KVSL had
    indeed acted upon any such promise it is difficult to see how
    the said company can insist upon any such non-existent
    promise being made good. It is trite that before a party can rely
c   upon on the doctrine of promissory estoppel it must make a
    specific averments and place material on record to
    demonstrate that a promise was indeed made to it. There is
    neither any averment nor any material to support the plea of
    promissory estoppel in the case at hand.
D          18. It is also noteworthy that the High Court of Uttarakhand
  did not find a case in favour of the respondent-KVSL on the
  ground which is now sought to be urged in the present appeal.
  It is one thing to say that the plea of promissory estoppel is
  available to a consumer but an entirely different thing to say that
E such a plea has been made good by the material on record.

      19. We have, therefore, no hesitation in repelling the
  contention that any promise was made by the U.P. State Power
  Corporation to the respondent-KVSL which could justify the
F grant of any mandamus in its favour for making good any such
  promise.

       20. We allow this appeal and set aside the order 17 th
  January, 2007 passed by the High Court of Uttaranchal in Writ
  Petition No.936 of 2001 filed by respondent-KVSL with costs
G of Rs.50,000/-.

    N.J.                                             Appeal allowed.