T. Meena Kumari, J.
1. This writ petition is filed to issue a writ in the nature of writ of mandamus declaring that the petitioner is entitled to rebate in power tariff for the additional two years to be met out of the industries budget as provided in G.O. Ms. No. 375 Industries and Commerce (LA.) Department, dated 23-8-1985 and consequently direct the respondents to release to the petitioner the amount of Rs. 24,89,937-00 and Rs. 17,68,097-00 towards 25% power tariff rebate for the 4th and 5th years respectively after commencement of regular production together with interest at 18% per annum.
2. Heard the learned Counsel appearing for the parties.
3. It is contended that the petitioner is engaged in the business of manufacture of Ferro Chrome at Visakhapatnam and was registered for availing industrial incentives provided by the Government of Andhra Pradesh under G.O. Ms. No. 375 Industries and Commerce (LA.) Department dated 23-8-1985 (for short 'the G.O.'), bywhich, the concessional tariff for the initial three years now provided by the Andhra Pradesh State Electricity Board for certain industries would be extended for two more years, that the concessional tariff for the last two years will be met from the industries budget as per clause 1I-B (Growth Centres) and Sub-clause (ii) thereof deals with 'Power' incentives available. It has been contended that the petitioner has started production, according to the averments made in the writ petition, with effect from 16-9-1988. However, the petitioner was billed by the Andhra Pradesh State Electricity Board in the 4th and 5th years and the rebate amount calculated at 25% is to be reimbursed by the Industries Department, Government of Andhra Pradesh. As the Electricity Board was not allowing 25% rebate in the monthly bills, in the initial three years, the petitioner filed W.P.No.7558 of 1989 before this Court against the Andhra Pradesh State Electricity Board for a direction that it should allow rebate for five years with an interim prayer that rebate must be allowed for three years. It is stated that interim orders were, accordingly, granted.
4. While so, on 1-8-1987, the 3rd respondent issued certificate of eligibility to the petitioner stating that the petitioner can apply for investment assessment subsidy of 10%, deferment of sales tax, concessional power at 25% for two years, 4th and 5th years of production. On 11-1-1993, the petitioner applied to 3rd respondent claiming Rs. 24,89,937-00 towards 25% power rebate for the 4th year of the commencement of regular production. On 23-12-1993 the petitioner made similar application for the 5th year for Rs. 17,68,097/-. The respondents were bound to release the amounts since the power rebate during the 4th and 5th year is to be met out of Industries Department budget. However, by letter dated 26-5-1994, the 3rd respondent informed the petitioner that the petitioner isnot entitled to the rebate since the A.P. State Electricity Board in its BP No. 1098 dated 8-12-1997 had withdrawn the benefit for initial three years and, therefore, the petitioner cannot claim rebate for the 4th and 5th years. The petitioner made several reminders, but no fruitful result is yielded. On 22-8-1995, WP No. 7558 of 1989 filed against the A.P. State Electricity Board was allowed by a Division Bench of this Court holding that the petitioner, who started production on 16-9-1988, that is, before withdrawal of the rebate by the Government in G.O. Ms. No. 379 dated 27-7-1989, is eligible for rebate in power tariff for three years from 16-9-1988 as against the A.P. State Electricity Board since the writ petition was directed only against A.P. State Electricity Board. With regard to the two years period, the Division Bench, in WP No. 7558 of 1989 observed as follows:
'Tlie learned standing Counsel for the State Electricity Board says that inasmuch as the Government has not been made a party to the writ petition; and as the financial burden has to be borne by the State Government, the petitioner-industry is not entitled for rebate in power tariff for the five year period as prayed in the writ petition. We are inclined to agree with the submission. When the petitioner is basing its claim on an order passed by the Government under which the financial obligation was taken over by the Government, in the absence of the Government being made a party to the writ petition, we cannot issue any direction which will have the effect of burdening the Government financially.'
5. The application made by the petitioner has been rejected by the respondents by proceedings dated 2-3-1998 by the 2nd respondent in D.Dis.Lr. No. 30/ 1/7/0178/OI78/ID merely on the ground that the High Court of A.P. has specifically pointed out that the petitioner industry is entitled for 25% concessional power tariff for a period of only three years with effectfrom 16-9-1988, and no further relief need be granted to the said industry for the 4th and 5th years. The said order is impugned in this writ petition.
6. Learned Counsel for the petitioner submits that as per G.O. Ms. No. 375, the petitioner is entitled for the 25% tariff rebate for the period for the first three years from the Electricity Board and the concessional tariff for the last two years, which has to be met from the industries budget. Learned Counsel also further submitted that the observations of the Division Bench in WP No. 7558 of 1989 had passed on the technical ground, as the Government is not made a party and the Division Bench has not passed any order against the Government and hence the petitioner is entitled to receive 25% of tariff concession for the balance two years. Learned Counsel also further argued that it would not be a res judicata for the petitioner to claim 25% power tariff rebate in the subsequent proceedings and hence passing of impugned order on the ground that the Division Bench has negatived is illegal. The impugned order was passed in a routine manner and not in accordance with law.
7. On the other hand, learned Government pleader submitted that the petitioner is bound by the orders of the Division Bench, as it refused to grant the relief on the ground that the Government is not made a party and the principles of res judicata will apply for a fresh writ petition seeking similar relief.
8. In this case, it is an admitted fact that the petitioner has started production from 16-09-1988 onwards and the Electricity Board has released 25% tariff rebate for three years in pursuance of G.O. Ms. No. 375 and in pursuance of the orders passed by a Division Bench of this Court in WP No. 7558 of 1989. But, however, it isto be seen that 25% tariff rebate has to be borne by the electricity board for the balance two years and it should be out of industrial budget. Even though the Division Bench had allowed the writ petition but not granted the relief for rebate for the 4th and 5th year on the ground that the Government was not made as party to the writ petition and the recording of finding is purely on technical grounds. It has to be examined whether the observation of the Division Bench as to the 'not making the Government as a party', would amounts to res juidicata.
9. Learned Counsel also relied on the, decision of the Supreme Court in Sheodan Singh v. Daiyao Kunwar, : 3SCR300 , wherein it is held:
'In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiffs appearance, or on the ground of non-joinder of parties or mis-joinder of parties or multifariousness, or on the ground that the suit was baldy framed, or on the ground of technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit.'
10. In Shri Inacio Martins Deceased Through LRs. v. Narayan Hari Naik and Ors., : 2SCR1015 , the Supreme Court held that when the first suit filed for declaration without seeking consequentialrelief of possession was dismissed on technical ground and that the issue regarding status of the plaintiff as a lessee was not settled once for all, the issue could not be stated to be barred by res judicata in the subsequent suit brought by the lessee for possession of the demised property.
11. In State of Maharashtra and another v. National Const. Co. and another, : 1SCR293 , it is held by the Supreme Court that former suit dismissed on a technical ground of non-joinder cannot operate as res judicata.
12. The Division Bench had dismissed the WP No. 7558 of 1989 against the Government only on the technical ground as the Government is not made a party respondent and no decision is there, on merits, regarding the eligibility of the petitioner to claim 25% of tariff rebate for the 4th and 5th year. In the above circumstances, it is to be held, relying on the decisions cited supra, it is to be held that the dismissal of WP No. 7558 of 1989 would not operate as res judicata. In the above circumstances, the impugned order is set aside. The writ petition is allowed. The matter is remanded back to the authorities to consider the matter afresh, after affording an opportunity of hearing to the petitioner, and pass appropriate orders, in accordance with law, within a period of three months from the date of receipt of a copy of this order. No costs.