' A steel furnace is said to have been established by the petitioner for running and operating its industry who is an industrial consumer of electricity. An incentive policy for revival of steel melting industry was introduced by the respondents on 15-4-1999 clause 10 whereof provided for 10% rebate to the consumers. Such a rebate was granted to the petitioner, which was availed. It was, however, on 12-7-2003 when a notice was issued to the petitioner, which reads as follows:-- "As you are aware that during 1999-2000, a sum of Rs,433,194 has been rebated against subject cited reference No, on account of 10% rebate on 25% increased consumption which has been clarified by the authority vide No,G.M.C.S. No,53-74/ GMCS/DG(C)/D(R&CP)/57000 dated 16-1-2003 that 10% rebate was permissible to increased consumption gained on existing load and not through extension in load. You falls under this category. Hence you are reliable to availe the rebate already given to you, so the above amount is being debited to your Account during 7/2003 with the request to pay with monthly bill up to 27-8-2003."
' This notice/order was assailed before this Court. The said petition was disposed of on 24-7-2003 with the direction to the petitioner to approach the respondent through a representation for the redressal of his grievance. A representation so made, however, was disposed of as per communication dated 15-8-2003 by taking the view that the incentive policy had been misinterpreted and misconceived and that the later clarification dated 16-1-2003 could not be termed as amendment or alteration in the basic policy dated 15-4-1999. The present petition has been filed to assail the same. Since Writ Petitions Nos.1100 and 1101 of 2004 arise in somewhat similar circumstances the same have also been heard today and shall stand disposed of through this common judgment.
2. The learned counsel contends that such a clarification dated 16-1-2003 which has been made basis for the impugned order was not retrospective in its operation nor could be construed like that and that the rebate/benefit which was indeed allowed by the respondents to the petitioner and was availed cannot be rescinded or withdrawn. To support his contention reference has been made by him to Messrs Army Welfare Sugar Mills Ltd. And others v. Federation of Pakistan 1992 SCM R 1652; Taj Mahal Hotel Limited and others v. Karachi Water and Sewerage Board and others 1997 SCM R 503; Saad Ashraf J.S. v. Muhammad Ashraf Nadeem and others 1998 SCM R 1687; Province of East Pakistan v. Sharafatullah and 87 others PLD 1970 SC 514; Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad v. Mirza Muhammad Irfan Baig and 4 others 1992 SCM R 2430 and Molasses Trading and Export (Pvt.) Limited v.
Federation of Pakistan and others 1993 SCM R 1905
3. The learned counsel for the respondents on the other hand contends that the benefit of the incentive policy could only be extended to lawful users and consumers and no right could be claimed by the petitioner due to any omission or wrong interpretation by the functionaries of the respondent. It is contended that the later "clarification" cannot be treated as amendment in the incentive policy as no new conditions had been laid down.
4. There is no denial that an incentive policy was announced and was circulated pursuant whereof the petitioner was given the benefit thereof. It is so evident even from notice dated 12-7-2003 itself which purports to withdraw the rebate availed by the petitioner. The withdrawal of the said rebate and the benefit was due to the later "clarification" issued on 16-1-2003. Whether the same is considered as "clarification" or "amendment" is not decisive of the matter. There is no cavil that such instruments issued by the executive/administrative functionaries do not have retrospective effect and cannot operate to nullify the rights accrued and transactions which are past and closed. Even the principle of locus poenitentiae as was explained by the Honourable Supreme Court of Pakistan in Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 is fully attracted. It was laid down that "the order under which the payment was made to the respondent had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot when came to know that on the basis of incorrect letter, the respondent was granted Grade-TI, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case.
However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when the latter remained in the field.----.We consider that as far as the recovery of the amount in question is concerned, the principle of locus poenitentiae would be applicable and the appellants are not entitled to recover the same.
' In the instant case as well the respondent had themselves introduced an incentive scheme and the petitioner was given benefit thereof as it was understood, construed and interpreted by the functionaries of the respondents. In case it had not been correctly interpreted by the respondents the petitioner is not to be blamed for the same nor to be made to suffer. The respondent has every authority to interpret the same correctly and to clarify the correct position. However, while doing so, the benefit already given and availed cannot be withdrawn nor recovery of the said amount be effected from the petitioner. The notice dated 12-7-2003 and the later view taken by the respondents on the representation of the petitioner and communicated through letter dated 15-8- 2003 to the extent it purports to withdraw the benefit already availed by the petitioner is not consistent with the law on the subject, and is thus not sustainable. The same is thus declared as of no legal effect.
' In view of the above, the petition is accepted in the above terms with no order as to costs.