~~~~~~~~~~~ Antony Dominic, J. 1st respondent has set up an industrial unit availing of power supply from the appellants. Ext.P1 is a Government Order, which, among others, provided that new industries which start commercial production between the period from 1.1.1992 to 31.12.1996 will be exempted for 5 years from payment of enhanced power tariff which came into effect on 1.1.1992. Ext.P1 provided that the eligibility for the concessions should be certified by, among others, the Director of Industries and Commerce.
2. In so far as the 1st respondent is concerned, Ext.P4 certificate was issued by the Additional Director of Industries and Commerce certifying that they commenced commercial production with Diesel Generator Set (D.G. Set) on 2.5.1996 and that they are eligible for the concession during th period from 2.5.1996 to 2.5.2001. Certificate also stated that the unit was energised on 8.10.1999 with power connection by K.S.E.B.
3. The 1st respondent claimed the benefit of pre-revised tariff and the Board acting upon Ext.P4 certificate allowed the concession for a period of 5 years from 2.5.1996. However, the 1st respondent claimed that though commercial production was commenced from 2.5.1996, since the date of energisation with power supplied by the Board was only from 8.10.1999, they should be given the benefit of concession for a period of 5 years from 8.10.1999. That claim was rejected by Ext.P5 order of the Board and the same was affirmed by the Government in Ext.P9. Thereafter, Ext.P11 bill was issued and it was at that stage the Writ Petition was filed claiming the benefit of pre-revised tariff for a period of 5 years from 8.10.1999.
4. Before the learned Single Judge, the 1st respondent mainly placed reliance on Ext.P3, the Apex Court judgment in Civil Appeal No.8322/2001 to assert their entitlement for concessional tariff from 8.10.1999. In the judgment under appeal, the learned Single Judge held that the principles laid down by the Apex Court in Ext.P3 judgment are inapplicable to the case of the 1st respondent. However, the learned Single Judge further directed that the benefit be extended to the 1st respondent for a period of 5 years from 31.12.1996. It is aggrieved by this judgment, the appellants have filed this appeal.
5. We heard the learned senior counsel for the appellant, the learned counsel for the 1st respondent and the learned Government Pleader appearing for respondents 2 and 3.
6. The only issue that arises for our consideration is whether the learned Single Judge was justified in ordering that the benefit of pre-1992 tariff be extended to the 1st respondent for 5 years with effect from 31.12.1996. As we have already noticed, in terms of Ext.P1 Government Order only such new industries which have commenced commercial production between 1.1.1992 and 31.12.1996 are eligible for the benefit of the concession. Therefore, the period during which the concession is to be extended is to commence from the date of commercial production. Ext.P4 is the certificate of eligibility issued by the Additional Director of Industries and Commerce and as per this certificate, though with the D.G.Set, commercial production commenced on 2.5.1996 and the certified entitlement of the 1st respondent is for the period from 2.5.1996 to 2.5.2001. So long as the date 2.5.1996 remains in the certificate issued by the certifying authority as the date of commercial production, and the certificate is unchallenged, the 1st respondent could not have claimed the benefit from any day other than 2.5.1996.
7. The only exception that is possible can be in a case to which the principles laid down by the Apex Court in Ext.P3 judgment are applicable. Reading of Ext.P3 judgment shows that the Apex Court was dealing with a case, where, though the industry was ready for commercial production before 31.12.1996, it was rendered impossible on account of the delay and laches on the part of the Electricity Board in energising the unit. Therefore, the Supreme Court held that on equitable consideration irrespective of the delay, the appellant therein should be extended the benefit of a concessional tariff for 5 years from the date of commercial production. As rightly found by the learned Single Judge, the case of the 1st respondent is not similar to the case of the appellant in Ext.P3 and, therefore, this judgment in any manner improve their case.
8. During the course of the hearing, learned counsel for the 1st respondent relied on the judgment of the Apex Court in Civil Appeal Nos.10103 to 10106 of 2010 and contended that if for any reason delay has occurred on the part of the Board in providing power connection, that cannot be a reason for denying the benefit of pre-1992 tariff to a consumer. However, reading of the judgment shows that the appellants in those cases had set up the industries acting upon a promise made by the Government that during a period of 5 years from the date of commercial production, they would be exempted from power cut. Contrary to that, power cut was imposed and the Board issued orders compensating the consumers with a condition that it will be available only for the period during which electricity supply was reduced to less than 50%. In its judgment the Apex Court ordered that the entire loss should be compensated. Therefore, that was a case where there was a commitment on the part of the Board to supply uninterrupted power and those who suffered loss on account of the imposition of power cut were ordered to be compensated. The facts of the case of the 1st respondent is absolutely incomparable to the facts of the case dealt with by the Apex court. Therefore, the 1st respondent cannot take any assistance from the principles laid down by the Apex Court.
9. As we have already held having regard to the fact that Ext.P4 certificate of eligibility certifying the eligibility of the 1st respondent for 5 years from 2.5.1996, the learned Judge could not have directed that the benefit should be extended for a period of 5 years from 31.12.1996.
We, therefore, cannot sustain the judgment of the learned Single Judge to the above effect. The judgment will stand set aside and the appeal will stand allowed as above.
Sd/-
ANTONY DOMINIC, JUDGE.
Sd/- ALEXANDER THOMAS, JUDGE.
ps/20/6/2014 //True copy// PA to Judge