K.S.E.Board Vs. Peekey Re-rolling Mills (P) Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1133812
CourtKerala High Court
Decided OnMar-14-2014
JudgeHONOURABLE MR.JUSTICE ANTONY DOMINIC
AppellantK.S.E.Board
RespondentPeekey Re-rolling Mills (P) Ltd.
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice antony dominic & the honourable mr. justice anil k.narendran friday, the14h day of march201423rd phalguna, 1935 wa.no. 581 of 2013 in op.10833/1997 ------------------------------------- against the order/judgment in op108331997 of high court of kerala dated1911-2012 appellants : respondents3to6in o.p. : ------------------------------------- 1. kerala state electricity board, rep. by its secretary, vydhyuthi bhavan, pattom.p.o., thiruvananthapuram.2. chief engineer (electrical distribution - north), k.s.e.board, kozhikode.3. special officer (revenue), kerala state electricity board, vydhyuthi bhavan, pattom.p.o., thiruvananthapuram.4. the assistant executive engineer, electrical major section, feroke. by advs.sri.p.santhalingam (sr.) sri.s.sharan, sc, k.s.e.board sri.raju joseph (sr.) sri.k.t.paulose, sc, kseb respondents: petitioner in o.p./respondents1& 2 : ------------------------------------------------ 1. peekey re-rolling mills (p) ltd., having its registered office at9374-i, koyasan koya road, kozhikode - 673 001, rep. by its managing director p.k.ahammed. wa.no.581 of 2013 in op.10833/1997 2. state of kerala, represented by secretary to government, power a department, secretariat, thiruvanathapuram - 695 001.3. the general manager, district industries centre, kozhikode - 673 001. r1 by adv. sri.c.p.mohammed nias by sr. government pleader sri.mohammed shafi this writ appeal having been finally heard on1403-2014, the court on the same day delivered the following: antony dominic & anil k.narendran, jj.-------------------------------------------------------------------- w.a.no.581 of 2013 -------------------------------------------------------------------- dated this the 14th day of march, 2014 judgment antony dominic, j.this writ appeal is filed by respondents 3 to 6 in o.p.no.10833 of 1997 which was filed by the first respondent in this appeal.2. the first respondent is a company incorporated under the companies act, 1956 and engaged in the manufacture of iron bars and rods. by ext.p1 dated 06/9/1991, they obtained registration with government of india. thereafter by ext.p2 dated 30/03/1994 they were sanctioned power allocation to the extent of 1500 kva at 11 kv with contract demand of 1500 kva to their factory. subsequently, they submitted ext.p4 dated 11/5/1994 and ext.p7 dated 29/9/1994 requesting for additional power allocation of 2500 kva, 2000 kva respectively. these applications were considered by the board and the board w.a.no.581 of 2013 2 issued ext.p9 order dated 16/6/1995, according administrative sanction. ext.p16 is the agreement executed between the first respondent and the appellants for the supply of the additional quantity of 4500 kva.3. meanwhile the government of kerala issued ext.p18 order dated 06/2/1992 granting the benefit of pre 1992 tariff to industries, which had started commercial production between 01/01/1992 to 31/12/1996. subsequently, the government issued ext.p20 order dated 26/11/1993, clarifying that the industries mentioned at serial nos.1 to 7 will not be eligible for state investment subsidy. sl.no.7 of the said order reads thus:- "7. power intensive units based on electro thermal/electro chemical processors or units where total power requirement exceeds 2500 kva of contract load and where cost of power is more than 25% of cost of production of the items manufactured except where the units generate their power requirements in excess of 2500 kva of contract load by own captive power." w.a.no.581 of 2013 3 in paragraph 4 of the order it was also stated thus:- "4. government further order that the industries listed out above will not be eligible for any financial assistance/loan/tax exemption from government including electricity tariff concession and duty exemption. this will not, however, apply to loans by financial institutions/banks. but the eligible grant/loan under s.c.p/tsp schemes will continue to be sanctioned as at present." 4. therefore, though the order issued was in respect of state investment subsidy by virtue of paragraph 4 of the said order, the industries included in the list were held to be ineligible for electricity tariff concession and duty exemption. subsequently, the government issued ext.p32 order dated 19/4/1994 in which it was clarified thus:- "3. government wish to clarify that the financial assistance/loan/tax exemption from government, including electricity, tariff concession and duty exemption will continue to be/will be available to all industries which were provisionally registered before w.a.no.581 of 2013 4 31/12/1993. those industries listed out in para -1 of the g.o. read above and provisionally registered on or after 31/12/1993 alone will be ineligible for financial assistance/loan/tax exemption from government, including electricity, tariff concession and duty exemption. provisional registration for the purpose of large and medium units will be taken to mean as in para-2 of the g.o. read above, viz, the date of s.i.a. registration/filing of i.e.m. with government of india/letter of intent/submission of application for financial assistance, as the case may be." as a result of the clarification thus issued, any industry, which obtained provisional registration before 31/12/1993, will be eligible for benefits including concessional tariff and duty exemption.5. based on the order dated 06/02/1992, first respondent applied for the benefit of pre 1992 tariff. insofar the initial allotment 1500 kva is concerned, the claim was allowed by ext.p12 order dated 02/02/1996 for the period from 03/08/1995 to 30/03/2000. however, the claim of the first w.a.no.581 of 2013 5 respondent for concessional tariff in respect of the additional 4500 kva was rejected by ext.p21 order dated 22/5/1997 stating thus:- "this is inform that your application for concessional power tariff could not be considered as the unit comes under the purview of power intensive unit." following ext.p21 amounts due from the first respondent were demanded by ext.p22. it was aggrieved by ext.p21 and seeking a direction to the respondents in the writ petition to extend them the benefit of pre 1992 tariff in relation to 4500 kva, that the writ petition was filed.6. by the judgment under appeal, the learned single judge upheld the entitlement of the first respondent, set aside ext.p21 and directed the 3rd respondent herein to issue eligibility certificate enabling the first respondent to obtain the benefit of pre 1992 tariff as claimed by them. it is this judgment, which is challenged before us. w.a.no.581 of 2013 6 7. we heard the learned senior counsel for the appellants, the learned counsel for the first respondent and the learned government pleader appearing for respondents 2 and 3.8. the first respondent's claim was rejected by ext.p21 on the basis that, it is a power intensive unit and therefore is ineligible for the benefit claimed. the basis on which, the said finding in ext.p21 has been arrived at is clause 1.7 of ext.p20. this finding was relying on the judgment of hon'ble apex court in the first respondent's own case in secretary to government and others vs. peekay re-rolling mills (p) ltd. [(2007) 4 scc310 and the judgment of this court in peekay re-rolling mills pvt.ltd. vs. secretary to government and others [2011 (1) khc826db)] which was rendered in compliance with the directions contained in the former judgment. reading of the division bench judgment shows that the division bench elaborately dealt with clause 1.7 of ext.p20, under point no.1 and concluded that the word w.a.no.581 of 2013 7 'and' occurring in clause 7 has to be read as 'and' and not as 'or' as contended by the learned government pleader.9. it is true that as contended by the appellants that a closer reading of paragraph 1.7 of ext.p20, which we have already extracted in the earlier part of this judgment, shows that it contains two parts. the first part is in respect of "power intensive units based electro thermal/electro chemical processors" and the second part is in respect of "units where total power requirement exceeds 2500 kva of contract load and where cost of power is more than 25% of cost of production of the items manufactured." the division bench judgment interprets only the second part of clause 1.7 and not the first part which, according to the appellants, is also relevant.10. during the hearing of this writ appeal two orders issued by the first appellant were referred to. the first order is b.o.no.118/93 (tc1/s/2086/92) dated 18/1/1993, which being relevant is extracted below for reference:- w.a.no.581 of 2013 8 kerala state electricity board abstract power allocation to power intensive units - clarification - orders issued. ======================================== technical cell b.o.no.118/93 (tc1/s/2086/92). dtd., thiruvanthapuram, 18.1.1993. ======================================== read :- 1. b.o.no.1374/92(tc1/s/2086/92) dt. 7.8.92.2. minutes of the discussions, the chairman and member (ele:) had with the representatives of ht/eht consumers association on 3.12.92 at kalamassery. order as decided in the meeting held on 3.12.92, vide minutes read above, the board hereby clarifies that the industries requiring power above 5 mva (including additional load also) shall be classified as power intensive units and when power allocation is granted to such industries, they shall be insisted to use their own captive power to the extent of at least 50% of their required demand. the board order read above stands modified to this extent. by order of the board sd/- (k.ramachandra kurup) secretary11 the second order is b.o.no.1431/93(tc1/s/2086/92) dated 22/7/1993 which also is extracted below for reference:- w.a.no.581 of 2013 9 kerala state electricity board abstract power allocation to power intensive units - clarification - orders issued. ======================================== technical cell b.o.no.1431/93 (tc1/s/2086/92). thiruvanthapuram, dt.22-7-1993 ======================================== read :- 1. b.o.no.1374/92(tc1/s/2086/92) dt. 7.8.92.2. b.o.no.118/93 (tc1/s/2086/92) dt.18-1-93. order in partial modification to the board order read as 2nd paper above the board hereby issues the following orders:1. industries having connected load exceeding 3 mva and having load factor not less than 60% shall be defined as power intensive industries.2. industries requiring load above 5 mva shall install their own captive power to meet 50% of their total connected load.3. the total connected load (inclusive of additional load) shall be taken as a criterion in (1) and (2) above. the guide-lines mentioned above shall be taken care of while allocating power. the board orders read above stands modified accordingly. by order of the board sd/- (k.ramachandra kurup) secretary w.a.no.581 of 2013 10 12. copies of these orders were also furnished to the learned counsel for the first respondent and their submissions were also heard. reading of these orders show that, by the first order the electricity board has clarified that industries, requiring power above 5 mva, including additional load, shall be classified as power intensive unit. by the second order dated 22/7/1993 the earlier order of 18/1/1993 was partially modified and it was ordered by the board that industries having connected load exceeding 3 mva and having load factor not less than 60% shall be defined as power intensive industries. we should also notice that these orders were not brought to the notice of the division bench which decided, the first respondent's case in peekay re-rolling mills pvt.ltd. vs. secretary to government and others [2011 (1) khc826db)] and the judgment does not make reference to these orders. as a result of these orders any industry, which is having connected load exceeding 3 mva and having load factor of not less than 60%, is a power intensive industry. w.a.no.581 of 2013 11 13. insofar as the first respondent is concerned, as a result of the additional power allocation of 4500 kva in relation to ext.p16 agreement entered into, their connected load exceeded far above 3 mva. clause 13(a) of exts.p3 and p16 agreements also show that the power factor shall not be less than 0.85. if that be so, going by the definition of the term "power intensive industry", the first respondent fall within that category. if that be so, they also fall within the first category of power intensive units in clause 1.7 of ext.p20 order.14. however, as we have already noticed ext.p32 order issued by the government of kerala on 19/4/1994 clarifies that the financial assistance including electricity tariff concession and duty exemption will continue to be available to all industries, which were provisionally registered before 31/12/1993. it is further clarified that, those industries listed out in paragraph 1 of ext.p20 and provisionally registered on or after 31/12/1993, alone will be ineligible for financial assistance including electricity tariff concession and duty w.a.no.581 of 2013 12 exemption. the order also says that the provisional registration for the purpose of medium units such as the first respondent, will be taken to mean the date of sia registration/filing of i.e.m with government of india/letter of intent/submission of application for financial assistance, as the case may be. insofar as this case is concerned, according to the petitioner, ext.p1, is an acknowledgment issued by the under secretary to government of india, ministry of industry, government of india, department of industrial development, entrepreneur assistance unit, acknowledging the receipt of the first respondent's memorandum for the manufacture of the products mentioned therein.15. therefore, even if it is assumed that, as a result of the board orders dated 18/1/1993 and 22/7/1993, the first respondent is to be treated as a power intensive unit, by virtue of clarification issued by the government as per paragraph 4 of ext.p32 order, that by itself will not render the first respondent ineligible for the benefit of the pre 1992 power w.a.no.581 of 2013 13 tariff ordered by the government as per ext.p18 dated 06/02/1992. therefore, the learned single judge has rightly disapproved the reason contained in ext.p21 rejecting the claim of the first respondent on the ground that it is a power intensive unit.16. however, the entitlement of an industrial unit for the benefit of pre 1992 tariff depends upon the other conditions which are be satisfied by it under ext.p18. in this context we should also notice the contentions raised by the learned senior counsel for the appellants that the first respondent having availed of the benefit of pre 1992 tariff on the ground that it is a new industrial unit, could not have availed of the same benefit in respect of the additional quantity allotted to the first respondent, which, according to him could have been availed of only by an existing unit. in other words, what is contended by the learned counsel is that an industry cannot avail of the benefit as a new industry and also as an existing industry. however, this contention was answered by the learned counsel w.a.no.581 of 2013 14 for the first respondent contending that original allotment was of 1500 kva and the additional allotments of 2500 and 2000 kva were availed of by the first respondent before commencing commercial production and that therefore, the entire quantity of 6000 kva allotted to the first respondent was an allotment made to a new industrial unit and before 31/12/1996. therefore, according to him, the benefit was availed of by the first respondent as a new industrial unit and no part of the benefit was claimed by it as an existing industrial unit.17. another contention raised by the learned counsel for the appellants was that ext.p21 order rejecting the claim of the first appellant makes reference to an application made before the district industries centre for the benefit of ext.p18. it was contended that eligibility is to be certified in terms of the provisions of ext.p18 and that in respect of industries which have not been financed by ksidc or kfc and which is not a ssi unit, the eligibility is to be certified by the director of w.a.no.581 of 2013 15 industries and commerce of the government of kerala. therefore, according to him the requirement of production of a certificate by the director of industries and commerce was not satisfied by the first respondent and therefore they could not have claimed the benefit of ext.p18 insofar as the additional allotment covered by ext.p16 agreement is concerned. however, the learned counsel for the first respondent contended that the procedure prescribed required them only to make the application before the district industries centre and it was for that authority to process their application further for the eventual issue of certificate of eligibility by the director of industries and commerce, as contemplated in ext.p18. according to him, instead of completing the procedure prescribed, at the threshold itself, by ext.p21 order, the application was rejected by the general manager and it was therefore, that the certificate of the director, was absent in this case. he, therefore, contended that the absence of certificate cannot now be pressed into service against the first w.a.no.581 of 2013 16 respondent. yet another issue that is raised is that the first respondent did not commence commercial production utilising the additional power allotted within the time specified in ext.p18. the learned counsel for the appellant also made reference to ext.p11 order allotting additional power of 2000 kva, which inter alia specified that power can be supplied only after commissioning 10 mva (new) transformer at 220 kv substation, nallalam, however, this contention of the learned counsel for the appellants was resisted by the learned counsel appearing for the first respondent referring to paragraph 7 of his affidavit dated 22/02/2002 filed in cmp.no.10238 of 2002, where it was stated that commercial production started subsequent to ext.p16 and after additional power allocation to the tune of power 4500 kv, on 31/12/1996. counsel also produced before us, certificate dated 20/3/1997 issued by the assistant executive engineer, electrical major section, ferok, certifying that the connected load 4402.10 kw with contract demand of 4500 kva was energized on 29/12/1996. w.a.no.581 of 2013 17 18. as we have already stated, several conditions are required to be satisfied for the benefit of ext.p18. the rejection of their claim by ext.p21 was only on the ground that the first respondent is a power intensive unit. in other words, none of the authorities, who are to consider the claim for pre 1992 tariff have considered whether the first respondent had satisfied the conditions for claiming the same. in such circumstances, the question arises as to what is the proper procedure to be adopted by this court once in ext.p21 is found to be untenable. as we have already stated, the only ground, on which the claim of the first respondent for concessional pre 1992 power tariff was rejected by ext.p21 order, was that it is a power intensive unit. based on ext.p32 government order dated 19/4/1994, we have already concluded that, even if the said contention, which prima facie is factually correct, is upheld, that by itself will not disentitle the first respondent for the benefit of pre 1992 concessional tariff. however, we have also found that, for a consumer to get the benefit of ext.p18 w.a.no.581 of 2013 18 government order, various conditions incorporated therein are to be satisfied. this includes the availing of supply within the time specified, that the unit should have commenced within the time specified and that the entitlement should be certified by the authority designated in the order. no officer of the government or the board has, except stating that the first respondent is a power intensive unit, adjudicated whether the relevant conditions are satisfied or assessed the first respondent's entitlement for the benefit under ext.p18. it was, despite the above factual assumption that relying on the statutory provisions and the government order, that are relied on by the parties, the learned judge directed that the certificate of eligibility should be issued by the 3rd respondent entitling the first respondent to avail of the benefit of pre 1992 tariff in respect of the additional power of 4500 kva allotted to it. this, in our view, could not have been done and once ext.p21 was found to be unsustainable, the proper course that this court should have adopted was to have remitted the w.a.no.581 of 2013 19 matter to the competent authority with a direction to consider the materials produced by the 1st respondent and to assess whether the 1st respondent is eligible for the benefit of ext.p18 and on that basis to take a decision thereon.19. therefore, we are unable to sustain the direction issued by the learned single judge requiring the 3rd respondent to issue the eligibility certificate and on that basis to extent the benefit of pre 1992 tariff to the 1st respondent. in such circumstances, we dispose of this writ appeal upholding the order of the learned single judge setting aside ext.p21. however we vacate the direction of the learned single judge requiring the third respondent to issue eligibility certificate to the 1st respondent and on that basis to extend the benefit of ext.p18 government order dated 06/02/1992. instead, we direct that the 3rd respondent, to whom the application was submitted by the 1st respondent shall reconsider the matter either by himself or by transmitting the same to the competent authority of his department and on that basis the 3rd w.a.no.581 of 2013 20 respondent or the competent authority shall consider the eligibility of the 1st respondent for the benefit of ext.p18 dated 06/02/1992 in respect of the additional quantity of 4500 kva electrical energy supplied to it pursuant to ext.p16 agreement. before such orders are passed if the 1st respondent desires to be heard, they will be at liberty to seek such an opportunity also. we direct that orders in this regard shall be passed as expeditiously as possible at any rate within three months of receipt of a copy of this judgment. the writ appeal is disposed of as above. we place on record our gratitude to sri.raju joseph, learned senior counsel for the appellants and sri.mohammed nias, learned counsel for the first respondent, for the valuable assistance rendered by them. antony dominic, judge anil k.narendran, judge skj
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE14H DAY OF MARCH201423RD PHALGUNA, 1935 WA.No. 581 of 2013 IN OP.10833/1997 ------------------------------------- AGAINST THE ORDER

/JUDGMENT

IN OP108331997 of HIGH COURT OF KERALA DATED1911-2012 APPELLANTS : RESPONDENTS3TO6IN O.P. : ------------------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM.P.O., THIRUVANANTHAPURAM.

2. CHIEF ENGINEER (ELECTRICAL DISTRIBUTION - NORTH), K.S.E.BOARD, KOZHIKODE.

3. SPECIAL OFFICER (REVENUE), KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM.P.O., THIRUVANANTHAPURAM.

4. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, FEROKE. BY ADVS.SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN, SC, K.S.E.BOARD SRI.RAJU JOSEPH (SR.) SRI.K.T.PAULOSE, SC, KSEB RESPONDENTS: PETITIONER IN O.P./RESPONDENTS1& 2 : ------------------------------------------------ 1. PEEKEY RE-ROLLING MILLS (P) LTD., HAVING ITS REGISTERED OFFICE AT9374-I, KOYASAN KOYA ROAD, KOZHIKODE - 673 001, REP. BY ITS MANAGING DIRECTOR P.K.AHAMMED. WA.No.581 of 2013 IN OP.10833/1997 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, POWER A DEPARTMENT, SECRETARIAT, THIRUVANATHAPURAM - 695 001.

3. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KOZHIKODE - 673 001. R1 BY ADV. SRI.C.P.MOHAMMED NIAS BY SR. GOVERNMENT PLEADER SRI.MOHAMMED SHAFI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON1403-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & ANIL K.NARENDRAN, JJ.

-------------------------------------------------------------------- W.A.No.581 of 2013 -------------------------------------------------------------------- Dated this the 14th day of March, 2014 JUDGMENT

ANTONY DOMINIC, J.

This Writ Appeal is filed by respondents 3 to 6 in O.P.No.10833 of 1997 which was filed by the first respondent in this appeal.

2. The first respondent is a company incorporated under the Companies Act, 1956 and engaged in the manufacture of iron bars and rods. By Ext.P1 dated 06/9/1991, they obtained registration with Government of India. Thereafter by Ext.P2 dated 30/03/1994 they were sanctioned power allocation to the extent of 1500 KVA at 11 KV with contract demand of 1500 KVA to their factory. Subsequently, they submitted Ext.P4 dated 11/5/1994 and Ext.P7 dated 29/9/1994 requesting for additional power allocation of 2500 KVA, 2000 KVA respectively. These applications were considered by the Board and the Board W.A.No.581 of 2013 2 issued Ext.P9 order dated 16/6/1995, according administrative sanction. Ext.P16 is the agreement executed between the first respondent and the appellants for the supply of the additional quantity of 4500 KVA.

3. Meanwhile the Government of Kerala issued Ext.P18 order dated 06/2/1992 granting the benefit of Pre 1992 Tariff to industries, which had started commercial production between 01/01/1992 to 31/12/1996. Subsequently, the Government issued Ext.P20 order dated 26/11/1993, clarifying that the industries mentioned at Serial Nos.1 to 7 will not be eligible for state investment subsidy. Sl.No.7 of the said order reads thus:- "7. Power intensive units based on electro thermal/electro chemical processors or units where total power requirement exceeds 2500 KVA of contract load and where cost of power is more than 25% of cost of production of the items manufactured except where the units generate their power requirements in excess of 2500 KVA of contract load by own captive power." W.A.No.581 of 2013 3 In paragraph 4 of the order it was also stated thus:- "4. Government further order that the industries listed out above will not be eligible for any financial assistance/loan/tax exemption from Government including electricity tariff concession and duty exemption. This will not, however, apply to loans by financial institutions/banks. But the eligible grant/loan under S.C.P/TSP schemes will continue to be sanctioned as at present." 4. Therefore, though the order issued was in respect of state investment subsidy by virtue of paragraph 4 of the said order, the industries included in the list were held to be ineligible for electricity tariff concession and duty exemption. Subsequently, the Government issued Ext.P32 order dated 19/4/1994 in which it was clarified thus:- "3. Government wish to clarify that the financial assistance/loan/tax exemption from Government, including electricity, tariff concession and duty exemption will continue to be/will be available to all industries which were provisionally registered before W.A.No.581 of 2013 4 31/12/1993. Those industries listed out in para -1 of the G.O. read above and provisionally registered on or after 31/12/1993 alone will be ineligible for financial assistance/loan/tax exemption from Government, including electricity, tariff concession and duty exemption. Provisional registration for the purpose of large and medium units will be taken to mean as in para-2 of the G.O. read above, viz, the date of S.I.A. registration/filing of I.E.M. with Government of India/Letter of Intent/submission of application for financial assistance, as the case may be." As a result of the clarification thus issued, any industry, which obtained provisional registration before 31/12/1993, will be eligible for benefits including concessional tariff and duty exemption.

5. Based on the order dated 06/02/1992, first respondent applied for the benefit of Pre 1992 Tariff. Insofar the initial allotment 1500 KVA is concerned, the claim was allowed by Ext.P12 order dated 02/02/1996 for the period from 03/08/1995 to 30/03/2000. However, the claim of the first W.A.No.581 of 2013 5 respondent for concessional tariff in respect of the additional 4500 KVA was rejected by Ext.P21 order dated 22/5/1997 stating thus:- "This is inform that your application for concessional power tariff could not be considered as the unit comes under the purview of Power intensive unit." Following Ext.P21 amounts due from the first respondent were demanded by Ext.P22. It was aggrieved by Ext.P21 and seeking a direction to the respondents in the Writ Petition to extend them the benefit of Pre 1992 Tariff in relation to 4500 KVA, that the Writ Petition was filed.

6. By the judgment under Appeal, the learned Single Judge upheld the entitlement of the first respondent, set aside Ext.P21 and directed the 3rd respondent herein to issue eligibility certificate enabling the first respondent to obtain the benefit of Pre 1992 Tariff as claimed by them. It is this judgment, which is challenged before us. W.A.No.581 of 2013 6 7. We heard the learned Senior counsel for the appellants, the learned counsel for the first respondent and the learned Government Pleader appearing for respondents 2 and 3.

8. The first respondent's claim was rejected by Ext.P21 on the basis that, it is a power intensive unit and therefore is ineligible for the benefit claimed. The basis on which, the said finding in Ext.P21 has been arrived at is Clause 1.7 of Ext.P20. This finding was relying on the judgment of Hon'ble Apex Court in the first respondent's own case in Secretary to Government and others Vs. Peekay Re-rolling Mills (P) Ltd. [(2007) 4 SCC310 and the judgment of this Court in Peekay Re-Rolling Mills Pvt.Ltd. Vs. Secretary to Government and Others [2011 (1) KHC826DB)] which was rendered in compliance with the directions contained in the former judgment. Reading of the Division Bench judgment shows that the Division Bench elaborately dealt with Clause 1.7 of Ext.P20, under point No.1 and concluded that the word W.A.No.581 of 2013 7 'and' occurring in clause 7 has to be read as 'and' and not as 'or' as contended by the learned Government Pleader.

9. It is true that as contended by the appellants that a closer reading of paragraph 1.7 of Ext.P20, which we have already extracted in the earlier part of this judgment, shows that it contains two parts. The first part is in respect of "power intensive units based electro thermal/electro chemical processors" and the second part is in respect of "units where total power requirement exceeds 2500 KVA of contract load and where cost of power is more than 25% of cost of production of the items manufactured." The Division Bench judgment interprets only the second part of clause 1.7 and not the first part which, according to the appellants, is also relevant.

10. During the hearing of this Writ Appeal two orders issued by the first appellant were referred to. The first order is B.O.No.118/93 (TC1/S/2086/92) dated 18/1/1993, which being relevant is extracted below for reference:- W.A.No.581 of 2013 8 KERALA STATE ELECTRICITY BOARD Abstract Power allocation to power intensive units - clarification - orders issued. ======================================== TECHNICAL CELL B.O.No.118/93 (TC1/S/2086/92). Dtd., Thiruvanthapuram, 18.1.1993. ======================================== Read :- 1. B.O.No.1374/92(TC1/S/2086/92) dt. 7.8.92.

2. Minutes of the discussions, the Chairman and Member (Ele:) had with the representatives of HT/EHT consumers association on 3.12.92 at Kalamassery. ORDER

As decided in the meeting held on 3.12.92, vide minutes read above, the Board hereby clarifies that the Industries requiring power above 5 MVA (including additional load also) shall be classified as power intensive units and when power allocation is granted to such industries, they shall be insisted to use their own captive power to the extent of at least 50% of their required demand. The Board Order read above stands modified to this extent. By order of the Board Sd/- (K.RAMACHANDRA KURUP) SECRETARY11 The second order is B.O.No.1431/93(TC1/S/2086/92) dated 22/7/1993 which also is extracted below for reference:- W.A.No.581 of 2013 9 KERALA STATE ELECTRICITY BOARD Abstract Power allocation to power intensive units - Clarification - Orders issued. ======================================== TECHNICAL CELL B.O.No.1431/93 (TC1/S/2086/92). Thiruvanthapuram, Dt.22-7-1993 ======================================== Read :- 1. B.O.No.1374/92(TC1/S/2086/92) dt. 7.8.92.

2. B.O.No.118/93 (TC1/S/2086/92) dt.18-1-93. ORDER

In partial modification to the Board order read as 2nd paper above the Board hereby issues the following orders:

1. Industries having connected load exceeding 3 MVA and having load factor not less than 60% shall be defined as power intensive industries.

2. Industries requiring load above 5 MVA shall install their own captive power to meet 50% of their total connected load.

3. The total connected load (inclusive of additional load) shall be taken as a criterion in (1) and (2) above. The guide-lines mentioned above shall be taken care of while allocating power. The Board orders read above stands modified accordingly. BY ORDER

OF THE BOARD Sd/- (K.RAMACHANDRA KURUP) SECRETARY W.A.No.581 of 2013 10 12. Copies of these orders were also furnished to the learned counsel for the first respondent and their submissions were also heard. Reading of these orders show that, by the first order the Electricity Board has clarified that industries, requiring power above 5 MVA, including additional load, shall be classified as power intensive unit. By the second order dated 22/7/1993 the earlier order of 18/1/1993 was partially modified and it was ordered by the Board that industries having connected load exceeding 3 MVA and having load factor not less than 60% shall be defined as power intensive industries. We should also notice that these orders were not brought to the notice of the Division Bench which decided, the first respondent's case in Peekay Re-Rolling Mills Pvt.Ltd. Vs. Secretary to Government and Others [2011 (1) KHC826DB)] and the judgment does not make reference to these orders. As a result of these orders any industry, which is having connected load exceeding 3 MVA and having load factor of not less than 60%, is a power intensive industry. W.A.No.581 of 2013 11 13. Insofar as the first respondent is concerned, as a result of the additional power allocation of 4500 KVA in relation to Ext.P16 agreement entered into, their connected load exceeded far above 3 MVA. Clause 13(a) of Exts.P3 and P16 agreements also show that the power factor shall not be less than 0.85. If that be so, going by the definition of the term "power intensive industry", the first respondent fall within that category. If that be so, they also fall within the first category of power intensive units in Clause 1.7 of Ext.P20 order.

14. However, as we have already noticed Ext.P32 order issued by the Government of Kerala on 19/4/1994 clarifies that the financial assistance including electricity tariff concession and duty exemption will continue to be available to all industries, which were provisionally registered before 31/12/1993. It is further clarified that, those industries listed out in paragraph 1 of Ext.P20 and provisionally registered on or after 31/12/1993, alone will be ineligible for financial assistance including electricity tariff concession and duty W.A.No.581 of 2013 12 exemption. The order also says that the provisional registration for the purpose of medium units such as the first respondent, will be taken to mean the date of SIA registration/filing of I.E.M with Government of India/Letter of Intent/submission of application for financial assistance, as the case may be. Insofar as this case is concerned, according to the petitioner, Ext.P1, is an acknowledgment issued by the Under Secretary to Government of India, Ministry of Industry, Government of India, Department of Industrial Development, Entrepreneur Assistance Unit, acknowledging the receipt of the first respondent's memorandum for the manufacture of the products mentioned therein.

15. Therefore, even if it is assumed that, as a result of the Board Orders dated 18/1/1993 and 22/7/1993, the first respondent is to be treated as a power intensive unit, by virtue of clarification issued by the Government as per paragraph 4 of Ext.P32 order, that by itself will not render the first respondent ineligible for the benefit of the Pre 1992 power W.A.No.581 of 2013 13 Tariff ordered by the Government as per Ext.P18 dated 06/02/1992. Therefore, the learned Single Judge has rightly disapproved the reason contained in Ext.P21 rejecting the claim of the first respondent on the ground that it is a power intensive unit.

16. However, the entitlement of an industrial unit for the benefit of Pre 1992 Tariff depends upon the other conditions which are be satisfied by it under Ext.P18. In this context we should also notice the contentions raised by the learned Senior counsel for the appellants that the first respondent having availed of the benefit of Pre 1992 Tariff on the ground that it is a new industrial unit, could not have availed of the same benefit in respect of the additional quantity allotted to the first respondent, which, according to him could have been availed of only by an existing unit. In other words, what is contended by the learned counsel is that an industry cannot avail of the benefit as a new industry and also as an existing industry. However, this contention was answered by the learned counsel W.A.No.581 of 2013 14 for the first respondent contending that original allotment was of 1500 KVA and the additional allotments of 2500 and 2000 KVA were availed of by the first respondent before commencing commercial production and that therefore, the entire quantity of 6000 KVA allotted to the first respondent was an allotment made to a new industrial unit and before 31/12/1996. Therefore, according to him, the benefit was availed of by the first respondent as a new industrial unit and no part of the benefit was claimed by it as an existing industrial unit.

17. Another contention raised by the learned counsel for the appellants was that Ext.P21 order rejecting the claim of the first appellant makes reference to an application made before the District Industries Centre for the benefit of Ext.P18. It was contended that eligibility is to be certified in terms of the provisions of Ext.P18 and that in respect of industries which have not been financed by KSIDC or KFC and which is not a SSI unit, the eligibility is to be certified by the Director of W.A.No.581 of 2013 15 Industries and Commerce of the Government of Kerala. Therefore, according to him the requirement of production of a certificate by the Director of Industries and Commerce was not satisfied by the first respondent and therefore they could not have claimed the benefit of Ext.P18 insofar as the additional allotment covered by Ext.P16 agreement is concerned. However, the learned counsel for the first respondent contended that the procedure prescribed required them only to make the application before the District Industries Centre and it was for that authority to process their application further for the eventual issue of certificate of eligibility by the Director of Industries and Commerce, as contemplated in Ext.P18. According to him, instead of completing the procedure prescribed, at the threshold itself, by Ext.P21 order, the application was rejected by the General Manager and it was therefore, that the certificate of the Director, was absent in this case. He, therefore, contended that the absence of certificate cannot now be pressed into service against the first W.A.No.581 of 2013 16 respondent. Yet another issue that is raised is that the first respondent did not commence commercial production utilising the additional power allotted within the time specified in Ext.P18. The learned counsel for the appellant also made reference to Ext.P11 order allotting additional power of 2000 KVA, which inter alia specified that power can be supplied only after commissioning 10 MVA (new) transformer at 220 KV Substation, Nallalam, However, this contention of the learned counsel for the appellants was resisted by the learned counsel appearing for the first respondent referring to paragraph 7 of his affidavit dated 22/02/2002 filed in CMP.No.10238 of 2002, where it was stated that commercial production started subsequent to Ext.P16 and after additional power allocation to the tune of power 4500 KV, on 31/12/1996. Counsel also produced before us, certificate dated 20/3/1997 issued by the Assistant Executive Engineer, Electrical Major Section, Ferok, certifying that the connected load 4402.10 KW with contract demand of 4500 KVA was energized on 29/12/1996. W.A.No.581 of 2013 17 18. As we have already stated, several conditions are required to be satisfied for the benefit of Ext.P18. The rejection of their claim by Ext.P21 was only on the ground that the first respondent is a power intensive unit. In other words, none of the authorities, who are to consider the claim for Pre 1992 Tariff have considered whether the first respondent had satisfied the conditions for claiming the same. In such circumstances, the question arises as to what is the proper procedure to be adopted by this Court once in Ext.P21 is found to be untenable. As we have already stated, the only ground, on which the claim of the first respondent for concessional pre 1992 power tariff was rejected by Ext.P21 order, was that it is a power intensive unit. Based on Ext.P32 Government Order dated 19/4/1994, we have already concluded that, even if the said contention, which prima facie is factually correct, is upheld, that by itself will not disentitle the first respondent for the benefit of pre 1992 concessional Tariff. However, we have also found that, for a consumer to get the benefit of Ext.P18 W.A.No.581 of 2013 18 Government Order, various conditions incorporated therein are to be satisfied. This includes the availing of supply within the time specified, that the unit should have commenced within the time specified and that the entitlement should be certified by the authority designated in the order. No officer of the Government or the Board has, except stating that the first respondent is a power intensive unit, adjudicated whether the relevant conditions are satisfied or assessed the first respondent's entitlement for the benefit under Ext.P18. It was, despite the above factual assumption that relying on the statutory provisions and the Government Order, that are relied on by the parties, the learned Judge directed that the certificate of eligibility should be issued by the 3rd respondent entitling the first respondent to avail of the benefit of Pre 1992 Tariff in respect of the additional power of 4500 KVA allotted to it. This, in our view, could not have been done and once Ext.P21 was found to be unsustainable, the proper course that this Court should have adopted was to have remitted the W.A.No.581 of 2013 19 matter to the competent authority with a direction to consider the materials produced by the 1st respondent and to assess whether the 1st respondent is eligible for the benefit of Ext.P18 and on that basis to take a decision thereon.

19. Therefore, we are unable to sustain the direction issued by the learned Single Judge requiring the 3rd respondent to issue the eligibility certificate and on that basis to extent the benefit of Pre 1992 Tariff to the 1st respondent. In such circumstances, we dispose of this Writ Appeal upholding the order of the learned Single Judge setting aside Ext.P21. However we vacate the direction of the learned Single Judge requiring the third respondent to issue eligibility certificate to the 1st respondent and on that basis to extend the benefit of Ext.P18 Government Order dated 06/02/1992. Instead, we direct that the 3rd respondent, to whom the application was submitted by the 1st respondent shall reconsider the matter either by himself or by transmitting the same to the competent authority of his department and on that basis the 3rd W.A.No.581 of 2013 20 respondent or the competent authority shall consider the eligibility of the 1st respondent for the benefit of Ext.P18 dated 06/02/1992 in respect of the additional quantity of 4500 KVA electrical energy supplied to it pursuant to Ext.P16 agreement. Before such orders are passed if the 1st respondent desires to be heard, they will be at liberty to seek such an opportunity also. We direct that orders in this regard shall be passed as expeditiously as possible at any rate within three months of receipt of a copy of this judgment. The Writ Appeal is disposed of as above. We place on record our gratitude to Sri.Raju Joseph, learned Senior counsel for the appellants and Sri.Mohammed Nias, learned counsel for the first respondent, for the valuable assistance rendered by them. ANTONY DOMINIC, JUDGE ANIL K.NARENDRAN, JUDGE skj