IMPORTANT POINT
Industrial Policy – Electricity Incentives – Date of energisation has been considered to be touchstone for granting exemption from enhanced power tariff.

JUDGMENT :

Rastogi, J.

1. Leave granted.

2. The instant appeals are directed against the judgment and order dated 22nd November, 2018 followed with order dated 29th July, 2019 passed by the High Court of Kerala at Ernakulam.

3. The seminal facts relevant for the purpose of disposal of the present appeals are that respondent no.1 is an industrial unit which started its commercial production on 26th March, 1995 and the unit was energised on 16th September, 1995.

4. The Government of Kerala under its GO dated 6th February, 1992 granted certain incentives in respect of electricity for new industrial units starting commercial production between 1st January, 1992 and 31st December, 1996 for a period of 5 years in regard to payment of enhanced rate of tariff which came into effect from 1st January, 1992.

5. In the first round of litigation, the dispute that arose was as to whether the respondent (industrial unit) is entitled to claim benefit of incentive from the date of commercial production i.e. 26th March, 1995 or from the date of energisation i.e. 16th September, 1995 for a period of 5 years, but the Division Bench of the High Court under its judgment dated 18th January, 2005 held that the crucial date in terms of the GO issued by the Government of Kerala dated 6th February, 1992 is the date of commencement of commercial production and the respondent (industrial unit) started its commercial production on 26th March, 1995 and accordingly while disposing of the petition filed at the instance of the respondent herein returned a finding that the date of commercial production in respect of the respondent (industrial unit) is 26th March, 1995 and the claim for concessional tariff for a period upto 16th September, 2000 based on the date of energisation came to be rejected. The operative part of the Order dated 18th January, 2005 is referred hereunder:-

“We are of the view, crucial date is date of commencement of commercial production. Certificate produced by the petitioner would show the date of commencement of commercial production on 26.03.1995. In the above circumstances, the claim of the petitioner for concessional tariff for a period up to 16.09.2000 cannot be granted.”

6. It reveals from the record that after dismissal of the writ petition by judgment and order dated 18th January, 2005, a review application was filed by the respondents and it was prayed that instead of the date of commencement of commercial production, date of energisation has been considered by the Kerala State Electricity Board (hereinafter referred to as “the Board”) granting concession to other industrial units. Taking note of the statement made by the respondent(industrial unit), the review petition came to be disposed of by an order dated 8th March, 2007 granting liberty to the respondent (industrial unit) to file a representation before the Board, if so advised.

7. Against the aforesaid orders, the appellants filed Special Leave Petition (Civil) No.13408 of 2007 before this Court which came to be dismissed by an order dated 20th February, 2009.

8. In view of the liberty granted by the Division Bench of the High Court while disposing of the review application by order dated 8th March, 2007, representation was filed by the respondent (industrial unit) and that came to be rejected by the Board by a self-contained reasoned order dated 31st August, 2007.

9. That gave a fresh cause of action and a writ petition came to be preferred at the instance of the respondents. The only contention advanced and persuaded the learned Single Judge of the High Court in the second round of litigation was that a benefit of 5 years’ exemption for enhanced power tariff has been granted to another industrial unit, M/s Patspin India Ltd., from the date of energisation and accordingly it was directed that the respondent(industrial unit) is also entitled to claim the benefit of 5 years’ exemption of enhanced power tariff from the date of energisation. The writ petition was disposed of by the l