The beneficiary of a concession granted as a policy of the Government cannot be asked to produce evidence of compliance long after the expiry of the concession period, especially when the eligibility, grant, and continuance were to be at the behest, supervision, and monitoring of entities enjoined with duties to the State and its citizens.

Vinod Chandran, J.

The judgment of the learned Single Judge in O.P.No.9565/1996 stands challenged before us in this appeal by the petitioner, M/s Binani Zinc Limited, a Company established in the year 1966.

2. Availability of cheap power and uninterrupted supply is an essential precondition for rapid industrialization. And industrialization is an essential pre-requisite for economic growth of any State. This is a classic case of how the successive dispensations of governance, in this State; going by the sobriquet of “Gods Own Country”, have turned the industrial climate of the State to one worse than that of any imaginable purgatory. The State extends promises of power supply, both uninterrupted and at concessional rates, to lure industrialists and entrepreneurs to set up new and expand, diversify or modernize the old, industrial establishments. When that is done and the period of concession is over the entire State machinery is unleashed on these establishments, often with an uncalled for vengeance, to take back the concessions with levy of interest and penalty, driving the industries to abrupt closure. Allegations are made, as in this case, of the terms and conditions of the concessional scheme having been not complied with, raising serious questions on the efficiency of those entities including the K.S.E. Board, all under the Government control tasked with monitoring the grant of these concessions and its continuance.

3. The appellant-Company had carried out modernization and technology up-gradation in accordance with Exhibit P1 notification and the eligibility having been certified by the appropriate authority the concessional tariff was granted by the respondent-KSEB. Subsequently the Companies eligibility, except for a reservation made of a smelter furnace, was affirmed by the General Manager, District Industries Centre (GM, DIC). Even then cancellation of the entire concession granted was attempted after the period of concession, which was challenged before this Court. A re-consideration was ordered which resulted again in cancellation. The subsequent order was challenged in the instant writ petition, which was dismissed with a limited remand on quantification. Aggrieved by the decision, the petitioner-Company is in appeal before us. We heard learned Senior Counsel Sri.Joseph Kodianthara appearing for the appellant and learned Senior Counsel Sri.Raju Joseph appearing for the KSEB.

4. Sri Kodianthara argues that Exhibit P1 G.O. dated 06.10.1986 clearly lays down the unequivocal terms of eligibility of an industrial unit for availing the concession of pre-1982 tariff; whether newly established or modernized, expanded or diversified. The eligibility would be certified by KSIDC/KFC/General Manager, DIC, on their responsibility and based on that certification of eligibility, KSEB would supply power at pre-1982 tariff. It is argued that Exhibit P1 is identical to the provisions contained in numerous sales tax exemption notifications granted to newly expanded, modernized industrial units, which has to be certified by the Industries Department or the financier-Corporation; both arms of the Government. It is urged that once eligibility is certified, the Government, Industries Department or the KSEB cannot dispute the certification made by the appropriate authority empowered to so certify the eligibility. In the instant case, KSIDC had issued Exhibit P3 eligibility certificate. The GM, DIC also had conducted a detailed enquiry as well as visited the factory premises and neither the KSIDC nor the GM, DIC have, at any point of time, found Exhibit P3 certificate to be incorrect, and neither of them have sought to withdraw or cancel their certifications.

5. The reliance placed upon Southern Ispat Ltd. v. State of Kerala [(2004) 4 SCC 68] in the impugned judgment is misplaced, argues Sri.Kodianthara. The facts therein are q