IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9517 of 2002 M/S GINI ENGINEERING CORPORATION, appearing through its proprietor, Md. Ghyasuddin, son of late Md. Zahir, resident of Mangaldeep Apartment, Gosaintola, Police Station Patliputra colony, town and District- Patna. Versus 1. BIHAR STATE ELECTRICITY BOARD, appearing through its Chairman, Bailey Road, Police Station Kotwali, Town and District- Patna. 2. The Financial Controller ( Revenue), Bihar State Electricity Board, Bailey Road, Police Station Kotwali, Town and District- Patna. 3. The Electrical Executive Engineer (S), Patliputra Electric Supply Division, Boaring Road, Police Station Patliputra Colony, Town and District- Patna. ----------- For the petitioner: Mr. S.S. Rekhi, Advocate For Electricity Board: Mr. Vinay Kirti Singh,Advocate --- 9. 5.4.2010 Heard learned counsel for the petitioner and learned counsel for the Bihar State Electricity Board. The petitioner seeks quashing of the order dated 18.3.2002 passed by respondent No.2, the Financial Controller ( Revenue ), Bihar State Electricity Board, by which he has rejected the petitioner’s application for grant of minimum guarantee/minimum consumption charge or minimum base charge under the tariff of the respondent- Electricity Board. The case of the petitioner is that he started a Small Scale Industry in the Industrial Area, Kurji after taking the premises on lease with effect from 1.7.1993. Pursuant to the same, purchase of machinery was also made from various - 2 - suppliers in the months of May and June, 1993, for which the relevant bills have been enclosed. He claims that the commercial production commenced from 1.7.1993. With respect to the same, a certificate was also issued by the General Manager, District Industries Centre, Patna on 27.11.1993 ( Annexure-4) in which the date of commencement of production was mentioned as 1.7.1993. Earlier also, the petitioner had approached the respondent Electricity Board for grant of benefit under the Industrial Policy, 1993, which commenced from 1.4.1993, but the same appears to have been denied upon which he approached this Court by filing C.W.J.C. No.11371/2001, which was disposed of by order dated 12.9.2001 with a direction to the petitioner to file an application before the Financial Controller ( Revenue ), Bihar who was directed to consider the matter and if the petitioner was found covered by the judgment of the Apex Court in the case of K.D. Inudstries v. Bihar State Electricity Board:2001 (3) PLJR 28 (S.C.) then the benefit of the scheme will be given to it unless there is any legal impediment. Pursuant to the same, the petitioner filed an application which - 3 - was rejected by the impugned order dated 18.3.2002 passed by the Financial Controller ( Revenue ) of the Board. The only reason given in the said impugned order is that the original connection was standing in the name of A.B.C. Engineering on 31.1.2007 for a load of 44 H.P., which has subsequently been mutated in the name of M/s. Gini Engineering Corporation with the same account No.41271 after deposit of Rs.6,600/- as security money on 8.7.1993. It was thus held in the impugned order that on the basis of Board’s resolution No.6917 dated 23.9.1996 regarding exemption from payment of minimum guarantee/ minimum consumption charge or minimum base charge under the Industrial Policy only such unit, which comes into production with effect from 1.4.1993 to 31.8.2000 would be granted industrial policy benefit for a period of five years from the date of electrical connection and since in the present case the connection was given on 31.1.1979, the same does not fall within the prescribed period. Reference is further made to the provisions under the Industrial Policy that on mere change of ownership or name, the unit will not be considered as a new unit and will not be - 4 - entitled to the benefit of incentive provided under the Industrial Policy. Learned counsel for the petitioner submits that the impugned order suffers from complete non- application of mind. He refers to the written submissions filed on its behalf before the respondent No.2, Financial Controller ( Revenue ) of the Board in which the entire details were given including the certificate of registration by the General Manager, District Industries Centre, including therein the date of production as also the registration certificate issued under the E.S.I. from 1.7.1993. Further evidences were given regarding the first declaration submitted under the Central Excise Salt Act, 1994 relating to the production made during the period from September, 1993 as also photo copies of the eight bills of purchase of machineries for the new Industry in the months of May and June, 1993 and the photo copy of the first rent receipt for the premises taken on lease by the petitioner. All the documents were enclosed with the said written submissions. It is further submitted that he had approached the PESU authorities for giving the - 5 - electrical connection which was accepted and the connection was given to him. He further contends that the agreement regarding the electrical supply was not handed over to the petitioner by the Board, for which he should not be held to be liable and his rights and liabilities should be confirmed from the date of mutation and the petitioner would be entitled for exemption from the minimum consumption charge for a period of five years therefrom. It is urged by learned counsel for the petitioner that not a word is to be found in the impugned order dated 18.3.2002 with regard to the aforesaid documents, materials and submissions made on behalf of the petitioner and without any material to the contrary being produced by the authorities of the Electricity Board, the application has been rejected. It is the stand of learned counsel that the authorities of the Board are the custodian of the requisition Form and application made by the consumers and unfortunately the petitioner itself has not retained the same, but the authorities of the Board are not producing the same with deliberate intention to defeat the claim of the petitioner. - 6 - Learned counsel also refers to the L.T. Agreement Form in which the purpose of supply taken by the consumer has to be mentioned. In this regard also he submits that if the authorities of the Board had fairly produced the L.T. Agreement Form of the earlier consumer and the petitioner, then it would have been clear that a new Industry has been set up by the petitioner on the premises on which another industry had been started earlier by a previous occupant. Admittedly, the premises did not belong to the petitioner rather he has taken the same on lease from the owner of the premises. It is also contended by learned counsel that under the Industrial Policy, 1993, it is clearly stated that the benefits are available to all units, which have commenced production between 1.4.1993 to 31.3.2000 and with respect to the date of commencement of production, the certificate issued, inter alia, by the General Manager, District Industries Centre would be treated as binding and in case of any dispute with respect to the date of production the decision of the Director, Industries would be final. It is urged that the certificate dated 27.11.1993 issued by - 7 - the General Manager, District Industries Centre, Patna has not been challenged by the respondent Board. If the respondent authorities of the Board had any doubt about the same that could have only been raised before the Director, Industries but the same has not been done. It must, therefore, be presumed that the date of commencement of production as mentioned in the certificate dated 27.11.1993 is final and binding upon them. According to learned counsel, even assuming the worst that the electrical connection existing in the said premises in the name of M/s. ABC Engineering since 31.7.1979 was mutated in the name of the petitioner after he deposited the additional security money of Rs.6,600/- for a load of 50 H.P. ( as compared to the earlier load of 44 H.P.) on 1.7.1993, the same has no relevance in the matter and would not come in the way of grant of benefit under the Industrial Policy. In such circumstances, according to learned counsel, the date of mutation must be treated as the date on which the new connection has been granted and the petitioner would be entitled to the benefit of exemption for a period of five years from the said date. - 8 - Learned counsel for the Bihar State Electricity Board, on the other hand, submits that the Financial Controller (Revenue) has rightly held against the petitioner on finding that it is an old unit that has changed its name and by mere change of name of the company it could not be considered eligible for the benefit of the Industrial Policy. In this regard, learned counsel refers to the Circular bearing memo No.652 dated 11.10.1996 issued by the Electricity Board by which the Board Resolution No.6917 dated 23.9.1996 was notified, in which it was stated that the benefit of the Industrial Policy Resolution of the State Government of 1993 and 1995 would be available to such units, which would come into production between the period from 1.4.1993 to 31.8.2000 or which have undertaken expansion/diversification during the said period and whose load does not exceed 500 KVA in which case they would be entitled to exemption from payment of minimum guarantee charges for a period of five years. Relying on the said Circular, learned counsel submits that the electrical connection in the present case was granted on 31.1.1979 and thus the same was much before the - 9 - date of the Industrial Policy and the five years period would expire much before the commencement of the Industrial Policy and, therefore, the Financial Controller ( Revenue) of the Board has rightly held that the petitioner is not entitled to the benefit under the Industrial Policy. On a consideration of the facts and circumstances of the case and the rival submissions of the parties, this Court find sufficient force in the submission of learned counsel for the petitioner. In several decisions of the Apex Court and this Court it has been held that the provisions of the Industrial Policy have to be liberally construed in favour of the Industries which are entitled to the benefit of the same and it is not open to the authorities to construe the provisions of the Industrial policy so as to defeat the grant of benefit to them. I further find that under the Industrial Policy, 1993 and 1995, which has also been adopted by the Board, which it is obliged to do in terms of the provisions of Section 78 A of the Electricity (Supply) Act, 1948 on account of the statutory directions issued by the State Government under it, any new Industry established - 10 - and it commenced production from 1.4.1993 to 31.8.2000 was entitled to benefits provided therein. One of the benefits was with respect to the exemption from payment of minimum guarantee charges with respect to supply of electricity under the Industrial Policy. The date of commencement of a new Industrial Unit was to be certified among others by the General Manager, District Industries Centre and the date certified by him was to be acceptable to the authorities required to grant the benefits under the said Policy and in case there was any dispute raised by them, the matter would be finally adjudicated by the Director, Industries. There is nothing on the record to show that the authorities of the Board have, at any time, disputed the certificate dated 27.11.1993 issued by the General Manager, District Industries Centre, Patna that the date of commencement of production with respect to the petitioner’s unit was 1.7.1993. Hence, the same not having been challenged it has to be accepted that the petitioner unit was a new unit registered by the General Manager, District Industries Centre which commenced commercial production from 1.7.1993. - 11 - The aforesaid facts are also supported by as many as seven bills produced by the petitioner with regard to purchase of machinery for setting up of the unit, from various suppliers in the months of May and June, 1993 amounting to total Rs.1,40,619/-. There are other contemporary documents like the registration with the Employees State Insurance Corporation, the licence issued and renewed during the period by the Inspector of Factories, as also the declaration of production submitted before the Central Excise authorities. All the said documents go to show that the petitioner was a new unit, which had actually commenced production and the petitioner firm would, therefore, be entitled to the benefit of the Industrial Policy. The aforesaid facts have also to be looked in the context that even on diversification/expansion of existing units the benefits under the Industrial policy are to be given to the unit in question although admittedly this is not a case of expansion/diversification. The only issue in this case is that earlier for the same premises, an electrical connection bearing account No.4127 for a load of 44 H.P. had been given on 31.1.1979 in favour of - 12 - one M/s. ABC Engineering and subsequently, the same was mutated in the name of the petitioner M/s. Gini Engineering Corporation and thus the electrical connection on the basis of the material on record was an old one but mutated in the name of the petitioner firm on 8.7.1993. The question would be whether the same is sufficient to deny the benefit of the Industrial Policy to the petitioner. From a consideration of the Industrial Policy, 1993, I find that at least at two places it has been mentioned that the benefit of Industrial Policy would only be given if the electrical connection is in the name of the owner or partner or the Managing Director of holding company and the same should be approved/mutated in the name of the owner, partner or Managing Director of holding company within three months of starting production. That being the position, mere mutation of name of the petitioner firm, which is a proprietorship concern, for the electrical connection cannot be held against it that it has been made for deriving benefit under the Industrial Policy. Getting the name mutated in case of electrical connection existing in the name of another person or firm appears to be the sole - 13 - reason on the basis of which the Financial Controller decided the matter against the petitioner. In view of the clear provisions contained in the Industrial Policy, according to this Court, that does not appear to be a proper ground for denial of the benefit to the petitioner firm. Even if it has got the electrical connection mutated in its name, the same was in accordance with the requirement of the Industrial Policy and the benefit of exemption from minimum guarantee charges for a period of five years should have been granted to it from the date of mutation, i.e., 8.7.1993. The further observation made in the impugned order that on mere change of ownership or name, the unit would not be entitled to the benefit of the scheme also appears to be misconceived in view of the certificate of the Industries Department and the receipts, etc. regarding purchase of new machines that have been brought on the record by the petitioner. No material has been brought on the record by the authorities of the respondent Board to the contrary to show that the averments made on behalf of the petitioner are not correct. - 14 - In fact, this Court is in agreement with the submission of learned counsel for the petitioner that the order impugned passed by the Financial Controller ( Revenue ) of the Board shows non-application of mind to the various submissions made and materials brought on the record by the petitioner. In the light of the aforesaid discussions, this Court is of the view that the impugned order dated 18.3.2002 passed by the Financial Controller (Revenue) of the Board cannot stand and it is, accordingly, quashed. The authorities of the respondent-Board are directed to grant benefit under the Industrial Policy, 1993 to the petitioner within a period of three months from today. The writ application is, accordingly, allowed in terms of the aforesaid observations and directions. VPS ( Ramesh Kumar Datta, J. )