IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON SATURDAY, THE 20TH AUGUST 2011 / 29TH SRAVANA 1933 WP(C).No. 26589 of 2003(M) -------------------------- PETITIONER: --------------- HIGHLAND PRODUCE CO. LTD., P.B. NO. 4260, PANAMPILLY NAGAR P.O., COCHIN - REPRESENTED BY ITS GENERAL MANAGER BY ADV. MR. PKM.HASSAN MR. J.JULIAN XAVIER MR. FIROZ K.ROBIN MR. RAJESH THOMAS MR. P.PAULOCHAN ANTONY RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, INDUSTRIES DEPARTMENT, GOVT. F KERALA, THIRUVANANTHAPURAM. 2. DIRECTOR OF INDUSTRIES AND COMMERCE, THIRUVANANTHAPURAM 3. DISTRICT INDUSTRIES CENTRE, KOZHENCHERY P.O., PATHANAMTHITTA. 4. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM 5. SPECIAL OFFICER (REVENUE) KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM R1 TO R3 BY SENIOR GOVERNMENT PLEADER MR. M. R. SABU R4 & R5 ADV. MR. P.SANTHALINGAM, SC, KSEB MR. C.K.KARUNAKARAN, SC FOR KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO. 26589 OF 2003 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE G.O. (MS) 4/92.PD DATED 06.02.1992 EXT. P2 : TRUE COPY OF THE B.O. DATED 27.03.1992 EXT. P3 : TRUE COPY OF THE FORWARDING LETTER DATED 07.03.2000 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT. P4 : TRUE COPY OF THE LETTER DATED 03.10.2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT. P5 : TRUE COPY OF THE PETITION DATED 23.01.2002 FILED BY THE PETITIONR BEFORE THE 2ND RESPONDENT. EXT. P6 : TRUE COPY OF THE LETTER DATED 14.08.2002 ISSUED BY THE 2ND ESPONDENT. EXT. P7 : TRUE COPY OF THE GOVERNMENT LETTER DATED 23.12.2000 EXT. P8 : TRUE COPY OF THE B.O. NO. 2030/97 (PLG. COM 2166/96) DATED 17.09.1997 EXT. P9 : TRUE COPY OF THE JUDGMENT IN O.P. NO. 29294 OF 1999 AND CONNECTED CASES. FIRST RESPONDENT'S EXHIBITS : EXT. R1 (a) : TRUE COPY OF APPLICATION DATED 07.03.2000 OF M/S HIGHLAND PRODUCE CO. LTD. EXT. R1 (b) : TRUE COPY OF CERTIFICATE DAED 06.06.2000 ISSUED BY ASSISTANT ENGINEER, ELECTRICAL SECTION, KALANJOOR. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No . 26589 of 2011 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 20th August , 2011 JUDGMENT Whether the petitioner is entitled to have the benefit of Ext. P1 G.O. issued by the first respondent with regard to the granting of subsidy for the new industrial unit set up between 01.01.1992 to 31.12.1996 is the issue involved in this Writ Petition. 2. The case of the petitioner is that, the petitioner is an SSI unit, engaged in manufacturing of rubber woods and allied products, which was set up during the period in question and the commercial production was started on 01.02.1993. As a matter of industrial policy formulated by the State Government Ext. P1 G. O. was issued on 06.02.1992, whereby the certain benefits were conferred to have the subsidy with regard to the consumption of electricity charges to such industrial units, if commercial production is started during the period as mentioned above, which in fact was mooted for promoting the industrial units and bring forth new and new industries to be set up. 3. The petitioner contends that the petitioner had satisfied all the requirements flowing from Ext. P1 and the said G.O. having been W.P. (C) No. 26589 of 2003 : 2 : adopted by the Electricity Board as per Ext. P2 Board order dated 27.03.1992 and the petitioner is entitled to have the benefit thereunder. In the said circumstances, the petitioner preferred Ext. P3 application dated 07.03.2000 before the third respondent, who is to certify the credentials of the petitioner for extending the subsidy. However, Ext. P3 application was rejected by the third respondent as per Ext. P4 dated 03.10.2010, stating that, there was already a cut-off date, for submitting the application, fixed by the Government, which is till 31.05.00 and that since the application submitted by the petitioner was received only on 16.06.2000, the same could not be considered favourably. 4. Met with the situation, the petitioner preferred Ext. P5 representation before the second respondent for immediate interference. This however did not turned be fruitful. The second respondent issued Ext. P6 communication dated 14.08.2002 rejecting the claim of the petitioner, reiterating the contents of Ext. P4, referring to the cut off date as 31.05.2000 fixed by the Government vide Ext. P7 letter No. 38325/J3/99/ID dated 23.12.2000 which in fact was an intimation given by the Principal Secretary to the Government to the Secretary of Kerala State Electricity Board as to the decision taken by W.P. (C) No. 26589 of 2003 : 3 : the Government to allow the subsidy to eligible industrial units which have made application up to 31.05.2002. The correctness and sustainability of the course pursued by the respondents and also the validity of Ext. P7 are under challenge in this Writ Petition. 5. The respondents 1 to 3 have filed counter affidavit pointing out that the contention of the petitioner that he has submitted necessary application in March 2000 is not at all correct and in fact, Ext. P3 application of the petitioner was received only 16.06.2000 and a copy of the application is produced Ext. R1 (a). It is also stated that, the petitioner had enclosed the documents issued by the Assistant Engineer, Electrical Section, Kalanjoor dated 06.06.2000 and a copy of which has been produced as Ext. R1 (b). By virtue of the enclosure of the said document along with the application, it can never be accepted that the application containing the enclosure / document issued in the month of June 2000, has been presented in March, 2000. In the said circumstances, the application preferred by the petitioner is being much beyond the cut off date 31.05.200 and hence no relief can be extended to the petitioner is the version of the Government / Departmental authorities. No counter affidavit has been filed from the part of the Electricity Board. W.P. (C) No. 26589 of 2003 : 4 : 6. The learned counsel for the petitioner submits that similar issue had earlier come up for consideration before this Court in O.P. No. 16761 of 1998 and connected cases, especially with regard to the Board order dated 17.09.1997 (a copy of which has been produced and marked as Ext. P8), whereby the Board had stipulated a cut off date fixing 15.10.1997, beyond which application for subsidy is stated as not liable to be entertained. This Court considered the matter and Ext. P8 (which is impugned in the said original petitions) was set aside as per Ext. P9 judgment specifically observing that, no such cut off date shall be prescribed by the Board superseding the Government Order. The rights and liberties to issue / prescribe fresh cut off date was reserved subject to the satisfaction of the requirements as specified thereunder. However, with regard to the crucial issue involved herein, the observations made by this Court in paragraph 8 of Ext. P9 judgment is relevant. The relevant portion of paragraph 8 is reads as follows : “After hearing both the sides, I am of the view that the petitioners are entitled to succeed. The Government Order gave the benefits to the petitioner, who started production between 01.01.1992 and 31.12.1996. The only question to be looked into is whether the petitioners have started production between those two dated. If the petitioners have started production between those two dates, then they are entitled to the benefits of the order” W.P. (C) No. 26589 of 2003 : 5 : 7. There is no case for the respondents that Ext. P9 judgment has been set aside or modified in any manner and this Court reasonably presumed that it has become final. This being the position, the eligibility of the petitioner has to be considered with reference to the question, whether the commercial production of the Unit was started between 01.01.1992 to 31.12.1996. Going by the contents of Ext. P4, there is no case for the concerned respondent i.e 3rd respondent that the factual position is something else and the only reference for denying the benefit is as to the cut off date i.e. 31.05.2000. 8. Coming to the correctness and sustainability of the cut off date stipulated as 31.05,2000 as contained in Ext. P7 letter, it is seen that, it is only a communication issued by the Government, more particularly, the Principal Secretary to the Secretary of the Electricity Board and that there is no such stipulation in Ext. P1 whether such a rider could have been placed by the Secretary modifying the Government Order issued by the Government is the question to be considered. It is settled law that by virtue the power to have delegated the legislation, the G.O.s are having the power of Rule, in the absence of the Rule if any, on the point. The G.Os. issue by the Government would not have been W.P. (C) No. 26589 of 2003 : 6 : modified or altered by way of executive instructions, as borne by Ext. P7. There is no case for the respondent that Ext. P7 letter has been placed any hurdle on the petitioner for claiming the benefit or subsidy as ordered by the Government vide Ext. P1 and accepted by Board vide Ext. P2. In the said circumstances, the impugned proceedings liable to be set aside and the third respondent is directed to consider Ext. P3 application preferred by the petitioner, stated as received on 16.06.2000, on the basis of the relevant materials and extent the appropriate benefit to the petitioner on ascertaining the factual position as to whether the commercial production in the petitioner's was started between the crucial period. The proceedings as above shall be finalized as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. It is for the petitioner to produce copy of the judgment before the third respondent for further steps. The Writ Petition is allowed to the said extent. No cost. P. R. RAMACHANDRA MENON, JUDGE kmd