HON’BLE Dr. JUSTICE G. YETHIRAJULU W.P.No.8500 of 2001 Dated this the 1st day of February, 2008 Between: M/s. Rohit Industries, Mallapur, Near Nacharam, RR Dist. Through its Proprietrix, Sudha Mittal .. Petitioner AND Transmission Corporation of A.P. Limited at Vidyaut Soudha, Somajiguda, Hyderabad, rep. Through its M.D. and 3 others .. Respondents HON’BLE Dr. JUSTICE G. YETHIRAJULU W.P.No.8500 of 2001 ORDER: This Writ Petition has been filed by the petitioner seeking a Writ of Certiorari to declare that the proceedings of the second respondent- Superintending Engineer dated 03.04.2001 holding that the petitioner is ineligible for claiming rebate as per B.P.Ms.No.51, dated 24.05.1993 and B.P.Ms.No.1, dated 03.04.1997, is liable to be quashed. 2) The petitioner is a small-scale industry engaged in manufacture of all types of plastic pipes and granules. For location of the industry, the petitioner searched for suitable premises and ultimately he got the land by participating in a public auction conducted by the Andhra Pradesh State Financial Corporation (APSFC), Hyderabad, in which the a chemical industry was inexistence. The petitioner purchased the land and the building of the said industry. When the said industry committed default in payment of the instalments, it was brought to sell and the petitioner became the highest bidder in the public auction conducted by the APSFC. Subsequently, he entered into a contract with the Electricity Board for supply of power for a contracted load of 75 HP and the agreement was entered on 04.01.1996. 3) The petitioner contended that the District Industries Centre has examined the issue with regard to the grant of incentives and issued eligibility certificate to the petitioner certifying that the petitioner is entitled for power rebate to the extent of 25% in the power consumption charges. The Government of Andhra Pradesh issued G.O.Ms.No.108, dated 20.05.1996 with an object to introduce the liberalized incentives for setting up of new industries in the State of Andhra Pradesh. One of the incentives is granting 25% rebate in the power consumption charges for the first three years from the date of starting of commercial production. The second respondent through the letter, dated 09.04.1997 granted rebate to the petitioner industry for the period from 10.02.1997 to 10.02.2000 i.e., for three years. Subsequently, the Electricity Board through the proceedings issued in B.P.M.S.No.51, dated 24.05.1993 and B.P.Ms.No.1 dated 03.04.1997 has withdrawn the rebate. Though there is no illegality in granting the rebate to the petitioner industry, the second respondent issued the impugned proceedings dated 03.04.2001 without conducting any enquiry and without issuing any notice to the petitioner stating that the rebate allowed to the petitioner industry was by oversight and the petitioner industry comes in the purview of ‘Name Transfer and Expansion Programme’ within the terms of B.P.Ms.No.51, dated 25.04.1993 and B.P.Ms.No.1, dated 03.04.1997. When the petitioner failed to pay the demanded amount of Rs.3,48,345/-, the respondents are bent upon to disconnect the power supply at any time after one month. Therefore, the petitioner approached this Court seeking the relief as mentioned in the prayer. 4) It is an undisputed fact that B.P.Ms.No.1, dated 03.04.1997 was in force as on the date of establishment of the petitioner industry. The State Government at the request of APSEB under G.O.Ms.No.654 (Industries and Commerce) dated 13.03.1976 identified the list of industries, which are not eligible for claiming 25% rebate in power tariffs, though initially 25% power rebate was extended to the eligible industries going into production on or after 01.01.1976. The District Industrial Centre has issued a certificate to the petitioner on 17.03.1997 to the effect that the petitioner industry is eligible for 25% rebate in the power consumption charges. In pursuance of that, the power rebate was extended to the petitioner by the second respondent, through the letter, dated 09.04.1997. Now the impugned notice was served on the petitioner to the effect that the power rebate was given to the petitioner industry by inadvertence and over sight. Since the petitioner industry comes within the purview of ‘Name Transfer and Expanded Industry’, the petitioner is not entitled for claiming rebate under B.P.Ms.No.51, dated 24.05.1993 and B.P.Ms.No.1, dated 03.04.1997. 5) The learned counsel for the petitioner submitted that when there is a government order extending the rebate to the newly established industries in order to encourage the new entrepreneurs by granting money concession including the rebate in the power consumption to the extent of 25%, the Electricity Board cannot issue a different order denying the benefit to the entrepreneurs. 6) Sri O. Manohar Reddy, learned Standing Counsel for AP TRANSCO appearing on behalf of the respondents submitted that B.P.Ms.No.1 clearly envisages that the rebate shall be extended to the new established units and decided to permit the restoration of power supply to the new owner of a unit purchased through auction by APSFC in a premises in which there are arrears of C.C. charges and other charges due from the previous owner subject to the following conditions. (b) The new owner is not entitled for 25% rebate on power charges. By relying on the above clause, the learned Standing Counsel submits that as there was a chemical industry in the premises in which the petitioner established the industry, which was purchased from APSFC, it cannot be treated as a new industry. Therefore, the petitioner is not entitled for the rebate. 7) The petitioner mentioned that a chemical industry was established by another person for manufacture of detergent soaps by taking loan from the APSFC. Later, he committed default in payment of the instalments. Therefore, the APSFC brought the industry to sale and the petitioner participated in the auction and he became the highest bidder and purchased the land and the building of the erstwhile industry and set up an industry for manufacturing plastic pipes and granules, which is a new product by establishing the required machinery etc. 8) The learned counsel for the petitioner further submitted that simply because the new industry was established in terms of the old industry for manufacture of a different product, it cannot be said that it is also an old industry, therefore, the petitioner is entitled for the rebate. 9) In support of his contention, the learned counsel for the petitioner relied on a decision of a learned single Judge of this Court in W.P.No.4540 of 2003, dated 22.08.2007 wherein it is held as follows: “I have carefully studied both the documents. In my opinion, the so- called policy contained in letter dated 16.07.1994 cannot be made basis for denying the benefit of rebate in power tariff to the industries covered by G.O.Ms.No.108, dated 20.05.1996 on the ground that the eligibility certificate was issued after two years of releasing the connection. It is to be noted that letter dated 16.07.2004 merely communicates to the Government the Board’s disinclination to grant 25% rebate to those industries, which could not obtain eligibility certificate within two years. The Court can reasonably presume that this objection of the Board must have been considered by the State Government while issuing policy direction in terms of Section 78A of the Act. If the Board had any reservation or objection to the policy direction issued by the Government, then it could have raised a dispute in terms of sub-section (2) of Section 78A. However, the fact of the matter is that no such dispute was raised by the Board. Therefore, the Board and officers subordinate to it cannot act in violation of the policy contained in G.O.Ms.No.108, dated 26.05.1996, which is binding on them. As a sequel to this, it must be held that letter dated 23.01.2003 sent by the Superintending Engineer, Operation Circle, North, Hyderabad for denying the benefit of 25% rebate in power tariff to the petitioner is legally unsustainable.” 10) In the light of the present circumstances, when the petitioner industry established the industry for manufacture of a total new product, he cannot be denied the benefit of rebate extended by the Government. The impugned notice issued by the second respondent not to extend the benefit of 25% in power rebate to the petitioner cannot be sustained as it is illegal and against G.O.Ms.No.108, dated 20.05.1996 issued by the Government. Since the petitioner industry has also availed the benefit, the respondents are directed not to recover any amount towards 25% rebate from the petitioner industry, as it is entitled for the benefit under the said G.O. as well as B.P.Ms. orders. 11) Accordingly, the Writ Petition is allowed. No order as to costs. __________________ Dr.G. YETHIRAJULU, J Date: 01.02.2008 Isn