IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1613 of 2000 1. THE BIHAR STATE ELECTRICITY BOARD, A BODY CONSTITUTED UNDER THE ELECTRICITY (SUPPLY) ACT,1948 HAVING ITS OFFICE, BAILEY ROAD, PATNA THROUGH ITS CHAIRMAN 2. THE SECRETARY, THE BIHAR STATE ELECTRICITY BOARD, VIDHYUT BHAWAN, BAILEY ROAD, PATNA. 3. THE FINANCIAL CONTROLLER (REV.), BIHAR STATE ELECTRICITY BOARD, PATNA. 4. THE CHIEF ENGINEER, (COMMERCIAL & TA), BIHAR STATE ELECTRICITY BOARD, VIDHYUT BHAWAN, BAILEY ROAD, PATNA …RESPONDENTS- APPELANTS Versus 1. M/S BHOLA RAM STEEL PVT.LTD. A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS PLACE OF BUSINESS AT NASRIGANJ, DANAPUR, PATNA THROUGH ITS DIRECTOR- RAMESH PRASAD GOENKA. …WRIT PETITIONER -RESPONDENT 2. THE STATE OF BIHAR, THROUGH SECRETARY, DEPARTMENT OF ENERGY, GOVT. OF BIHAR, 3RD SECRETARIAT, HARDING ROAD PATNA. 3. THE CHIEF ENGINEER, PESU, MANGELES ROAD, PATNA 4. THE ELECTRICAL SUPERINTENDING ENGINEER, PESU (W) MANGLES ROAD, PATNA. 5. THE ELECTRICAL EXECUTIVE ENGINEER (TECH), PESU(WEST), MANGLES ROAD, PATNA. …RESPONDNTS- RESPONDENTS (PROFORMA RESPONDENTS) ---- For the Appellants :Mr.Vinay Kirti Singh, Advocate For Respondent No.1 :Mr.S.D.Sanjay, Advocate & :Mrs. Shabina Rubab, Advocate For Respondent No.2 :Mr. Sanjay Prakash Verma, AC to GA 5 ------- 13. 13.11.2009 Heard Mr. Vinay Kirti Singh for the appellants, Mr. S.D. Sanjay for respondent no.1, and Mr. Sanjay Prakash Verma, learned Assistant Counsel to Government Advocate No.5. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by one of the respondents of CWJC No.9231 of 2000 (M/s Bhola Ram Steel Pvt. Ltd. Vs. State of Bihar & Ors.), and is aggrieved by - 2 - the order dated 24.10.2000, whereby the writ petition was allowed and it has been directed that the industrial subsidy in question is available to the writ petitioner. 2. A brief statement of facts essential for disposal of the appeal may be indicated. We shall go by the description of the parties occurring in the writ petition. The Government of Bihar in the Department of Industry has framed the Industrial Policy of 1995(hereinafter to be referred to as the „Policy‟), and the writ petitioner seeks enforcement of the same. Paragraph 9.6 of the same provides that the manufacturing units which qualify under the Policy shall be exempt from payment of minimum guarantee charges having connected load upto 500 KVA, for a period of five years from the date of commencement of production between 1.4.1993 to 31.1.2000. The writ petitioner set up its industrial unit for manufacture of iron and steel structure and such other items with the connected load of 500 KVA. It received bills after bills wherein it did not get the benefit of the aforesaid exemption from payment of minimum guarantee charges although according to the writ petitioner, it qualified for the same. The petitioner on enquiry learnt that, according to the Board, it exceeded the load factor which rendered it ineligible from getting the benefit of exemption leading to the writ petition. On a detailed consideration of the facts and circumstances of the case and the law governing the issue, the - 3 - learned Singe Judge has come to the conclusion that the petitioner shall be entitled to the benefit of exemption from payment of minimum guarantee charges as per the Industrial Policy even if it exceeds the connected load. 3. While assailing the validity of the impugned order, learned counsel for the State of Bihar as well the Board have submitted in one voice that once the consumer exceeds the connected load capacity as per the agreement, it is not entitled to the benefit of exemption. Learned counsel for the petitioner, on the other hand, submits that the petitioner shall be entitled to the benefit of exemption of the contract demand without increasing the connected load. He relies on the judgment of the Supreme Court reported in (1999) 2 SCC 607 (Para 6) (Commissioner of Sales Tax Vs. Industrial Coal Enterprises). 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. We entirely agree with the analysis of facts and applicability of law of the learned Single Judge. Paragraphs 1 to 3 set out the aims and objects of the Policy which are reproduced hereinbelow for the facility of quick reference:- 1. “Bihar has immense potential to emerge as the most industrial State in India. It possesses the richest mineral reserves in the country. It also is endowed with resources such as surface and ground water, fertile land, disciplined and skilled man power etc., so very essential for the establishment of industries. 2. The changes taking place in the economic - 4 - policies of the country, the vast internal market, being the bordering State of Nepal, abundance of natural resources and a stable Government have created a natural attraction both for the Indian and the foreign investors for investment in the State. The State Government firmly believes in maximizing capital investment in the State for its accelerated economic development as also for general of employment and incomes. The State Government is committed to create an environment conducive to growth of industries in the State. While not given to encouraging rank consumerism and production of luxury goods for conspicuous consumption the Government is determined to encourage investment in the industries based on State‟s agro-climatic resources as also in development of infrastructure. 3. Currently the Industrial Incentive Policy 1993 is in vogue in the State. However, in the context of changes taking place in the economic scenario at the international as also the national level in the country and the competition amongst various countries and the States in India for investments it has been considered essential to formulate anew Industrial Policy for attracting private investment including foreign investment, in identified Thrust Areas as also for creation of essential infrastructure including for power generation.” It is evident that the State Government announced the Policy for maximizing the capital investment in the State for its accelerated economic development as also for generation of employment and income. Paragraph 9.6 of the Policy is as follows: “Power Incentive- exemption from payment of minimum guarantee charge for new industrial units having connected load upto 500 KVA. exemption from Electricity Duty for 5 years on captive power generation upto 25 MW for own consumption to new industrial units. - 5 - loads upto 99 H.P. to be made available on L.T. for new connection to industrial units. special arrangements for expeditious clearance for rebate for non supply of power to industrial undertakings.” 5. Keeping in view the aims and objects of the Policy, we are of the view that greater consumption of power means that the entrepreneur has stepped up its efforts to increase its production which will result in economic development, generation of employment and income. The stand of the learned counsel for the authorities is counter- productive and would defeat the very aims and objects of the Policy. We are of the view that the higher the consumption, the better it is for the State of Bihar. Therefore, the writ petitioner is entitled to the benefit of exemption from payment of minimum guarantee charges for connected load upto to 500 KVA for the period of entitlement. If the writ petitioner had exceeded the same, it will be required to pay for the excess connected load or excess consumption of power, and shall not be deprived of the benefit of the power incentive(s). We hasten to add that the learned Single Judge has found that there is no evidence on record that the writ petitioner had exceeded the consumption beyond the connected load. 6. Learned counsel for the writ petitioner has rightly relied upon the judgment of the Supreme Court in the case of Commissioner of Sales Tax Vs. Industrial Coal Enterprises (supra). The relevant portion of paragraph 6 of the judgment is - 6 - reproduced hereinbelow:- “Neither the section nor the notification contains any condition that if the capital investment of the unit exceeds Rs 3 lakhs after the grant of exemption, such exemption would cease to operate unless and until the conditions prescribed for unit having capital investment exceeding Rs.3 lakhs are fulfilled. In the absence of such express provision there is no warrant for the stand taken by the appellant that after 23.- 7.1986 the unit was not entitled to the benefit of exemption as its capital investment exceeded Rs. 3 lakhs from such date.” 7. There is no merit in this appeal. We accordingly dismiss it for the reasons indicated hereinabove, in addition to the reasons assigned by the learned Single Judge. In the facts and circumstances of the case, there shall be no order as to costs. hr ( S. K. Katriar ) ( Kishore K. Mandal )