IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11394 of 2004 M/S Patliputra Gases Ltd, a company incorporated under the provisions of Companies Act, 1956 having its Registered Office & Factory situated at Abdul Rahmanpur Road, Didarganj, Patna City- 800 009, Town & District-Patna thorugh one of its Directors, Sanjay Kumar Bhartiya, S/o Late Dindayal Bhartiya, Resident of Rambagh, P.O. & P.S.-Chow, Patna City, Towy & District-Patna. ……..Petitioner. Versus 1. The State of Bihar through the Secretary-cum- Commissioner, Department of Industries, New Secretariat, Bihar, Patna. 2. The Bihar State Electricity Board through its Chairman, Vidyut Bhavan, Bailey Road, Patna. 3. The General Manager-cum-Chief Engineer, Patna Electric Supply Undertaking, Patna. 4. The Electrical Superintending Engineer, PESU, East Circle, 2nd Floor, Shivalaya Market, Ashok Rajpath, Patna-800 004. 5. The Electrical Executive Engineer (Technical), PESU, East Circle, 2nd Floor, Shivalaya Market, Ashok Rajpath, Patna- 4. …………….Respondents. ----------- For the Petitioner : Mr. S.D. Sanjay, Advocate For the State : Mr. S.K. Jha, A.C. to G.A.-10 For the BSEB : Mr. Vinay Kirti Singh. Advocate and Mr. Akhileshwar Singh, Adv. ------------ 5/- 23.6.2011 The petitioner has prayed for following reliefs in the present writ petition:- (i) For a declaration that the Industrial Unit of the petitioner will be entitled for the incentive promised by the State Government including the Minimum Guarantee Charges for electricity under the Industrial Policy, 1995 inspite of the fact that the petitioner could commence its Commercial Production after 30.08.2000 in view of the same being a 2 Pipeline Industry. (ii) For a declaration that the petitioner is entitled to for the benefit of the incentives under the Industrial Policy, 1995 in view of the extension of the Industrial Policy, 1995 by the State Government in the Meeting of the Cabinet. (iii) For a declaration that the petitioner is entitled to for the benefit of exemption from payment of Monthly Minimum Guarantee Charges on electricity consumption, and as such, will not be liable to pay the same on its electricity Bills. (iv) For quashing of the order dated 28.6.2003 passed by the respondent No. 4, Electrical Superintending Engineer by which the claim of the petitioner under the Industrial Policy, 1995 and extended by the State on 10.12.2001 regarding exemption from payment of Monthly Minimum Guarantee Charges has been rejected on the ground that the petitioner commenced its commercial production after 31.08.2000 as being wholly illegal and arbitrary, and for any other relief(s) for which the petitioner may legally be found entitled to in the facts and circumstances of 3 the present case. The petitioner is a company incorporated under the Companies Act, 1956. The State Government in order to promote industrialization in the Bihar announced Industrial Policy, 1995 and promised several incentives for the entrepreneurs in the said policy. The effective date of commencement of Industrial Policy, 1995 was 1.9.1995 and it was stated that the policy remain in force for a period of five years. The petitioner states and submits that in view of incentives promised under the Industrial Policy, 1995, the petitioner decided to set up an Industrial unit for manufacture of various gases including liquid oxygen, liquid Nitrogen, etc., at Patna and got it provisionally registered with the District Industries Centre, Patna, on 29.1.2000. The further case of the petitioner is that due to unavoidable reasons, it could not commence its commercial production on or before 31.8.2000, which would be evident from permanent registration certificate granted to the petitioner on 1.10.2001, as contained in Annexure-4 to the writ petition. The petitioner, thereafter, applied for electrical connection for contract demand of 200 KVA under HTS category connection, and, accordingly, entered into an agreement with the Bihar State Electricity Board for 4 supply of electrical energy. The further case of the petitioner is that when he received bill dated 8.6.2002, he came to know that he is being charged A.M.G. for the year 2001-2002, and, thereafter, he made a representation to the Electrical Superintending Engineer, PESU (East Circle), Patna, on 26.6.2002, making a claim that it is a new industrial unit under 1995 policy and is not liable to pay A.M.G. Bill, which has been wrongfully issued. The petitioner made a similar representation on 18.6.2003. However, the order contained in Annexure- 10 to the writ petition dated 28.6.2003 was passed by the Electrical Superintending Engineer, PESU (East Circle), Patna, holding that it was not entitled for remission of A.M.G. Bill under Industrial Policy as the connection was energized after 31.8.2000. The petitioner being aggrieved by the said order has approached this Court in the present writ petition. The further case of the petitioner is that the Industries Department vide letter No. 35/10C, dated 11.1.2002, reiterated the fact that the Industrial Policy Resolution, 1995 has been extended till announcement of new industrial policy, except the benefits mentioned in Clauses 16, 20 & 22 of the original Industrial Policy Resolution, 1995 and, for such extension, no separate 5 order/notification has to be issued by the concerned department and the earlier notifications issued, were held to be sufficient for extending such benefit. The aforesaid notification was issued after the same was duly approved by the Cabinet. The contention advanced on behalf of the petitioner is that in view of the decision of State Cabinet for extension of the benefit of Industrial Policy Resolution, 1995 as also the promise made by the State Government, the respondents could not have denied the benefit of Industrial Policy in view of Doctrine of Promissory estoppel, as petitioner took steps for setting up of its industry much prior to August 2000, and, therefore, the respondents could not have denied the benefit of incentives under the Industrial Policy, 1995 to the petitioner unit. At this stage, I have privilege to peruse the order dated 4.9.2008 passed in CWJC No. 2477 of 2007 (Surjit Singh Vs. The State of Bihar & Ors.) by a Bench of this Court, upon which learned counsel for the petitioner relies and a copy of which has been given to the Court, which is kept on record. It is pertinent to mention here that learned counsel for the respondent-Board and State concedes that the order passed in C.W.J.C. No. 2477 of 2007 on 4.7.2008 still holds good and has not been 6 modified, altered or reversed in appeal. I would like to quote concluding paragraph from the aforesaid judgment in which finding of the Court has been recorded, which would be relevant to decide the dispute of the present case which is as follows:- “In my view, prima facie, Board by its resolution had agreed to implement the Industrial Policy, 1995 and once the policy was extended waiting a new policy by the State automatically the benefits would be applicable for an extended period. It is pointed at the Bar that even the subsequent Industrial Policy i.e. 2003-06, electrical incentives were maintained and is being honored by the Electricity Board. I see no reason why they would not be available in the interregnum period. The intention of the State was not to discontinue, but, to continue the policy of incentive. Incentive as has been held by the Supreme Court is a beneficial legislation for industrialization and must be constructed in favour of grant of incentive restrict the same. Thus, in my view, from the facts, it would be seen that the petitioner had completed all formalities and taken all steps to start production within the original period of Industrial Policy, 1995. But, because, he was unable to get the raw material allocation by the State within time, he could not go into the commercial production. He, however, went into commercial production. But, by this Industrial Policy itself had been extended by the State and thus, there is no reason why the petitioner should be deprived of the incentives. The matter being pending before the Financial Controller of the Electricity Board. I, therefore, deem it proper to direct him to consider the matter and decide the same in view of directions and observations within a period of one month from the date of production of copy of this order and communicate the order to the petitioner with order to grant relief, if any in accordance with law.” 7 In view of the aforesaid finding and order passed by a Bench of this Hon’ble Court and also in view of the submissions advanced on behalf of the parties, I am of the view that the impugned order dated 28.6.2003 passed by the Electrical Superintending Engineer, PESU (East Circle), cannot be sustained and thus the same is hereby quashed. The petitioner is directed to file a representation along with a copy of order passed in this case as well as a copy of the order dated 4.9.2008 passed in CWJC No. 2477 of 2007 before respondent No. 3, General Manager-cum-Chief Engineer, PESU, Patna, who is directed to consider the matter and decide the same in view of the directions and observations made in the present case as also in CWJC No. 2477 of 2007 and, if, such a representation is filed, respondent No. 3 is directed to consider the matter and decide the same in view of the directions and observations made hereinabove, within a period of two months from the date of filing of such representation and communicate the order to the petitioner with order to grant relief, if any, in accordance with law. It is also pointed out, at this stage, by the learned counsel for the petitioner that since there was a threat of disconnection, he was compelled to make a 8 deposit of 50% of the amount charged under A.M.G. He submits that in case the authority decides that the petitioner is not liable to make any payment of A.M.G. for the period concerned, then, in that case, the amount so deposited may either be adjusted in his future energy bills or be refunded. Considering the nature of the case, I think it proper that the authority, who will decide the matter, will also take into consideration this aspect of the matter while passing the order. Sanjeet/- AFR (Ashwani Kumar Singh, J.)