Case: Hitech Eletrothermics and Hydropower Limited Vs. State of Kerala &amp; Others

same, the Board having not taken any steps to see that the power supply is given to the appellants premises and it is for such non supply of power, the commercial production being delayed, it will be un-equitable to deny the concessional tariff flowing from the policy resolution of the government. Mr. Salve contended that under S.22 of the Indian Electricity Act, 1910, the Board is responsible to supply power on the terms and conditions of the licence and the said Board having allocated the power in favour of the appellant on 7.11.95 and thereafter their being no power connection until 1998, it cannot deny the benefit flowing from the policy resolution of the government which was adopted by the Board in its letter dated 27th of March, 1992. According to Mr. Salve, the Board cannot be permitted to prevent the benefit of an incentive policy by its own failure to provide power, which prevented the appellant from starting commercial production by 31.12.1996. Mr. Salve relying upon the judgment of this court in Pawan Alloys and Casting Pvt. Ltd., . U.P. State Electricity Board and Ors., (1997) 7 SCC 251, contended that when the appellant was persuaded to set up the industry being lured by incentive of getting the concessional power tariff for a period of five years, ought not to be denied that relief on construing the power policy and literally no such concessional tariff could be granted unless commercial production starts before 31.12.96. 4. Mr. Rohtagi, the learned Additional Solicitor General, appearing for the State of Kerala as well as on behalf of the Board, vehemently argued that the language of the policy issued by the Government and adopted by the State Electricity Board was unequivocal and such policy clearly stipulated that only those units which would start commercial production between 1.1.92 and 31.12.96 would be entitled to the concessional tariff indicated in the policy. Since admittedly the appellants manufacturing unit did not start commercial production within the stipulated period, the benefit of the concessional tariff under the policy has rightly been denied and the impugned judgment does not suffer from any infirmity. According to Mr. Rohtagi, even if for certain latches on the part of the Board, the appellant may be entitled to an equitable consideration, but in the matter of incentive granted under the policy decision by the government, no manufacturing unit can claim the benefit, so long as the conditions precedent of the applicability of policy resolution have not been satisfied. Mr. Rohtagi also contended that there might have been some latches on the part of the Board in its failure to provide power connection in time, but the same is not one-sided and even the appellant himself was not in a position to start commercial production within the stipulated date. Mr. Rohtagi also urged that since there has been no finding of the Division Bench of the High Court, as to who was at fault and if so, to what extent on which equities could be worked out, the matter could be remanded back to the High Court for re-adjudication. Mr. Rohtagi, however to the suggestion from the Court finally agreed that the appeal can be disposed of on equitable consideration by this Court by reducing the period for which concessional tariff could be given to the appellant. 5. On perusal of the industrial policy of the government, unequivocally indicting that concessional tariff rate would be given as well as the order of the Electricity Board adopting the same, it can be safely held that such concession could be availed of by the industrial units for a period of five years from the date, commercial production which start such production in between 1.1.92 and 31.12.1996. In this context the stand of the Board as well as the State Government cannot be held to be devoid of any substance when admittedly the commercial production of the appellants unit did not start till 31.12.96. But the question for consideration is when the government has itself come forward alluring industrial units to set up their industries and when under the provisions of the Electricity Act, every consumer has the right to get the supply of power and in the case in hand, when power allocation has been made in favour of the appellant as early as in 1995, and yet the same power could not be supplied for such non supply of power, the commercial production could not start by 31.12.96, would it at all be equitable to deny the relief to the appellant by giving a literal interpretation to the incentive scheme of the government as adopted by the Board? Our answer to this question must be in the negative. There are several documents on record, which were produced before us to indicate that the appellant has been communicating with the Board, seeking power connection at an early date so that it would be able to start commercial production by 31.12.96. In making such communication, the appellant has been bringing it to the notice of the Board but for supply, the appellant has made all other arrangements to set the production, but yet there has been inaction on the part of the Board in providing power to the appellant. Mr. Rohtagi, appearing for the Board no doubt brought to our notice a letter from the appellant to the Board and contended that it could not have been possible for the appellant to start production by 31.12.96 but we are unable to accept this submission nor are we making deeper probe into the matter. Suffice it to say that the appellant has been denied power supply by the Board in appropriate time, which has prevented the appellant from starting the commercial production by 31.12.96. This being the position, and having regard to the gamut of the circumstances, starting from the government policy resolution and culminating in setting up of the factory by the appellant in Kerala and commensurate the production of ferro alloys, though not by 31.12.96,

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. On perusal of the industrial policy of the government, unequivocally indicting that concessional tariff rate would be given as well as the order of the Electricity Board adopting the same, it can be safely held that such concession could be availed of by the industrial units for a period of five years from the date, commercial production which start such production in between 1.1.92 and 31.12.1996. In this context the stand of the Board as well as the State Government cannot be held to be devoid of any substance when admittedly the commercial production of the appellants unit did not start till 31.12.96. But the question for consideration is when the government has itself come forward alluring industrial units to set up their industries and when under the provisions of the Electricity Act, every consumer has the right to get the supply of power and in the case in hand, when power allocation has been made in favour of the appellant as early as in 1995, and yet the same power could not be supplied for such non supply of power, the commercial production could not start by 31.12.96, would it at all be equitable to deny the relief to the appellant by giving a literal interpretation to the incentive scheme of the government as adopted by the Board? Our answer to this question must be in the negative. There are several documents on record, which were produced before us to indicate that the appellant has been communicating with the Board, seeking power connection at an early date so that it would be able to start commercial production by 31.12.96. In making such communication, the appellant has been bringing it to the notice of the Board but for supply, the appellant has made all other arrangements to set the production, but yet there has been inaction on the part of the Board in providing power to the appellant. Mr. Rohtagi, appearing for the Board no doubt brought to our notice a letter from the appellant to the Board and contended that it could not have been possible for the appellant to start production by 31.12.96 but we are unable to accept this submission nor are we making deeper probe into the matter. Suffice it to say that the appellant has been denied power supply by the Board in appropriate time, which has prevented the appellant from starting the commercial production by 31.12.96. This being the position, and having regard to the gamut of the circumstances, starting from the government policy resolution and culminating in setting up of the factory by the appellant in Kerala and commensurate the production of ferro alloys, though not by 31.12.96,