M/s Koyenco Bazaar v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** ## **MONDAY, THE 9TH DAY OF JANUARY 2012/19TH POUSHA 1933** **OP.No. 19592 of 1998 (G) -----------------------------------** **PETITIONER(S):** **------------------------** **M/S.KOYENCO BAZAAR, KOYENCO HOUSE, WEST HILL, KOZHIKODE A FIRM REGISTERED UNDER THE INDIAN PARTNERSHIP ACT REPRESENTED ITS PARTNER P.P.NOUASHIQUE.** ## **BY ADV. SRI.C.P.MOHAMMED NIAS** **RESPONDENT(S): ---------------------------** **1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM PALACE.P.O., THIRUVANANTHAPURAM.** **2. THE SPECIAL OFFICER(REVENUE), KERALA STATE ELECTRICITY BOARD, VYDYUTHIBHAVANAM, PATTOM PALACE.P.O., THIRUVANANTHAPURAM.** **3. THE ASST.EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KOOVOOR, CALICUT.** **BY ADV. SRI.P.SANTHALINGAM, SC, KSEB** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J U D G M E N T** ## **None appears. Dismissed for default.** **09/01/2012 SD/-B.P.RAY,JUDGE /TRUE COPY/ sts P.A.TO.JUDGE** **/TRUE COPY/ P.A.TO.JUDGE** ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. ============================== OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 =========================** ## **Dated this the 27[th] day of March, 2014** ## **J U D G M E N T** ## Antony Dominic, J. Though issues raised are common and these cases were together heard, we are passing separate judgments in these cases. ## WA Nos.1945/11 and 94/12 2. These writ appeals are filed by the official respondents in WP(C) No.18784/06. The 1[st] respondent is a High Tension consumer of the energy supplied by the appellants in WA No.94/12 and is engaged in the manufacture of MS ingots at their factory at Kanjikode in Palakkad District. They obtained SIA registration on 18/3/96 and commenced commercial production on 29/12/96. On that basis, they claimed the benefit of Pre 92 tariff, in pursuance of Ext.P2 Government Order dated 6/2/92. That was eventually rejected by Ext.P15 order passed by the Board and this order was confirmed by the Government in Ext.P22 order. The main reason stated was that the 1[st] respondent is a OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 2 :** power intensive unit and therefore is not entitled to the concessional tariffs. 3. These orders were challenged before this Court in WP (C) No.18784/06 filed by the 1[st] respondent. Relying on Ext.P5 order dated 22/7/93, the learned single Judge held that the 1[st] respondent is not a power intensive unit as defined therein and that the rejection of their claim for the benefit of Pre 92 tariff is illegal. On that basis, the learned single Judge directed that based on Ext.P9, the certificate of eligibility, their entitlement for the benefit of Ext.P2 Government order should be recognized and extended. It is this judgment which is under challenge in these appeals. 4. We heard the learned Government Pleader appearing for the appellants in WA No.1945/11, the learned senior counsel appearing for the appellants in WA No.94/12 and learned counsel appearing for the 1[st] respondent. 5. Before we deal with the merits of the case, we shall make reference to the relevant orders issued by the Government of Kerala and the Kerala State Electricity Board which were relied OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 3 :** on by both sides. Ext.P2 is the order dated 6/2/92 issued by the Government of Kerala whereby for the first time it was announced that new industrial units will be exempted for five years from payment of enhanced power tariff which came into effect on 1/1/1992. One of the main condition was that such concessional tariff will be available only to those units which commenced commercial production between 1/1/92 to 31/12/96. By Ext.P3 order dated 27/3/92, the KSEB, the appellants in WA No.94/12, adopted the Government Order and prescribed the procedural requirements to be satisfied by eligible claimants. 6. Subsequently, Ext.P6 order was issued by the Government of Kerala on 26/11/1993 introducing a negative list of 9 industries and stating that such industries will not be eligible for state investment subsidy. In so far as this case is concerned, item No.7 being relevant, is extracted below for reference; _“7. Power intensive units based on electro thermal/electro chemical processors or units where total power requirement exceeds 2500 KVA of contract load and where cost of power is more than 25% of cost of production of the items_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 4 :** _manufactured except where the units generate their power requirements in excess of 2500 KVA of contract load by own captive power.”_ ## 7. In para 4 of the order, the Government also stated thus; _“4. Government further order that the industries listed out above will not be eligible for any financial assistance/loan/tax exemption from Government including electricity tariff concession and duty exemption. This will not however, apply to loans by financial institutions/banks. But the eligible grant/loan under S.C.P/TSP schemes will continue to be sanctioned as at present.”_ Subsequently, the Government issued Ext.R1(d)2 order dated 19/4/94, where, they clarified Ext.P6 order mentioned above as follows; _“3. Government wish to clarify that the financial assistance/loan/tax exemption from Government, including electricity, tariff concession and duty exemption will continue to be/will be available to all industries which were provisionally registered before 31/12/93. Those industries put in para 1 of the G.O. read above and provisionally registered on or after 31.12.1993 alone will be ineligible for financial_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 5 :** _assistance, loan/tax exemption from Government, including electricity, tariff concession and duty exemption. Provisional registration for the purpose of large and medium units will be taken to mean as in para 2 of the G.O. read above viz., the date of S.I.A. Registration/filing of I/I.E.M with Government of India/Letter of intent/submission of application for financial assistance, as the case may be.”_ This order was adopted by the KSEB by Board Order dated 17[th] of May, 1994. 8. Still later, Government issued order dated 11[th] October 1996, a copy of which is Ext.P8, where they enumerated 16 industries and stating that any one or more of the following processes shall be classified as power intensive industries and power allocation need not be given to those units. This order to the extent it is relevant reads thus; _“2. In the D.O. letter read as second paper above the Chairman, Kerala State Electricity Board has proposed that the industries which Manufacture anyone of the following products or using induction arc furnaces or industries engaged in any one or more the following processes shall be classified as_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 6 :** _Power Intensive Industries and power allocation need not be given to these units:-_ _1. Calcium Carbide._ _2. Caustic Soda_ _3. Charge Chrome_ _4. Ferro Chrome_ _5. Ferro Manganese 6. Ferro Silicon_ _7. Ferro Alloys_ _8. Potassium Chlorate_ _9. Silicon Carbide_ _10. Sodium Chlorate_ _11. Sodium Metal_ _12. Chlorate/Per Chlorates 13. Steel_ _14. Industries engaged in Electro Chemical/Electro Thermal Processes_ _15. Industries using Induction/Arc furnaces_ _16. In other cases where the cost of power is more than 25% of the cost of the product manufactured._ _3. Government have examined the proposals of the Chairman, Kerala State electricity Board in all its aspects and are pleased to order that the industries which manufacture any one of the products enlisted/categories mentioned in para 2 above will be classified as “Power Intensive Units” and power allocation will not be given to these units for the time being till the power position of the state improves._ _4. However power allocation can be given to new units provided they agree to generate 50% (fifty percent) of their required power by their own_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 7 :** _generation. Power allocation to these units will be given only after they set up their own generation facility up to 50% of their required power.”_ 9. Again on 24/11/98, the Government issued Ext.R1(k) modifying the negative list in Ext.P6 and stated thus; _“2. The Director of Industries & Commerce has in his letter read above proposed some modifications to the negative list. The Government have examined the proposal of the Director of Industries & Commerce and decided to amend the G.O. read above by including the following Industries also in the negative list:_ _1. Metal Crushers including Granite Manufacturing Units._ _2. All types of Steel Re-rolling Mills, units manufacturing iron ingots._ _3. Ferro Silicon._ _4. Calcium Carbide._ _5. Cement Manufacturing. 6. Potassium Chlorate._ _3. This order will be effective from the date of_ _order and will be applicable to all units taking provisional registration of IEM/SIA as the case may be from the date of this order. All the conditions stipulated in the G.O read above and subsequent amendments/clarifications issued thereon will be applicable to this order also.”_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 8 :** The above are the orders which are relevant in the context of the claim of the 1[st] respondent for the benefit of Pre 92 tariff in terms of Ext.P2 Government Order. 10. In so far as the 1[st] respondent in these two appeals are concerned, as we have already stated, according to them, they obtained SIA registration as contemplated in Ext.R1(d)2 on 18/3/96 and commenced commercial production on 29/12/96. It is on that basis they claimed the benefit of Pre 92 tariff which was rejected by the Board by Ext.P15 and confirmed by the Government in Ext.P22 on the ground that they are a power intensive unit. 11. In the judgment under appeal, the learned single Judge has held that, in the absence of the definition of power intensive unit elsewhere, the question whether the industry is a power intensive one or not has to be considered with reference to Exts.P4 and P5 orders. Ext.P4 is an order issued by the Electricity Board on 18/1/93 clarifying that industries requiring power above 5 MVA (including additional load also) shall be classified as power intensive units and when power allocation is granted to such OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 9 :** industries, they shall be insisted to use their own captive power to the extent of at least 50% of their required demand. Subsequently, Board issued Ext.P5 order dated 22/7/93 partially modifying Ext.P4 and directing that industries having connected load exceeding 3MVA and having load factor not less than 60% shall be defined as power intensive units. Therefore, according to the learned single Judge, to be a power intensive unit in terms of Exts.P4 and P5, the power requirement of the industry should be above 3 MVA and if it is less than that quantity, the industry cannot fall within the definition of power intensive unit. 12. This finding of the learned single Judge is contradicted by the learned senior counsel appearing for the appellants by contending that as is evident from Exts.P4 and P5 Board orders itself, these orders were issued only for the purpose of power allocation and not for any other purpose. Counsel also made reference to the tariff orders issued by the Board both for EHT and HT consumers, where power intensive units have been defined with reference not only to the consumption but also to the nature of the activities carried on by the consumer. According to OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 10 :** the learned counsel, therefore, the expression power intensive unit should have been decided not with reference to Exts.P4 and P5 but with reference to its definition in the tariff orders issued by the Board periodically. On this basis, learned Senior counsel for the Board contended that in view of the definition of power intensive unit as contained in the tariff orders and since admittedly the manufacturing process of the 1[st] respondent is based on electro thermal process, by virtue of Clause 7 of Ext.P6, the 1[st] respondent is bound to be excluded from the purview of Ext.P2 order and the Pre 92 tariff announced by the Government. On the other hand, learned counsel for the 1[st] respondent contended that since power intensive unit was defined by the Board only in Exts.P4 and P5, the learned Judge was fully justified in relying on these documents. He also pointed out that the argument that Exts.P4 and P5 were issued only for regulating power allocation is factually and legally untenable. 13. In our view, there is force in the contention of the appellants that Exts.P4 and P5 were issued by the Board only for regulating power allocation to power intensive units and it was in OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 11 :** that context, that 5 MVA and 3 MVA were specified in these orders. This is evident from Ext.P4 itself. At the same time, the tariff orders, which were then in force contained separate tariffs for power intensive units. These orders also contained description of the nature of the industries that fell within that category. The question whether in the context of the claim for Pre 92 tariff, the industry concerned is a power intensive one or not is a matter which will have to be decided with reference to the tariff orders, then in force, which defined this expression for tariff purposes. Therefore, the conclusion of the learned single Judge that in view of Ext.P5, which modified Ext.P4, only units which are having connected load exceeding 3MVA and having load factor not less than 60% shall be power intensive units cannot be sustained and in our view, that by itself could not have determined the status of the 1[st] respondent that it is not a power intensive unit. Therefore, the judgment of the learned single Judge concluding the issue in favour of the 1[st] respondent, cannot be sustained for the aforesaid reasons. However, that does not by itself foreclose the claim of the 1[st] respondent for the benefit of Pre 92 tariff as contemplated OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 12 :** in Ext.P2 and according to us, their eligibility will depend upon the decision on the other issues that were raised during the hearing. Since these contentions are not raised or dealt with in the impugned orders, we feel that we should remit the matter for a fresh decision and therefore, we intend only to notice the contentions and leave them open to be decided by the Board itself. 14. The learned senior counsel for the appellant relied on Ext.R1(k) order dated 24/11/98 and contended that subsequent to Ext.P2 introducing the benefit of Pre 92 tariff to the industries mentioned therein, the Government issued Ext.P6 order dated 26/11/93, by which a negative list was introduced. In that list, power intensive units based on electro thermal units were also included. Thereafter, the Government further ordered that industries included in the negative list will not be eligible for any financial assistance, loan or tax exemption from the Government including electricity tariff concession and duty exemption. Subsequently, by Ext.R1(k), the Government modified Ext.P6 and introduced six new items, among which, item No.2 was, all types OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 13 :** of steel re-rolling mills and units manufacturing iron ingots. 15. The learned senior counsel contended that though Ext.R1(k) order was issued only on 24/11/98, by this order, the Government clarified Ext.P6 and therefore Ext.R1(k) is retrospective in operation. In support of this contention, learned counsel relied on the Apex Court judgment in _**Secretary to Govt**_ _**v. Peekay Re-rolling Mills (P) Ltd.,**_ {(2007) 4 SCC 310}, where, referring to Ext.R1(k) itself, it was held thus; _“15. One of the points which arises for determination in the present case is whether Premium Ferro Alloys Ltd. is entitled to claim tax exemption on additional investments made after 24.11.1998. It is urged on behalf of the said company (the respondent herein) that G.O.No.169/98/ID dated 24.11.1998 by which the State Government modified the negative list by including all types of steel re-rolling mills, units manufacturing iron ingots, operated prospectively. In this connection reliance was placed on clause 3 of the said G.O._ _16. We do not find any merit in the above contention. We quote hereinbelow clause 2 and clause 3 of the said G.O. dated 24.11.1998:_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 14 :** _“2. The Director of Industries & Commerce has in his letter read above proposed some modifications to the negative list. The Government have examined the proposal of the Director of Industries & Commerce and decided to amend the G.O. read above by including the following Industries also in the negative list:_ _1. Metal Crushers including Granite Manufacturing Units._ _2. All types of Steel re-rolling Mills, units manufacturing iron ingots._ _3. Ferro Silicon._ _4. Calcium Carbide._ _5. Cement Manufacturing; and_ _6. Potassium Chlorate._ _3. This order will be effective from the date of_ _order and will be applicable to all units taking provisional registration of IEM/SIA as the case may be from the date of this order. All the conditions stipulated in the G.O read above and subsequent amendments/clarifications issued thereon will be applicable to this order also.”_ _17. Reading of the above two clauses, it is clear that the G.O. dated 26.11.1993/27.11.1993 got modified by G.O. dated 24/11/1998. Therefore, if the said G.O dated 26.11.1993/27.11.1993 is found to be applicable then the G.O dated 24.11.1998 which is modification of the earlier_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 15 :** _G.O dated 26.11.1993/27.11.1993 would apply as a clarificatory G.O. We may reiterate that in our judgment in Peekay Re-Rolling Mills (P) Ltd., the question of interpretation of clause 7 of G.O dt 26.11.1993/27.11.1993 has been remitted to the High Court. However, as far as retrospectivity of G.O dated 24.11.1998 is concerned, we are of the view that the said G.O is clarificatory. Therefore, there is no merit in the contention raised on behalf of Premium Ferro Alloys Ltd. that the said G.O dated 24.11.1998 is prospective and not retrospective.”_ 16. On this basis, learned counsel contended that by virtue of Ext.R1(k), which is retrospective in nature, Ext.P6 stands amended and since the 1[st] respondent is manufacturing iron ingots, they are liable to be excluded from the purview of the Pre 92 concessional tariff scheme itself. 17. However, this contention was resisted by the learned counsel for the 1[st] respondent by pointing out that this was not a reason relied on by the appellants or the Government either in Ext.P15 or in Ext.P22. According to them, in view of the principles laid down by the Apex Court in _**Mohinder Singh Gill v. Chief**_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 16 :** _**Election Commissioner**_ {AIR 1978 SC 851), the order will have to survive or perish for the reasons mentioned therein and that fresh reasons cannot be supplemented either through the affidavits or arguments. Counsel also contended that the claim raised by the 1[st] respondent was on the basis of Ext.P2 order dated 6/2/92 and that such claim cannot be nullified by Ext.P6 order or Ext.R1(k), which were issued far later to Ext.P2. 18. Yet another contention raised by the learned senior counsel for the appellants was that by virtue of para 4 of Ext.P6, the Government ordered that all industries included in the negative list will not be entitled to financial assistance including electricity tariff concession and duty exemption. According to the Senior counsel, this was clarified by Government by Ext.R1(d)2 order dated 19[th] of April, 1994, which is already extracted in the previous paragraph. Counsel pointed out that a reading of this paragraph would show that industries which were provisionally registered on or after 31/12/93 will be ineligible for financial assistance including electrify tariff concession. Therefore, learned senior counsel pointed out that in so far as the 1[st] respondent is OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 17 :** concerned, Ext.P9 shows that SIA registration was obtained by them only on 18/3/96. This according to the counsel also dis entitled the 1[st] respondent for the benefit of Pre 92 tariff. 19. We have already given our reasons for not deciding on these contentions. In this context, we should also notice that while Ext.P15 order was passed by the Board without hearing the 1[st] respondent, Ext.P22 was passed after hearing the 1[st] respondent. We feel that in the light of our conclusion on Ext.P5, the appropriate course to be adopted in this case is to set aside the judgment of the learned single Judge and direct that the matter shall be decided afresh. Accordingly, the judgment of the learned single Judge is set aside and we direct that the eligibility of the 1[st] respondent shall be decided by the Board afresh taking note of the above noted contentions of the parties and also the relevant orders issued by the Government as well as the Board. This shall be done with notice to the 1[st] respondent and such decision shall be taken, as expeditiously as possible, at any rate within two months of receipt of a copy of this judgment. 20. Writ appeals will stand disposed of as above. OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 18 :** ## WP(C) No.24077/05 21. Petitioner herein is also a High Tension consumer of the Board engaged in the manufacture of steel ingots. According to them, by Ext.P24 order dated 10/6/96, 1950 KVA power was allotted to them and utilizing the energy supplied, they commenced commercial production on 31/12/96. However, their claim for the benefit of Pre 92 tariff was rejected by Ext.P15 order, in which the reasons stated in para 6 and 7, read as under; _“6. The petitioner Company is a power intensive unit and the connection to this firm was given at a time when there was ban against effecting power supply to power intensive units as ordered in B.O.1796/96 dated 30/7/1996. This is one among the unauthorised power connections given during power cut period that was detected by the Vigilance Wing of the Board. The conditions laid down in Board Order dated 17.12.1996 was not fulfilled by the petitioner. They had not installed captive generator for 50% of the consumption and metering equipment to measure such generated power as required in the above order. Hence the power supply effected to the firm was not in_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 19 :** _confirmity with relevant Board Orders and the supply has been obtained by misrepresentation._ _7. The Government of Kerala and K.S.E. Board are allowing various concessions and incentives to various sectors of consumers like Agriculture, Industry in order to promote industrialisation. But these concessions are aimed for those who got service connection legitimately. The petitioner consumer got service connection in an illegitimate way by violating the stipulation and regulations envisaged in the Board order dated 17.12.1996 and 30/07/1996 and hence concessional tariff at Pre-92 rates is denied to M/s.Agni Steels, Pvt. Ltd”._ 22. During the hearing of the case, learned counsel for the petitioner produced a communication from the Additional Director General of Police to the Principal Secretary to Government, Vigilance Department dated 11/8/98 recommending that the proceedings initiated under the provisions of the Prevention of Corruption Act be dropped for the reasons stated therein. 23. In our view, since facts are identical, for the reasons that we have assigned in our judgment in WA Nos.1945/11 and 94/12 and also for the reasons mentioned in the communication dated 11/8/98 referred to by us, Ext.P15 rejecting the claim of the OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 20 :** petitioner herein for the benefit of Pre 92 tariff is set aside and this matter also will have to be reconsidered by the Board. This shall also be done by the Board with notice to the petitioner and as expeditiously as possible, at any rate, within two months of receipt of a copy of this judgment. ## O.P. No. 19592/98 24. Petitioner is an industrial unit which is also engaged in the manufacture of steel ingots. Going by their claim, 2000 KVA power was allocated to them by order dated 24/8/96 and they obtained SIA registration on 3/12/96 and commenced commercial production on 31/12/96 itself. However, their claim for the benefit of Pre 92 tariff was rejected by the Bord by Ext.P15 order and the reasons thereof are stated thus; _“1. M/s Koyenco Bazar had originally availed power for 1 month on 30/12/96 on their own request from the existing 11 KV Peruvayal feeder from Kuttikatoor Sub Station as M/s Koyenco Iron & Steel Co. their sister concern, connected to 11 KV Peruvayal feeder would not use power as they were under shut down for annual maintenance up to 1/97 and from 2/97 onwards M/s Koyenco Iron &_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 21 :** _Steel Co. started functioning, switching off the power supply to M/s Koyenco Bazar on their own accord. The Deputy Chief Engineer, Electrical Circle, Kozhikode had since issued a disconnection notice to the firm on the ground that the company had not installed captive generator set of suitable capacity stipulated in the B.O.No.3028/96 (Plg.Com.3100/96) dt. 17.12.96 as this being a power intensive unit. But the supply could not be disconnected as the consumer obtained a stay order from the Hon'ble High Court in OP No.5336/97. The O.P is pending in the Hon'ble High Court. The power supply to the firm was not in conformity with the orders of the Board. However the question of granting concessional power tariff to the firm shall be considered subject to the result of the OP No.5336/97 filed by the consumer in th Hon'ble High Court._ _2. By virtue of the order of injunction in OP No.5336/97 the power connection had to be kept live even after effective power supply was stopped from 2/97 onwards. Hence the consumer had to be charged for monthly demand charges for 2/97 onwards as per relevant clause in the agreement. Monthly minimum has to be paid according to the agreement irrespective of whether power is consumed or not. Hence the monthly minimum_ OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 22 :** _charged from 2/97 onwards is in order. However monthly minimum has not been charged from 5/97 to 1/98 provisionally vide interim order in OP No.11762/97 filed by the consumer in the Hon'ble High Court which is pending disposal by the Hon'ble High Court._ _The representation dated 9.7.98 of the consumer is disposed of in the above manner.”_ It is this order which is challenged before us. 25. Learned counsel for the petitioner relied on the facts mentioned above and also Ext.P1, the certificate of eligibility issued by the Additional Director of Industries and Commerce. According to the learned counsel, in view of the judgment of this Court in WA No.76/02, the Board is bound by the certificate and should have extended to them the benefit of Pre 92 tariff. Counsel also contended that the reasons stated in Ext.P15 order that the petitioners did not comply with the requirements of the Board order dated 17/12/96 are irrelevant. According to him, in the judgment in OP No.5749/97 and OP No.14609/97, this Court has already held the requirement of the said order to be prospective. Counsel therefore contended that as the petitioner OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 23 :** had already complied with all the requirements of the Government order dated 6/2/92, the petitioner should not have been denied the benefit of Pre 1992 tariff. 26. Though the aforesaid submissions made by the learned counsel for the petitioner would sound attractive at the first blush, a closer examination of it would show that there is no substance in what is argued and that the claim of the petitioner is a fraudulent one and deserves only to be rejected. Ext.P15, the impugned order, shows that the petitioner had availed power for one month on 30/12/96 on their own request from the existing 11 KV Peruvayal feeder from Kuttikattoor Sub Station on the ground that M/s Koyenco Iron and Steel Company, one of their sister concerns, connected to 11 KV Peruvayal feeder, was under shut down for annual maintenance up to January 1997. It is also stated that from February, 1997, M/s Koyenco Iron and Steel Company started functioning, switching off the power supply to the petitioner's unit. Thereafter also, petitioner continued to unauthorizedly avail of supply and hence, disconnection notice was issued to them. OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 24 :** 27. The steps for disconnection taken against the petitioner were challenged before this Court in OP No.5336/97. In that OP, petitioner had obtained an interim order from this Court obliging the Board to continue supply. The correctness of these facts are not disputed in the pleadings or during arguments. Instead, what is argued is that whatever be the source of energy, the petitioner had commenced commercial production on 31/12/96, which is within the period specified in the Government Order dated 6/12/1992 and therefore should be given the benefit. The admitted case of the petitioner shows that on 31/12/96, when they allegedly commenced commercial production, the power supply availed of by them for energizing their factory was diverted from the power which was earmarked to be supplied to their sister concern viz., M/s Koyenco Iron and Steel Company. This supply was availed by them for a period of one month from 30/12/1996. When their sister concern revived their manufacturing, the supply to the petitioner was ordered to be disconnected in February, 1997. In other words, on 31/12/96, when the petitioner claims to have started commercial OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 25 :** production, their factory was not energized by the Board by supplying power to the petitioner and even if the case of the petitioner is that commercial production was commenced on 31/12/1996, it was on borrowed power from another consumer. This therefore means that the petitioner did not have power supply any time on or before 31/12/96 and this itself, in our view, disentitled the petitioner for the benefit of the Government Order dated 6/2/1992, which ultimately was rejected by Ext.P15 challenged in this original petition. 28. Counsel contended that power was allotted to them on 24/8/96 and that the fact that there was delay in actual supply could not be used to the prejudice of the petitioner. The entitlement for Pre 1992 tariff has to be determined with reference to the conditions that are enumerated in the Government Order of 6/2/92. This necessary requires supply of energy to the consumer. Therefore, even if there is delay as contended by the petitioner, so long as they did not receive actual supply of energy of their own to commence commercial production within the period specified in the Government Order OP No.19592/98, WP(C) No.24077/05, WA Nos.1945/11 and 94/12 **: 26 :** dated 6/2/92, delay, even if it was there, cannot be taken advantage of to claim the benefit of the Government Order. 29. In our view, the petitioner has no claim for the benefit claimed by them and therefore rejection of their claim is perfectly justified. Any contrary view, if taken by us, would be recognizing a fraud played by the petitioner for availing of the benefit of the Government Order dated 6/2/92. Original Petition deserves only dismissal and we do so. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **JUDGE** **ANIL K. NARENDRAN** Rp **//True Copy//** **PA TO JUDGE**