RANJAN GOGOI,J. - (1.) The State of Himachal Pradesh is in appeal before this court challenging an order of the High Court of Himachal Pradesh dated 5th September, 2003 allowing the writ petition filed by the respondents - M/s Gujarat Ambuja Cements Ltd. and holding that the respondents - writ petitioners' entitlement to the benefit of power tariff freeze, would include the right to reimbursement of all the amounts paid by it on account of Peak Load Exemption Charge (hereinafter referred to as "PLEC").
(2.) The core facts that will be necessary to be noticed are as follows: The respondent - writ petitioner no.1 - M/s Gujarat Ambuja Cements Ltd. set up an industrial unit for manufacture of portland cement in Darlaghat, District Solan, Himachal Pradesh. The approval of the State Government for establishment of the said unit was accorded on 23rd January, 1990. The cement manufacturing unit of the respondents - writ petitioners was accorded the "prestigious status" to avail of incentives in accordance with the Revised Rules Regarding Grant of Incentive to Industrial Units in Himachal Pradesh, 1991 (hereinafter referred to as "Incentive Rules"), as amended from time to time. To be entitled to the incentives under the aforesaid Incentive Rules the respondents - writ petitioners had to and infact had satisfied the stipulated requirement of capital investment at least of Rs. 50 crores and guaranteed employment of minimum of 200 persons on permanent/regular basis who are bona fide residents of Himachal Pradesh. The cement manufacturing unit of the respondents - writ petitioners commenced commercial production on 26th September, 1995. At that point of time, under the Incentive Rules, the respondents - writ petitioners were entitled, inter alia, to a 'power tariff freeze' for a period of four years from the date of commencement of commercial production. Specifically, the tariff freeze was to be worked out by granting to the respondents - writ petitioners reimbursement of any increase in industrial power tariff after the date of commencement of commercial production for a period of four years. The formula for calculating the increase in power tariff to be reimbursed was the rate of electricity per unit billed minus the rate of electricity as on date of commercial production.
(3.) On 28th January, 1994 (before commencement of commercial production) the respondent - writ petitioner was informed by the Chief Engineer (Commercial) of the Himachal Pradesh State Electricity Board (hereinafter referred to as "the Board") that the power required by its cement unit (i.e. 21000 KW) can be made available subject to certain terms and conditions mentioned in the aforesaid letter (dated 28th January, 1994). By the said letter the respondent - writ petitioner was informed that Peak Load hours restrictions will be imposed between 6 p.m. to 9 p.m. for the summer months (April to October) and 5 p.m. to 9 p.m. for the winter months (November to March). Thereafter, it appears that in exercise of powers under Sections 49 and 59 of the Electricity (Supply) Act, 1948, the Board brought into force a schedule of electricity tariff known as "Himachal Pradesh State Electricity Board Schedule of Electricity Tariff, 1994 w.e.f. 31st May, 1994. Clause (m) of the said Schedule which deals with "Peak Load Hour Supply" is as follows: "m) PEAK LOAD HOUR SUPLY Supplies under Schedule Agriculture pumping (A.P.), Small Industrial Power (S.P), Medium Industrial Power Supply (Schedule M.S.), Large Industrial Power Supply for Mini Steel Mills etc. and for others (Schedule L.S.-1 and L.S.-2) and Water and Irrigation pumping (Schedule W.I.P.) shall not be available during the peak load hours as may be notified by the Board from time to time. However, in the case of continuous process industries, or where a particular industrial consumer wants to run his industry during the peak load hours for any special reasons, a separate agreement shall have to be entered into with the Board." ;