Pratap Ray, J. - (1.) The writ application has been filed by two writ petitioners, one is the Kharibari Tea Company Limited as petitioner No.1, a company within the meaning of the Companies Act, 1956 engaged in the business of tea plantation, manufacturing and processing of tea and by petitioner No.2 working for gain as well as Director of said company, petitioner No.1 in the said organisation. Relief prayed for in this writ application is to this effect: "(a) Issue writ of or in the nature of mandamus commanding the respondent Nos.1, 2 and 3 and each of them to forthwith cancel and/or quash and/or rescind and/or revoke and/or recall the impugned order as in Annexure 'P5' and to treat your petitioners' factory at Sachindra Chandra Tea Estate in the district of Darjeeling as a 'new industry' and forthwith grant concession in accordance with clause (a) of the TOD Tariff in the Tariff and Related Conditions of Supply as in Annexures 'P2 to PP1', to your petitioners at their factory at Sachindra Chandra Tea Estate in the district of Darjeeling whether as new industry or in the alternative as 'Expansion'. (b) Issue a writ of or in the nature of prohibition prohibiting the respondents and each of them and/or the men, agents, servants, staff, employees, authorities and each of them and/or the concerned authority of the respondent No.1 from giving effect and/or further effect to the impugned Annexure "P5" and/or any bill charging for energy without granting concession at the rate and as per clause(a) of the TOD Tariff in the Tariff and Related Conditions of Supply as in Annexures 'P2 to PP1' to your petitioners at their factory at Sachindra Chandra Tea Estate in Darjeeling whether as new industry or in the alternative as 'Expansion'. (c) Issue a writ of or in the nature of Certiorari calling on the respondent Nos.1, 2, 3, 4 and 5 to remit the records of the case to this Hon'ble Court such that this Hon'ble Court may certify the same and do conscionable justice to the case inter alia by quashing the impugned annexure 'P5'. (d) Pass appropriate direction(s)/order(s). (e) Issue Rule Nisi in terms of prayers(a), (b), (c) and (d) above. (f) Pass an interim order staying the operation of the impugned Annexure 'P5' passed by the respondent No.2 dated July 31, 2003, and further restraining the respondents and each of them and/or the men, agents, servants, staff, employees, authorities and each of them and/or the concerned authority of the respondent No.1 from billing your petitioners for electricity consumed and/or energy charges, without giving them concession as per clause (a) of the TOD Tariff in the Tariff and Related Conditions of Supply as in Annexures 'P2 to PP1', to your petitioners at their factory at Sachindra Chandra Tea Estate in the district of Darjeeling whether as new industry or in the alternative as 'Expansion', till the disposal of the Rule and/or this application. (g) An order be passed granting the requisite concession in tariff (energycharge) to the petitioners' said tea processing/manufacturing unit at Kharibari at the rate of 25% on total energy charges for a period of three years and, thereafter, at the rate of 15%, 10% and 5% on the total energy charges during the 4th, 5th and 6th year with effect from August 8,2001 and the same be adjusted and/or given benefits thereof in future electricity consumption bills in accordance with the Tariff and Related Condition approved by the West Bengal Electricity Regulatory Commission. (h) Pass ad interim order(s) in terms of prayer (f) above. (i) Pass such other and/or further order(s)/direction(s) as may seem fit and proper."
(2.) The impugned order in this writ application is annexed at page 134 being Annexure "P5" of the writ application whereby and whereunder Chief Engineer (Commercial), West Bengal State Electricity Board passed a decision rejecting the prayer praying concession in the electricity charges as admissible to the new HT Industries in terms of the tariff schedule of the Board fixed by the Regulatory Commission by holding inter alia, that petitioner No.1, the company was an existing one and was not a new industry on considering the initial application of petitioner No.1 praying supply of power for the purpose of expansion of their existing unit and also prayer of extension of concession on additional consumption arising out of expansion on the ground that the petitioner No.1 failed to satisfy the condition precedent for grant of such concession on additional consumption by producing monthly generation figure of the diesel generating set prior to expansion of their unit. The impugned decision reads to this effect: "West Bengal State Electricity Board Order Sheet Re:AST No.402 of 2003 Kharibari Tea Company Ltd. & Anr. vs. W.B.S.E.Board & Ors. The Kharibari Tea Company Limited made an application to the Hon'ble High Court at Calcutta under Article 226 of the Constitution of India praying for direction to West Bengal State Electricity Board to allow concession in the energy charge as admissible in terms of the Tariff Schedule of the Board. Hon'ble Justice Arun Kumar Mitra after hearing the ld.Advocate of both the parties directed the Chief Engineer (Commercial), Central Commercial Wing, West Bengal State Electricity Board, to consider this writ petition as a representation and dispose of the same in accordance with the law within six weeks from the date of communication of this order after giving an opportunity of hearing to the petitioners. Accordingly, the representatives of the Company were requested to attend the Central Commercial Department, West Bengal State Electricity Board on 7th July, 2003 at 3 p.m.The representatives of the Company expressed their inability to appear before the hearing as per schedule and requested for fixation of the date of hearing on 9th July, 2003. Accordingly, Amit Agarwal and Rajesh Singhania, representatives of the company were heard on 9th July, 2003. The management of Sachindra Chandra Tea Estate was taken over by the Kharibari Tea Company Limited in March, 2001. As per the statement of the Kharibari Tea Company the said tea estate was not functioning for the period from 1991 to 2001 and there was no factory associated with tea estate earlier. In March, 2001 the Kharibari Tea Company Limited made an application to the Board for supply of power. On scrutiny of the said application and letter dated 8.5.2002 of consumer it was revealed that the application for supply of power was for the purpose of expansion of their unit. As per application submitted by the Kharibari Tea Company Limited, West Bengal State Electricity Board provided electricity connection to the tea estate on 30.8.2001. The Kharibari Tea Company Limited subsequently enclosing a copy of the registration certificate issued by the Director of Industries, Govt. of West Bengal, approached the local billing unit of West Bengal State Electricity Board for extension of concession in the electricity charges as admissible to new HT industries in terms of Tariff Schedule of the Board. The petitioner argued that since they have taken supply for the first time from West Bengal State Electricity Board, they should be treated as new industry for the purpose of extension of concession in the energy charge as admissible in the Tariff Schedule of the Board. The Superintending Engineer, Darjeeling (Distribution) Circle, West Bengal State Electricity Board subsequently visited the factory premises of the Kharibari Tea Company Limited and then made a reference to the West Bengal Industrial Development Corporation Ltd. for confirmation as to whether it was a new industry or an expanded industry. West Bengal Industrial Development Corporation Ltd. vide letter dated 11.10.2002 (annexed herewith and marked "A") intimated the Superintending Engineer, Darjeeling (Distribution) Circle, W.B.S.E.B. that it was an expanded unit of Sachindra Chandra Tea Estate according to West Bengal Incentive Scheme, 2000. Thus, it was revealed from the record that (i) it was an expanded unit in terms of the application made by the Kharibari Tea Company Limited for supply of power, (ii) it was an expanded unit in terms of the confirmation received from West Bengal Industrial Development Corporation Ltd. As such, the unit of the Kharibari Tea Company Limited cannot be considered as the new industry for the purpose of giving concession in the energy charge in terms of Tariff Schedule of the Board. It is further relevant to mention here that W.B.S.E.B. also extends concession in the energy charge on additional consumption arising out of expansion to the existing industrial unit provided the consumption is 25% more than the base consumption. Thus, it was examined as to whether concession can be allowed to the Kharibari Tea Company Limited as expanding unit. For extension of concession on additional consumption arising out of expansion the level of consumption prior to the expansion is to be known precisely. The representatives of W.B.S.E.B. who participated in the hearing mentioned that the Kharibari Tea Company Limited had a few tin sheds (as revealed during inspection of the factory premises) with sal wood structure and withering machine which was being run by 18 KVA diesel generator. During hearing it was enquired from the representatives of the Kharibari Tea Company Limited as to whether they can produce monthly generation figure of the diesel generating set prior to expansion of their unit. But the representatives of the Kharibari Tea Company Limited expressed their inability to submit those details. Under the circumstances it is also very difficult to assess the base consumption over which concession in the energy charge can be extended to the company as expanded unit. In view of what has been explained above the Kharibari Tea Company Limited is not eligible to get concession in the energy charge either as a new industry or as a expanding unit. (S.C.Bhattacharyya) Chief Engineer (Commercial)."
(3.) The admitted facts of the writ application are to this effect: (1) Sachindra Chandra Tea Estate was an existing old tea garden under the Kharibari Tea Company Limited situated at Kharibari, District : Darjeeling which was engaged only to grow tea leaves but there was no manufacturing and/ or processing units for the purpose of converting the green tea leaves to marketable tea as finished product prior to sale by resorting manufacturing process with the help of machines, but only one 18 KVA generator was set up to operate fans as were being used to dry tea leaves and there was no electrical supply line neither in the factory nor in the quarters of the employees/workers engaged therein. (2) Members of a 'Mitra' family hereinafter termed as 'Mitras' while acting as Directors of the company, major shareholders filed a suit in the Court of the learned District Judge, Jalpaiguri being O.C.Suit No.139 of 1993 praying perpetual injunction restraining said 'Mitras' from acting as Directors of the company and for other consequential reliefs. By a judgment and decree dated 24thMay, 1995 said suit was decreed by granting permanent injunction restraining 'Mitras' from acting as Directors of the company and by appointing an Administrator for holding General Meeting of the company for the purpose of electing Board of Directors of the company. Assailing that judgment and decree, an appeal was preferred in the High Court at Calcutta, which was disposed of along with C.A.N. No.4286 of 2002 in connection with F.A.T. No.1905 of 1995, C.A.N. No.4286 of 2002 in connection with F.A.T. No.1904 of 1995 and C.O.T. No.1929 of 1996 with F.A.T. No. 1832 of 1999 by the judgment and order dated 17th July, 2002. The appeal and all applications were disposed of by the Division Bench (Coram: A Chakraborty and R. N. Sinha, JJ.) by the following order: "As none of the parties to the proceeding has raised any objection nor any affidavit has been filed contradicting the statement made in the application, it appears to us that the earlier shareholders have no more interest to contest the present application and they have no interest in the company also as they have sold the shares to the present management. In view of the finding, the present appeal is disposed of and the accounts of Kharibari Tea Company Limited prepared for the period from April 1, 1991 to March 31, 2001 in terms of the order of this Court and duly adopted at the Annual General Meeting of the company on 28th April, 2001, be treated as final and the period between April 11, 1991 and 30th April, 2000 be treated as closure for the purpose of subject-matter in this appeal. The appeal and the application are disposed of." (3) By the order dated 15th December, 2000, the said Hon'ble Division Bench aforesaid appointed an Administrator, who thereafter, however, handed over the present management of the petitioner No.1 to the petitioner No.2 and the other directors. (4) The present management of the petitioner No.1 after getting the tea garden of Sachindra Chandra Tea Estate for its management intended to set up tea processing/manufacturing unit in addition to the plantation work as was existing earlier and for that purpose applied for a new connection of electricity supply line to the West Bengal State Electricity Board. (5) That an application dated 8th May, 2002 was filed by one S.M.Rungta, Director of petitioner No.1 as addressed to the Superintending Engineer, Darjeeling (DT) Circle of West Bengal State Electricity Board praying for concession of energy charge in terms of West Bengal Incentive Scheme, 2000 by contending, inter alia, that the erstwhile unit, which was only engaged with harvesting now has switched over to harvesting cum manufacturing/processing unit by expansion of the unit. The letter dated 8th May, 2002 of Kharibari Tea Company Limited as annexed in the affidavit-in-opposition affirmed by one Madhusudan Pal, Superintending Engineer, Darjeeling (DT) Circle on behalf of respondent No.1, the West Bengal State Electricity Board as well as letter dated 7th March, 2001 of petitioner No.l addressed to the Divisional Engineer, West Bengal State Electricity Board read to this effect: "To Dated: 8th May, 2002 The Superintending Engineer Darjeeling (Dist.) Circle West Bengal State Electricity Board 2nd Mile, Sevoke Road, Siliguri. Dear Sir, Sub: Eligibility of Concession on Energy Charge. We are in receipt of your letter No. SE/DDC/B-318/334 dt.6.5.2002 in reply to our letter dated 11.4.2002 and have noted the contents therein. We have applied for granting us concession on energy charges under West Bengal Incentive Scheme, 2000 and not under Incentive Scheme, 1993 as the carrying out of expansion work in our Sachindra Chandra Tea Estate Factory has taken place only during the year 2001. In terms of the West Bengal Incentive Scheme, 2000, every industry which goes for expansion is entitled to claim for concession on energy charges and that has been permitted as per this Incentive Scheme. We, as such, have applied for concession exactly in terms of the West Bengal Incentive Scheme, 2000. The total expansion of the factory has taken place during the year 2001 and a new power connection which was never in existence at that tea estate, has been provided but your good office only during the year 2001. The factory which you have mentioned in your abovequoted letter was a very small factory in a very bad and ugly situation, not capable of undertaking manufacturing of teas there and this expansion which we have done by completing the extensive construction work and installation of machineries to give a shape of new tea factory and thus making the scheme for producing much higher quantity of teas than it was producing prior to this expansion. Moreover, we are enclosing herewith a xerox copy of Eligibility Certificate No.INC(2000)/EC-11C dt. 15.10.2001 issued by West Bengal Industrial Development Corporation vide their letter No.INC-2000(2) General/3639 dated 15/17.10.2001. We as such request you to please consider this matter in its reality and allow us the concession on energy charges in terms of the West Bengal Incentive Scheme, 2000. Yours faithfully For The Kharibari Tea Co. Ltd. (S. M. Rungta) Director." "To Dated-7th May, 2001. The Divisional Engineer West Bengal State Electricity Board Himalayan (O & M) Circle Sevoke Road, Siliguri. Dear Sir, Sub: Bulk Supply for our existing tea manufacturing factory at our Sachindra Chandra Tea Estate. P.O. Kharibari. Dist; Darjeeling Enclosed herewith please find an application for supply of power of our tea manufacturing factory with producing capacity of 3 lacs kgs of tea per annum, situation at our Sachindra Chandra Tea Estate, P. O. Kharibari, Dist.Darjeeling. Please note that the factory is already in existence and is at present running on the engine with shaft driving arrangements which cause much difficulty in keeping the unit in operation. The factory is already in existence and is manufacturing tea from the green leaf harvested at our own garden namely Sachindra Chandra Tea Estate and the factory is already having all the required documents in its possession. We undertake to observe all the formalities with the Electricity Board whatsoever is required for obtaining the required power supply from your good office. The requirement of power for our this factory will be as follows: JUDGEMENT_610_CALHN1_2006Html1.htm Kindly accord sanction so as enable to us in proceeding with changing the driving arrangement immediately. Thanking you, Yours faithfluly, For Kharibari Tea Co. Ltd. Director 01............... JUDGEMENT_610_CALHN1_2006Html2.htm JUDGEMENT_610_CALHN1_2006Html3.htm Kharibari Tea Co. Ltd. Director Date:-05 March, 2001 Signature of the applicant with seal of the firm" (6) Under section 22(1) of the Electricity Regulatory Commission Act, 1998, West Bengal Regulatory Commission approved vide order dated 7lh December, 2001, the tariff and relating conditions for different categories of consumers for the year 2000-01 and 2001-02 wherein there provision was made to provide concession for new industries, expanded industries and sick industries, which read to this effect: "(a) Concession for New Industries: All new HT and EHT industries connected on and after 26th January, 1999 will be eligible for a concession in the tariff (energy charge) based on consumption on the following pattern with effect from the date permanent connection is effect for a period of 6(six) years. All such industrial consumers drawing power at 66/132/220 KV will be given a concession of 40% on the total energy charge for first three years. The concession shall however be 25%, 20% and 15% on the total energy charge during 4tn, 5th and 6th year. Ml such new HT industrial consumers drawing power at 33 KV will be given concession of 30% on the total energy charge for first three years. The concession shall however be 20%, 15% and 10% on the total energy charge during 4th, 5th and 6th year. All such new HT industrial consumers drawing power at 6/6. 6/11 KV will be given concession of 25% on the total energy charge for first three years. The concession shall however be 15%, 10% and 5% on the total energy charge during 4th, 5th and 6th year. There will be no concession in the demand charge or in the fuel and power purchase cost adjustment charge. Concession for new connection being enjoyed by the HV and EHV industries connected on 1.3.95 and onwards but upto 15.1.99 shall however be discontinued after 3 years from the respective date of permanent connection. An additional rebate of 3.5% in the energy charge will be given to new HT and EHT industries in the districts of Jalpaiguir, Coochbehar, Darjeeling, North Dinajpur, South Dinajpur, Malda, Bankura and Purulia. (b) Concession for expansion of existing industries: The above concession for six years (excluding additional rebate of 2.5%) can be availed of by new and existing HT and EHT industrial unit expanding for additional production on or after 26th January, 1999 (as defined in the West Bengal Industrial Incentive Scheme, 1993) only to the extent of additional consumption provided such expansion is certified by the West Bengal Industrial Development Corporation and there should be minimum increase of 25% over previous average monthly consumption of energy in any consecutive 12 months period during the preceding three years. To avail of this concession, the concerned industry will have to install a TOD meter of metering and billing of consumptions. Concessional tariff will be applicable to eligible industries for six years with effect from the date of commissioning of the expanded facilities which is to be certified by WBIDC or the Director of Cottage and Small Scale Industries, West Bengal, as the case may be, or the date of installation of TOD meter whichever is later. (c) Concessions for Sick/Rehabilitated Sick Industries : All concession for the first three years (excluding additional rebate of 2.5%) applicable for new industries will be available for the running HT/EHT Sick/Closed Industries that are covered under rehabilitation package approved by BIFR/IDBI/SIDBIS/Financing Nationalized Bank depending on whether it is a large/medium or SSI Unit. In case, any such consumer is defaulter in payment of Energy Bill and has an accumulated outstanding dues, concessional tariff can also be allowed to them provided they pay 25% of their dues including LPSC outright and undertake to pay the balance dues in maximum 10(ten) monthly instalments along with LPSC accrued further. To avail of this concession, the concerned industry will have to install a TOD meter for metering and billing of consumption. Concessional tariff shall be made available to eligible running Sick/Closed Industrial Units from the date of approval of the revival packages (to be certified by the WBIDC or the Director, C&SSI as the case may be) or the date of installation of TOD meter whichever is later irrespective of date of submission of application. If the sick industry is in the state of disconnection, the date of availing of concessional tariff will be the date of reconnection or the date of installation of TOD meter whichever is later. Concession to the eligible sick industries shall continue for a period of 3(three) years or upto the date of expiry of the approved revival packages (BIFR/ SIDBIS/Financing Nationalized Bank whichever is earlier). (d) Other stipulations: Present restrictions on the drawal of power during peak house will be lifted as and when TOD meters are installed and made operative in the case of existing industries, who opt for TOD system of metering and billing. Those who will opt for TOD meter, will have to make an advance payment of Rs.30,000/- (Rupees thirty thousand) only to the Board towards cost of TOD meter and the said advance would be refunded through electricity bills in 10(ten) equal monthly instalments. The monthly meter rent payable by the consumer opting for TOD meter would be Rs.1,200.00 (Rupees one thousand two hundred)only. However, till such time the advance is fully adjusted only 75% of the monthly meter rent applicable for TOD meter i.e., Rs.900.00(Rupees nine hundred) only will be recovered. The monthly meter rent would be revised from time to time as and when required. If the industries eligible for concession in the energy charge in terms of clauses (a), (b) and (c) mentioned hereinbefore,default in payment of electricity bills within due date of payment during the availability period of concession, they will lose concession in the energy charge for that particular billing period only. Those industrial units who apply for and avail of subsidy on purchase and installation of captive generating sets as per W. B. Incentive Scheme, 1991, will not be eligible for these concessions. To avail of concessions in the energy charge, the industries will have to furnish a certificate from the WBIDC to the effect that they have not applied or availed of subsidy on purchase and installation of captive power generating sets as per W.B. Incentive Scheme, 1993. However, for SSI units which do not come under the purview of WBIDC, shall have to submit the certificate from the Director, Cottage & Small Scale Industries, Govt. of West Bengal, for this purpose. Industries which received subsidy on captive generation set for the original unit but have not availed of the same for the expanded unit are also eligible for concession in the energy charge for the increased consumption due to expansions subject to fulfilment of associated stipulations. Power Factor Rebate/Surcharge (for industrial consumers only): Rebate: @0.5% on the energy charge for every 1% increase in the P.F.above 92% subject to a ceiling of 2% Surcharge: @0.5% on the energy charge for every 1% fall in the P.F. below 85% subject to a ceiling of 2.5%." (7) The petitioners claimed concession of energy charge on the ground that they had set up a new industry and in support of said claim submitted the document "West Bengal Incentive Scheme, 2000", issued by Directorate of Industries, Government of West Bengal as well as the letter dated 11th October, 2002 issued by Deputy Manager (Incentive) of West Bengal Industrial Development Corporation Ltd. The said letter of 11th October, 2002 reads to this effect: "By Hand West Bengal Industrial Development Corporation Ltd. (A Government of West Bengal Undertaking) 5, Council House Street, Calcutta - 700 001. INC-2001(19) General /4296 11th October, 2002 To The Superintending Engineer Darjeeling Distribution Circle West Bengal State Electricity Board 2nd Mile, Sevoke Road, P.O.Siliguri Dist. Darjeeling. Sub; Kharibari Tea Co. Ltd. (Sachindra T. E.) Dear Sir, This refers to the letter No. SE/DDC/B-318 Dated.5.10.02 from S.E.DDC re M/s. Kharibari Tea Co. Ltd. Actually in the West Bengal Incentive Scheme, 2002 for any company which has/had a running factory at any point of time in West Bengal, on establishment of a new unit, the new unit is termed 'expansion'. Therefore the term expansion in case of Sachindra Tea Estate, is according to the above West Bengal Incentive Scheme, 2000. The above tea garden was lying closed for a few years and facilities became defunct and unserviceable. The present owners viz. Kharibari Tea Co, Ltd. took over the tea garden and refurbished it in totality. Thus only because of the vagaries of West Bengal Incentive Scheme, 2002 the word expansion is used. For all practical purposes, including those of power rebate and electricity duty, the full unit is to be considered as a new industry. We believe this will answer your queries. Thanking you. Yours faithfully, (J. Majumdar) Dy. Manager (Incentive)." (8) Since the matter was kept pending by the West Bengal State Electricity Board, the writ petitioners moved a writ application being A.S.T. No.402(W) of 2003, which was disposed of by the order dated 2nd June, 2003 by A. K. Mitra, J. directing the respondent No.2, Chief Engineer (Commercial), Central Commercial Wing, West Bengal State Electricity Board to consider the writ application as a representation and to dispose of the same in accordance with law by passing a reasoned order. In the said writ application, petitioner took the identical point as raised in this writ application, namely, their claim as a new unit for being eligible to have concession of tariff of electricity. Petitioners were heard and reasoned decision was communicated, which is the impugned decision of this writ application as already quoted earlier in earlier paragraph.;