JUDGMENT
V.S. Sirpurkar, J.
1. This writ appeal has been filed by the Tamil Nadu Electricity Board, challenging the order dated 28-3-1995, passed in W.P. No. 6912 of 1992, filed by the first respondent herein, viz. Sree Srinivasa Industries.
2. By the instant order, the learned single Judge of this Court has allowed the writ petition and has held that the industry was entitled to the concessional tariff rate for a period of five years from the date of commencement of the industry viz. 7-8-1989 and that they would also be entitled to the backward area concession at the rate of
15% of consumption bills as available to the other industries. The learned single Judge has directed the respondent/appellant herein to give the petitioner the concessional rate of electricity for a period of five years and the backward area concession referred to above.
3. Some facts would be necessary to appreciate the controversy. The respondent industry set up its factory and started getting the electric energy with effect from 7-8-1989. The industry is engaged manufacturing Calcium Carbide which is used in gas weilding and cutting and they required the electrical energy for running the industry and for that purpose entered into an agreement with the TNEB for supply for 500 KVA, maxium demand of electricity. The supply of electricity to the High Tension electricity consumers is governed by the Schedule to the Tamil Nadu Revision of Tariff Rates on Supply of Electricity Energy Act (Act 1 of 1979) and more particularly, to the schedules appended to the Act. It is admitted case that the industry, which is set up in backward area gets the electrical energy in concessional rate of 15% for five years. At the time when the electric connection was granted to the industry, admittedly, the industry was at Thirumangalam, which was then a backward area. There is no dispute that at that time, the said village was notified backward area as per the relevant Government Orders. However, there arose a dispute after the connection was granted, in respect of this concession. The Government of Tamil Nadu issued G. O. Ms. No. 423 (ID), dated 7-7-1989 by which certain areas which were originally declared as backward areas were deleted with effect from 7-7-1989 and, unfortunately for the 1st respondent industry, Thirumangalam was one such area. On account, of this, the TNEB refused to grant the backward area concession of 15% in the tariff for a period of five years. The Government issued another Government Order in G.O. Ms. No. 1808 (PW), dated 28-9-1989, extending concessional rates of electricity charges for a period of five years only to those industries which had been set up before 3-5-1989. Since the petitioner had obtained supply only on 4-8-1989, the TNEB took the position that the industry was not entitled even under G.O.Ms. No. 1808 to have the concessional rates for the period of five years . Since the rales of concession and the tariff therefor was disputed, the industry filed a writ petition.
4. The learned single Judge held that since Thirumangalam was deleted from the backward area by G.O. Ms. No. 423, dated 7-7-1989, the petitioner industry, which had started getting supply from 4-8-1989 would not be governed by G.O. Ms. No. 423, dated 7-7-1989 and as such, would not be eligible for the backward area concession. In so far as the other Government Order G.O. Ms. No. 1808 dated 28-9-l989, which was relied upon by the petitioner, is concerned, the learned single Judge took the view that even that G.O. Ms. would not be applicable because, admittedly, the electric supply had commenced much after 3-5-1989, i.e., on 4-8-1989 or 7-8-1989 as the case may be. The learned Judge therefore, gave a finding on merits that if these two Government Orders are taken into consideration, then the petitioner industry could not get any concession. However, during the course of the pendency of the petition an affidavit came to be filed on behalf of the industry, wherein it was pointed out that the Government had passed two Government Orders bearing Nos. 499 Public Works (U2) Department, dated 26-3-1992 and G.O. Ms. No. 47 Energy, (A2) Dept. dated 11-3-1994 and by the these two Government Orders, the tariff concession as also the backward area concession were extended to two industries, viz. M/s. Sumangalam Steels Pvt. Ltd., and M/s. Ganapathy Smelters Ltd. It was observed by the learned Judge that since these two industries, though they were not governed by the aforementioned Government Orders, were given the concessions, the petitioner industry was also bound to be granted the said concession, as, otherwise, it would have been hostile discrimination against, the petitioner industry. On that basis the writ petition came to be allowed.
5. The learned Advocate General, who appears for the appellant assails the order of the learned singe Judge on the ground that there was nothing before the Hon’ble single Judge to hold that the petitioner industry viz. Sree Srinivasa Industries was identical with M/s. Sumangalam Steels Pvt. Ltd. or M/s. Ganapathy Smelters Ltd. The learned Advocate General argues that the considerations on which the concessions were granted to these two industries could have been different and it was not essential that those considerations were applicable even to the present industry in question viz. Sri Srinivasa Industries.
The learned Advocate General took us through the affidavit which was filed in the writ petition. The said affidavit is sworn in March, 1995 and there is merely a reference to the concession granted to the aforementioned two industries. However, beyond saying that Srinivasa Industries stood on the better footing inasmuch as it was given concession on 4-8-1989 nothing is stated in the said affidavit to suggest that the case of Srinivasa Industries was identical to that of M/ s. Sumangalam Steels Pvt. Ltd. or M/s. Ganapathy Smelters Ltd. On this basis, it is argued that merely because the Government had granted the concessions to some other industries, it would not mean that the present industry would also be a position to claim the said concessions. It was pointed out that there was nothing before the learned single Judge to arrive at a finding that Sree Srinivasa Industries was at par with and identical to the industries which were granted the concessions or that the circumstances under which the concessions were granted to the other two industries were applicable to the present industry also. The learned Advocate General however very fairly suggested that instead of straight away allowing the writ petition, it would have been better had the matter been referred to the Government for deciding as to whether the present industry also was entitled to the concessions.
6. The learned counsel for the 1st respondent industry herein very strenuously tried to contended that there were other Government Orders on record which suggested that even after the concerned dates the concessions were given to the various industries, which were industries using High Court Tension electricity. However, the learned Senior counsel was not in a position to show that the circumstances which prevailed for the grant of concessions would be applicable on all fours to the present industry. In our opinion, merely because the concessions were granted to the two industries, the learned single Judge could not have straight away proceeded to grant the same concessions to the present industry viz. Sree Srinivasa Industries, particularly because there was no factual data available with the learned single Judge to justify the grant of concession. It may be that those two industries might have been granted concessions on some different considerations. We would not go into that because it is not our province while dealing with this appeal. It may be that those circumstances may also be available to the petitioner industry viz. Sree Srinivasa Industries, but the relief which was granted by the learned single Judge could not have been granted unless there was some data available before the Court, which would have entitled Sree Srinivasa Industries for the concessions. We would therefore set aside the order in so far as it relates to the direct ions given. Instead, we would direct that Sree Srinivasa Industries would make a representation before the concerned authorities within one month from today, which representation would be decided upon one way or the other, within three months therefrom We have no doubt that if Sree Srinivasa Industries is able to canvass its case and is able to show that the facts pertaining to the concession are similar or identical with those applicable to M/s. Sumangalam Steels Pvt. Ltd and M/s. Ganapathy Smelters, the Government would consider the representations favourably without showing any discriminatory attitude. The said representation shall be decided within the time frame directed by us, without any default. The Advocate General assures us that it shall be so done. With these observations we dispose of the appeal without any costs. In the mean time there shall be a status quo as regards the payment. The status quo shall come to an end at the end of five months from today.