JUDGMENT R.M. Chhaya, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 05.01.2010 passed by respondent No. 2-authority and has also prayed for directing respondent No. 2 -authority to grant exemption certificate for five years from 24.09.2007 as per Section 3(2)(vii) of the "Bombay Electricity Duty Act, 1958" ('the Act' for short), and has also prayed for directing respondent No. 3-"Paschim Gujarat Vij Company Limited" ('Electricity Company' for short) to include the units consumed for factory lighting for the purpose of calculating the electricity duty and for the purpose of exemption from the same and has also further prayed for directing respondent No. 3-Company to issue fresh statement showing the separate electric consumption from November 2008 to June 2009 and calculation of exempted amount of electricity duty. 2. The facts, which can be culled out from the record of the petition are as under:- 2.1 The petitioner is a consumer of respondent No. 3-Electricity Company and is having high tension electricity connection bearing No. 31097. The petitioner is a new industry and it commenced its manufacturing operation on and with effect from 24.09.2007. 2.2 It is the case of the petitioner that the petitioner ought to have been granted exemption certificate from 24.09.2007 and not from 11.10.2008 as far as motive power is concerned. It is the case of the petitioner that as per the provisions of Section 3(2)(vii) of the Act, the petitioner is entitled to exemption from payment of electricity duty as it is a new industrial undertaking, for a period of five years from the date on which, it begun to manufacture or produce the goods for the first time. 2.3 It further reveals that two separate meters for factory lighting (industrial use) as well as for office lighting (non-industrial use) were installed on 11.10.2008 and 25.10.2008 respectively. 2.4 That on application being made by the petitioner, the petitioner has been granted provisional certificate dated 22.05.2009 (at Annexure: A), whereby the authority has granted exemption under Section 3(2)(vii) of the Act from 11.10.2008 to 24.10.2008 for motive powers and from 25.10.2008 to 27.10.2012 on their H.T. Connection No. 31097 for motive power and industrial lighting only. 2.4 That on application being made by the petitioner, the petitioner has been granted provisional certificate dated 22.05.2009 (at Annexure: A), whereby the authority has granted exemption under Section 3(2)(vii) of the Act from 11.10.2008 to 24.10.2008 for motive powers and from 25.10.2008 to 27.10.2012 on their H.T. Connection No. 31097 for motive power and industrial lighting only. 2.5 It further appears that after such certificate was granted, the petitioner approached respondent No. 2-authority by way of application dated 03.08.2009 and in reply to the same after considering letter dated 27.10.2009 written by respondent No. 3-Company, respondent No. 2-authority has passed the impugned order dated 05.01.2010, whereby respondent No. 2-authority has observed that the benefit of exemption which is granted, is as per letter dated 24.12.2008. It further observed that the petitioner is not entitled for the benefits of exemption as provided under Rule 10(2) of the Act. The said order is impugned in the present petition. 2.6 In response to the notice issued by this Court, respondent No. 2-authority has filed an affidavit-in-reply, wherein it is stated as under:- 7. I say that the answering respondent received application dated 4th April 2008 from the petitioner for grant of exemption certificate as per section 3(2)(vii) of the Act. In pursuance to the application given by the petitioner, the answering respondent vide letter dated 10th April 2008 called upon the petitioner to furnish the detailed stated therein like exact date of commencement of production of goods, month wise electricity consumption statement for motive power and industrial lighting and other lights etc. It was further requested to install separate meter for non industrial lighting and other non industrial purpose immediately. A copy of the letter dated 10th April 2008 is annexed hereto and marked Annexure-R1. I submit that as per Rule 10 of the Bombay Electricity Duty (Gujarat) Rules, petitioner is required to install separate meters for industrial purpose and non industrial purpose. A copy of the extract of Rule 10 and Rule 11 of the Bombay Electricity Duty (Gujarat) Rules is annexed hereto and marked Annexure-R2. 8. I say that the answering respondent has also called information from the respondent No. 3 Company with respect to H.T. No. 31097. The Executive Engineer of the respondent No. 3 company vide letter dated 24th December 2008 supplied information to the answering respondent with respect to H. T. No. 31097 of the petitioner. 8. I say that the answering respondent has also called information from the respondent No. 3 Company with respect to H.T. No. 31097. The Executive Engineer of the respondent No. 3 company vide letter dated 24th December 2008 supplied information to the answering respondent with respect to H. T. No. 31097 of the petitioner. As per the said letter, the petitioner had installed separate meters for industrial and non-industrial purpose as under:- Sr. No. Purpose Meter No. Date of Installation of meter 1. Motive Power (Industrial) 06772446 L & T (HT meter) 24.09.2007 2. Factory lighting (Industrial) 210411 TTL (Havells) 11/10/08 3. Office lighting (non industrial) 115623 (Maxwell) 25.10.2008 A copy of the said letter dated 24th December 2005 is annexed hereto and marked Annexure-R3. The information for meter sealing performa for factory lighting and office lighting was provided by the petitioner vide letter dated 10th December 2008. A copy of the letter dated 10th December 2008 is annexed hereto and marked Annexure-R4. After considering the communication vide letter dated 24.12.2008 from respondent No. 3 marked Annexure-R3 and above referred information, the answering respondent granted exemption from payment of electricity duty to the petitioner on their HT No. 31097 from the period from 11th October 2008 to 24th October 2008 for Motive power only and from 25th October 2008 to 22nd October 2012 for Motive power and industrial lighting only. The said certificate was issued by the answering respondent as per the provisions of section 3(2)(vii) of the Bombay Electricity Duty Act, 1958 read with Rule 10(2) and Rule 11 of the Bombay Electricity Duty (Gujarat) Act, 1958. 9. I say that in pursuance to the representation made by the petitioner dated 3rd June 2009, the answering respondent subsequently also called information from the respondent No. 3 company vide letter dated 16th June 2009. Accordingly, the respondent No. 3 company furnished information vide letters dated 22nd June 2009 and 27th October 2009. A copy of the said letters dated 22nd June 2009 and 27th October 2009 is annexed hereto and marked Annexure-R5 & R6 respectively. As per the information given by the respondent No. 3 Company dated 27th October 2009, petitioner's consumption during October 2007 to September 2008 for factory lighting and office lighting found 'Nil'. The details as per letter dated 22.06.2009 are as under:- Sr. As per the information given by the respondent No. 3 Company dated 27th October 2009, petitioner's consumption during October 2007 to September 2008 for factory lighting and office lighting found 'Nil'. The details as per letter dated 22.06.2009 are as under:- Sr. No. Purpose Industrial/Non-Industrial Meter No. Date of Installation of meters Date of sealing Consumption Charges 1. Motive Power 2. Factory lighting (Industrial) 210411 11/04/08 11/10/08 3. Office lighting (non-industrial) 347812 11/04/08 11/10/08 (it was non working and therefore, not sealed. 15 115623 (Maxwell) 12/10/08 25/10/08 15 4. Residence lighting 5. Others 10. I submit that as per section 3(2)(vii) of the Bombay Electricity Duty Act, 1958 exemption from payment of electricity duty can be granted for motive power and industrial lighting in respect of premises used by a new industrial undertaking for industrial purpose, subject to such terms and conditions, for a period of five years from the date on which such industrial undertakings begins to manufacture or produce goods for the first time, Section 3(2)(vii) reads as under:- Section 3(2)(vii) of the Act reads as under:- 3(2) Electricity duty shall not be leviable on the units of energy consumed-(i)-(vi) (vii) for motive power and lighting in respect of premises used by a new industrial undertaking for industrial purpose, subject to such terms and conditions as may be prescribed for a period of five years from the date on which such industrial undertaking begins to manufacture or produce goods for the first time: Provided that no new industrial undertaking shall be entitled for exemption from payment of electricity duty under this clause, unless it has obtained a certificate regarding eligibility for such exemption in prescribed form by making an application therefore in such form, within such period and to such offer as may be prescribed I submit that as per the provisions of section 3(2)(vii) period of eligibility for exemption from payment of electricity duty for 5 years should be considered from the date of commencement of production, but final eligibility period may reduce considering the provisions of Rule 10(2) and Rule-11 of the Bombay Electricity Duty (Gujarat) Rules, 1986-Marked as Annexure. R-2. R-2. In the present case, as per the information received from the respondent No. 3 company, the petitioner started manufacturing its products from 23rd October 2007 and installed separate matter for industrial lighting i.e. factory lighting on 11.10.2008, and non industrial lighting i.e. office lighting on 25.10.2008, which record consumption for the said purposes as per communication dated 24.12.2008 from respondent No. 3 marked as Annexure: R-3 and therefore, the answering respondent issued exemption certificate from 11th October 2008 to 24th October 2008 for motive power only and from 25th October 2008 to 22nd October 2012 for motive power and industrial lighting is in order. I submit that the said certificate is issued in consonance with the statutory provisions. In the circumstances stated above, I submit that there is no merit in the present petition and the Hon'ble Court be pleased to dismiss the petition. What is stated hereinabove is true to my knowledge bases on the records available with me and information and belief and I believe the same to be true. All Annexures are true copies of their respective originals. 3. It may be noted that the petitioner has also filed affidavit-in-rejoinder denying the contentions raised by respondent No. 2 in his affidavit-in-reply. 4. Heard Mr. B.Y. Mankad, learned counsel for the petitioner, Mr. Vishal Patel, learned Assistant Government Pleader for respondent Nos. 1 and 2 and Mr. Premal Joshi, learned counsel for respondent No. 3-authority. 5. Learned counsel for the petitioner has taken this Court though the factual matrix and has also invited attention to the provisions of Section 3(2)(vii) of the Act as well as the relevant Rules, more particularly, Rules-10 & 11 of the Bombay Electricity Duty (Gujarat) Rules, 1986 ('the Rules' for short). 6. Learned counsel for the petitioner has contended that as per the provisions of Section 3(2)(vii) of the Act, the petitioner being a new industrial undertaking would be entitled to exemption from the electricity duty for a period of five years from the date on which it begun to manufacture or produce the goods. Learned counsel for the petitioner submitted that, even according to respondent No. 2, meter was installed for the motive power and hence, the petitioner would be entitled to exemption from such date i.e. 24.09.2007. 7. Learned counsel for the petitioner submitted that, even according to respondent No. 2, meter was installed for the motive power and hence, the petitioner would be entitled to exemption from such date i.e. 24.09.2007. 7. Learned counsel for the petitioner further contended that relying upon the statements, which are produced on record by the respondents, it further indicate that even as per respondent No. 3-Company, the consumption of electricity duty is shown from October 2007, and on this count also, the petitioner is entitled for exemption from the date on which the petitioner started manufacturing goods. Learned counsel for the petitioner therefore, contended that the impugned order dated 05.01.2010 is erroneous and the same deserves to be quashed and set aside, and appropriate order for directing respondent No. 2 to give exemption from 24.09.2007 is required to be passed. 8. Learned counsel for the petitioner further contended that while passing the impugned order dated 05.01.2010, respondent No. 2-authority has not considered the evidence on record and has misinterpreted the provisions of the Act as well the Rules and therefore, the impugned order is unjust, arbitrary and improper. 9. Learned counsel for the petitioner further contended that what is stated by respondent No. 2 in his reply before this Court is not found in the impugned order and therefore, the respondents cannot be permitted to substitute the reasons for passing the impugned order by way of affidavit before this Court under Article 226 of the Constitution of India. It was therefore, contended that the petition deserves to be allowed at this stage. 10. Per contra, Mr. Vishal Patel, learned Assistant Government Pleader for respondent Nos. 1 and 2, and Mr. Premal Joshi, learned counsel for respondent No. 3-Company have supported the impugned order. 11. Learned Assistant Government Pleader as well as the learned counsel for respondent No. 3-Electricity Company have contended that as provided under Rule-10 of the Rules, installation of separate meter for factory lighting (industrial use) as well as for the office lighting (non-industrial use) is necessary and unless and until separate meters are there, the petitioner is not entitled to any exemption under Section 3(2)(vii)of the Act. It was further contended that even as per Rules 10(2) and 11, the petitioner would be entitled for exemption only from the date of installation of separate meters. It was further contended that even as per Rules 10(2) and 11, the petitioner would be entitled for exemption only from the date of installation of separate meters. It was further contended that in light of the fact that the petitioner did not install separate meter on 24.09.2007, the petitioner is not entitled to claim any exemption as envisaged under Section 3(2)(vii) of the Act. 12. From the impugned order as well the submissions made by learned counsel for the parties, it appears that even according to the respondents, the petitioner started manufacturing from 23.10.2007. It further appears from the affidavit-in-reply filed by respondent No. 2 that even according to it, the date on which the petitioner started manufacturing its products is 23.10.2007. It is also an admitted position that separate meter for factory lighting (industrial use) came to be installed on 11.10.2008 and for office lighting (non-industrial use) on 25.10.2008. 13. The contentions raised by learned counsel for the petitioner to the effect that the impugned order does not give any reason which are forming part of the affidavit, is quite evident from the order and affidavit, which is filed by respondent No. 2. 14. From the impugned order, it is clear that the justification, which is given by way of affidavit is not found at all. It appears that while passing the impugned order dated 05.01.2010, respondent No. 2 has considered the information, which was given by respondent No. 3. Provisions for granting exemption is prescribed in Section 3(2)(vii) of the Act, whereas Rule-10 of the Act provides for separate meters. Similarly, Rule-11 of the Act provides to get exemption under Section 3(2) and 3(2-A). 15. From bare reading of the impugned order, it transpires that respondent No. 2-authority has considered the aspect that the consumption for industrial and non-industrial purposes are not separately noted by respondent No. 3-Company, the petitioner is not entitled to exemption under Section 3(2)(vii) of the Act. Similarly, respondent No. 2-authority has relied upon sub Rule-2 of Rule-10 of the Act, which provides for levy of electricity duty and how it is to be leaved for, where separate meters are not provided for. 16. It further appears from the affidavit itself that while passing the impugned order, respondent No. 2-authority has only considered the information, which he derived from respondent No. 3 -Electricity Company. 16. It further appears from the affidavit itself that while passing the impugned order, respondent No. 2-authority has only considered the information, which he derived from respondent No. 3 -Electricity Company. The petitioner has never been informed about the fact that the petitioner is not entitled to exemption because no separate meters were installed on the date from which the petitioner started manufacturing its products which even according to respondent No. 2 is 23.10.2007. 17. In light of the aforesaid facts, before passing impugned order, respondent No. 2-authority has not given opportunity of being heard to the petitioner. It appears that the same has affected the legal right of the petitioner which he can avail under the provisions of Section 3(2)(vii) of the Act. It is to be noted that respondent No. 2 cannot substitute any reason, which is not found in the impugned order by way of filing an affidavit before this Court in this petition under Article 226 of the Constitution of India in order to justify such an order. 18. In light of the aforesaid, the impugned order dated 05.01.2010 is quashed and set aside and the following directions are issued. (a) Impugned order dated 05.01.2010 is quashed. (b) Respondent No. 2-authority shall give opportunity of hearing to the petitioner and after considering the submissions that may be made by the petitioner, pass appropriate order in accordance with law and accordingly, issue a fresh certificate considering the provisions of Section 3(2)(vii) of the Act as well as the relevant Rules. (c) Respondent No. 2-authority shall decide the issue afresh on its own merits without being influenced by the earlier order as well as any observations made in this judgment. (d) Respondent No. 2-authority shall carry out this exercise as expeditiously as possible latest by 31.07.2014. 19. In light of the aforesaid, present petition is partly allowed. Rule is made absolute to the aforesaid extent only. Petition Partly Allowed