Eldho Ealias v. Kerala State Electricity Board & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 27TH DAY OF JULY 2016/5TH SRAVANA, 1938** ## **W.A.No. 1362 of 2016 () IN W.P.(C).6344/2013** ## **-------------------------------------------** ## **W.P.(C).NO. 6344/2013 of HIGH COURT OF KERALA DATED 24-05-2016** **APPELLANT(S)/PETITIONER: ----------------------------------------** **ELDHO EALIAS, S/O. K.A ELAIS, KIZHAKADATHU, THENGODE P.O., ERNAKULAM 682 030.** ## **BY ADVS.SRI.C.K.KARUNAKARAN SRI.JOPHY POTHEN KANDANKARY** **RESPONDENT(S):** - **------------------------** **1. KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695 004.** **2. ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD LTD, ERNAKULAM 682 018.** **3. DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD LTD, ERNAKULAM-682 018** **4. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD LTD, ERNAKULAM 682 018.** **5. KERALA STATE ELECTRICITY REGULATORY COMMISSION, KPFC BHAVAN, C.V. RAMAN PILLAI ROAD, VELLAYAMBALAM, THIRUVANANTHAPURAM 695 101.** - **R1 - R4 BY ADV.SRI.S.SHARAN R5 BY SRI.S.SUJIN, SC, ELECTRICITY REGULATORY COMMISSION** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.A.No. 1362 of 2016 () IN W.P.(C).6344/2013** **--------------------------------------------------------------** ## **APPENDIX** ## **APPELLANT'S ANNEXURES** **ANNEXURE A1 : TRUE COPY OF JUDGMENT DATED 27.05.2016 IN WPC NO.3951 OF 2013.** **RESPONDENT'S ANNEXURES NIL** **//True Copy//** **P.A. To Judge** **Bb** **“CR”** ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ. -----------------------------------------W.A.No.1362 of 2016 -----------------------------------------Dated this the 27[th] July, 2016** ## **J U D G M E N T** ## Anil K. Narendran,J. This Writ Appeal arises out of the judgment of the learned Single Judge of this Court dated 24.05.2016 in W.P.(C)No.6344 of 2013. The said Writ Petition was filed mainly seeking a writ of certiorari to quash Ext.P2 to the extent it demands supervision and transmission part development charges on per KVA basis; and to declare that the demand for development charges and per KVA transmission part development charges by respondents 1 to 4 is illegal and unsustainable. 2. The learned Single Judge by the judgment dated 24.05.2016 dismissed the Writ Petition, holding that, in view of the law laid down by a Division Bench of this Court in the judgment dated 30.06.2014 in W.A.No.990 of 2013 the appellant herein is not entitled for any directions sought for in the Writ Petition. Para.2 of the common judgment in W.P.(C).No.6344 of 2013 and connected case reads as follows; W.A.No.1362 of 2016 : 2 : “ **2.** Learned counsel for the respondent/Electricity Board submits that the matter is covered by the judgment of a Division Bench of this Court in W.A.No.990/2013 dated 30.06.2014. By the said judgment, the Division Bench had set aside the judgment of the learned Single Judge and observed that the levy and collection of transmission side development charges are valid. The operative portion of the said judgment in paragraph 26 reads as under: “For all these reasons, we are unable to sustain the conclusion of the learned Single Judge that the appellants are not entitled to realise transmission side development charges. In that view of the matter we dispose of these appeals setting aside the judgment of the learned Single Judge to the extent levy and collection of transmission side development charges are held illegal. Those among the appellants who have not so far paid the amounts demanded by the Board, are allowed two months time from the date of receipt of a copy of this judgment to pay the amounts due from them.” Having regard to the aforesaid law laid down by the Division Bench, I do not think that the petitioners in these cases are entitled for any direction, as sought for in the writ petitions. Hence these writ petitions are dismissed.” 3. Feeling aggrieved by the judgment of the learned Single Judge in W.P.(C)No.6344 of 2013, the appellant is before W.A.No.1362 of 2016 : 3 : us in this Writ Appeal. 4. We heard the arguments of the learned counsel for the appellant and also the learned Senior Counsel for the Kerala State Electricity Board, for the respondents. 5. Mr.C.K.Karunakaran, the learned counsel for the appellant, would point out that vide Annexure A1 judgment dated 27.05.2016 the very same learned Judge disposed of W.P.(C). No.3951 of 2013 directing the petitioner therein to challenge a similar demand made by the Board before the Consumer Grievance Redressal Forum (hereinafter referred to as 'the CGRF'). The petitioner therein was also granted one month's time to approach the CGRF and it was made clear that the liability to pay the demand made in terms of the demand notice shall be subject to the result of the orders to be passed by the CGRF. However, a similar course was not adopted in the case of the appellant. 6. Per contra, Mr.P.Santhalingam, the learned Senior Counsel for the respondent Board, would contend that the issue raised in the Writ Petition was squarely covered against the W.A.No.1362 of 2016 : 4 : appellant as per the judgment of this Court dated 30.06.2014 in W.A.No.990 of 2013 and as such, as held by the learned Single Judge, the appellant is not entitled for any of the reliefs sought for in the Writ Petition. 7. The pleadings and materials on record would show that, the appellant submitted Ext.P1 application dated 28.11.2012, through the 2[nd] respondent, for power allocation for his building, namely, 'Elias Square', Palarivattom, Kochi. Ext.P1 application was for a connected load of 293KVA and a contract demand of 250KVA. The 4[th] respondent as per Ext.P2 estimated a sum of Rs.8,98,501/- for installation of 315KVA transformer, one 125KVA DG Set, one 200 KVA DG Set and connected electrics at the premises, with a connected load of 221KW+38HP+13KVA. The appellant was directed to remit Rs.71,682/- towards supervision charges and to get the works executed by a licensed contractor, under the supervision of Board officials after obtaining necessary approval. The appellant was also directed to remit Rs.3,37,500/- towards transmission cost of supply. 8. Contending that, the demand made in Ext.P2 is W.A.No.1362 of 2016 : 5 : against Ext.P3 order of the 5[th] respondent in OP No.13 dated 16.11.2009, the appellant has approached this Court in W.P.(C). No.6344 of 2013 seeking various reliefs. Relying on Ext.P4 communication dated 27.04.2011 of the State Public Information Officer in the office of the 5[th] respondent, the appellant contended that Ext.P3 order of the 5[th] respondent is still subsisting and as such, the demand made by the 4[th] respondent in Ext.P2 cannot be sustained. In Ext.P4 communication of the State Public Information Officer it has been stated that the 5[th] respondent has not issued any order suspending Ext.P3 order. 9. The appellant has also relied on Ext.P5 interim order of this Court dated 23.01.2013 in W.P.(C)No.2275 of 2013, in which the Board was directed to provide electric connection to the petitioner therein, without insisting on payment of proportionate cost of development charges on transmission side, subject to the condition that the petitioner therein complies with all other requisite formalities and remit the amount otherwise demanded at the earliest. The appellant has also been granted with a similar order in W.P.(C)No.6344 of 2013. W.A.No.1362 of 2016 : 6 : 10. During the pendency of the Writ Petition, the legality of similar demand made by the KSEB levying transmission side development charges, non-refundable advance, etc. came up for consideration before a Division Bench of this Court in which one among us [AKN (J)] was a member. W.A.No.900 of 2013 and connected cases (including W.A.No.990 of 2013 referred to in the impugned judgment of the learned Single Judge) arise out of a common judgment of the learned Single Judge dated 22.11.2012, in which it was held that the levy of transmission side development charges and the demand for non-refundable advance impugned in the writ petitions were illegal and on that basis, the learned Single Judge ordered that the amounts realised from the writ petitioners therein should be refunded to them with 6% simple interest. 11. The common issue raised in W.A.No.900 of 2013 and connected cases was regarding the legality of the levy of transmission side development charges by the Board, allegedly without obtaining the approval of the 5[th] respondent. The validity of the demand made by the Board for non-refundable advance W.A.No.1362 of 2016 : 7 : from the consumers was also under challenge. As discernible from Para.5 of the judgment, before the Division Bench arguments were advanced only against the findings of the learned Single Judge regarding the legality of the levy of transmission side development charges. Therefore, the Division Bench confined the examination only on the first issue, without in any manner disturbing the findings of the learned Single Judge in so far as the second issue is concerned. 12. Before the Division Bench, it was argued on behalf of the Board that, the levy has the approval of the Kerala State Electricity Regulatory Commission (hereinafter referred to as 'the Commission') and they have also relied on the order dated 23.05.2011 passed by the Commission approving the cost data for transmission work. Per contra, the respondents therein (the consumers) contended that, by the order dated 16.11.2009 the Commission had rejected OP No.13 dated 14.05.2009, wherein the Board sought approval of its proposal to introduce development charges for new investments from 2008-09. They also contended that the order dated 23.05.2011 of the W.A.No.1362 of 2016 : 8 : Commission relied on by the Board has no relevance as far as they are concerned because, according to them, it has application only to electric plants and lines above 11KV level and that their plants and lines are below 11KV. Since the scope of the dispute involved in those appeals has thus narrowed down to the above controversy, all that the Division Bench examined was whether the levy of transmission side development charges, which was impugned in those proceedings, has the approval of the Commission as provided under the Electricity Act, the Supply Code and the Terms and Conditions of Supply. 13. With reference to the order dated 23.05.2011 of the Commission (in TP-87/2011), the Division Bench observed that, although the said order of the Commission makes reference to the standard estimate rates for work above 11KV level, which was prepared by the Board on the directions of the Commission, analysis of the Commission and the order passed by it shows that the scope and applicability of the methodology approved by the Commission is not confined to works above 11KV level. When, irrespective of whether the supply is above 11KV level or not, the W.A.No.1362 of 2016 : 9 : transmission side developmental works for supply of energy and the expenses thereof incurred by the Board are in no way different, absolving consumers availing of supply below 11KV would have been without any rational basis and such an irrational classification would not stand judicial scrutiny. Therefore, the Division Bench observed that, there is no reason to hold that the Commission has excluded the consumers availing of supply below 11KV level from the liability to pay development charges on the transmission side. (Paras.20 and 21 of the judgment) 14. Similarly, with reference to the order dated 16.11.2009 of the Commission, the Division Bench observed that, in the said order, while declining the proposal of the Board, the Commission has made it clear that a distribution licensee is entitled to charge the expenses incurred for providing supply specifically to a consumer as approved by the Commission. Moreover, by the subsequent order dated 23.05.2011, the Commission has approved recovery of transmission side development charges in so far as consumers above 11KV are concerned, which order does not restrict its scope and W.A.No.1362 of 2016 : 10 : applicability only to consumers availing supply above 11KV and it applies to others also. Therefore, the Division Bench held that, the order of the Commission dated 16.11.2009 cannot be relied on to defeat the claim of the Board. (Paras.22 and 23 of the judgment) 15. Relying on the counter affidavit filed by the Secretary of the Commission in W.P.(C)No.20515 of 2011, it was argued before the Division Bench that, the Commission has not authorised the Board to collect any development charges for supply of electricity to new consumers. Along with the said counter affidavit, the Commission has also produced its interim order dated 07.10.2011 in O.P.No.22/2011, wherein the Board was directed not to collect development charges/sub station enhancement expenditure, etc. The Division Bench noticed that, in the affidavit, apart from referring to the order dated 16.11.2009 in OP No.13, the Commission has not made any reference to its subsequent order dated 23.05.2011 in TP87/2011. As discrnible from the judgment, even during the course of hearing, the Division Bench could not get any clear W.A.No.1362 of 2016 : 11 : answer from the Commission on the scope of its order dated 23.05.2011, which was passed long after order dated 16.11.2009 was passed. The Division Bench noticed that, in the affidavit, apart from referring to the order dated 16.11.2009, the Commission has not made any reference to its order dated 23.05.2011. Therefore, in the absence of any reference or explanation regarding the order dated 23.05.2011 in TP-87/2011, the Division Bench expressed its inability to act upon the affidavit by the Commission and to hold that the said affidavit disproved the case of the Board that it is entitled to realise the transmission side development charges. 16. Therefore, the Division Bench disposed of W.A.No.900 of 2013 and connected cases, setting aside the common judgment dated 22.11.2012 of the learned Single Judge, to the extent the levy and collection of transmission side development charges are held illegal. Those among the respondents therein, who have not paid the amounts demanded by the Board, were allowed two months' time from the date of receipt of a copy of that judgment to pay the amounts due from them. W.A.No.1362 of 2016 : 12 : 17. In view of the law laid down by the Division Bench in its judgment dated 30.06.2014 in W.A.No.900 of 2013 and connected cases, the consumers like the appellant herein, who availed power supply below 11KV level are also liable to pay development charges on the transmission side. In Ground 2.2 of the memorandum of appeal the appellant has admitted that, in view of the Division Bench decision in W.A.No.900 of 2013 and connected cases, the development charges on the transmission side would be applicable even in cases where the consumer applied for power supply below 11KV level. 18. In the Writ Petition, the appellant contended that the demand made in Ext.P2 notice is against Ext.P3 order of the Commission dated 16.11.2009. The appellant has also relied on Ext.P4 communication dated 27.04.2011 of the State Public Information Officer in the office of the Commission, in which it has been stated that the Commission has not issued any order suspending Ext.P3 order. The aforesaid contention is no more available to the appellant, in view of the specific finding in the judgment of the Division Bench in W.A.No.900 of 2013 and W.A.No.1362 of 2016 : 13 : connected cases that, Ext.P3 order of the Commission dated 16.11.2009 in OP No.13 cannot be relied on to defeat the claim of the Board, inasmuch as, by the subsequent order dated 23.05.2011 in TP-87/2011, the Commission has approved recovery of transmission side development charges in so far as consumers above 11KV are concerned, which order does not restrict its scope and applicability only to consumers availing supply above 11KV and it applies to others also. 19. The learned counsel for the appellant would contend that, in similar cases the Electricity Ombudsman has struck down the demand made by the Board similar to the one made in Ext.P2 towards cost on transmission side and has directed that the demand, if any, has to be made only in compliance with the guidelines laid down by the Commission in its order in TP87/2011. We are unable to agree with the said contention. Once the levy and collection of transmission side development charges from the consumers who availed power supply below 11KV level is upheld by the Division Bench of this Court in its judgment in W.A.No.900 of 2013 and connected cases, the principles of W.A.No.1362 of 2016 : 14 : judicial discipline require that the law laid down by this Court is followed unreservedly by the subordinate authorities. [See: Union of India v. Kamlakshi Finance Corporation Ltd. - 1992 Supp. (1) SCC 443] Therefore, neither the CGRF nor the Electricity Ombudsman can sit in appeal over the law declared by this Court in the said decision and hold that the Board is not entitled to recover transmission side development charges in so far as the consumers availing supply upto 11KV are concerned. 20. Relying on the order of the Division Bench of this Court dated 24.07.2015 in R.P.No.442 of 2015 in W.A.No.1876 of 2013 in which one among us [AKN (J)] was a member, the learned counsel for the appellant would contend that, the demand made towards cost on the transmission side could be challenged before CGRF/Electricity Ombudsman. 21. As discerible from the order in R.P.No.442 of 2015, after referring to the order of the Commission dated 23.05.2011 in TP-87/2011, it was argued before the Division Bench that, the Commission has allowed parties who have dispute on the quantification of both the amounts due and the quantum of work W.A.No.1362 of 2016 : 15 : to have remedy before the CGRF. The learned counsel sought for a clarification to the effect that, irrespective of the findings contained in the judgment in W.A.No.900 of 2013 and connected cases, it would be open to the review petitioner to seek their remedies on the above aspects before the CGRF. After considering the said submission, the Division Bench has disposed of the review petition by its order dated 24.07.2015, clarifying that the findings in the judgment in W.A.No.900 of 2013 and connected cases shall not stand in the way of the review petitioner in approaching the CGRF, if they have any grievance regarding the quantum of work and the rates on the basis of which the demand is issued. The relevant paragraphs of the order date 24.07.2015 in R.P.No.442 of 2015 in W.A.No.1876 of 2013 read thus; “ **3.** Reading of Ext.R1(d) order of the Kerala State Electricity Regulatory Commission, vide paragraph 5.4 thereof, shows that the Commission has clarified that any dispute on issues relating to rates, quantum of work etc., as the one raised by the counsel for the petitioner, shall be subject to review by CGRF and Ombudsman. In that view of the matter, we feel that the petitioner is justified in the prayer made. W.A.No.1362 of 2016 : 16 : In the aforesaid circumstances, this review petition is disposed of clarifying that the findings in the judgment of this Court shall not stand in the way of the petitioner in approaching the CGRF if they have a grievance regarding the quantum of work and the rates on the basis of which Exts.P14 and P16 are issued.” 22. When the liability of the consumers availing supply upto 11KV level for payment of transmission side development charges is no more _res integra_ in view of the law declared by this Court in the judgment in W.A.No.900 of 2013 and connected cases, the said issue cannot be raised in a complaint/application filed before the CGRF. Similarly, when the grievance that could be raised before the CGRF is limited to any grievance regarding the quantum of work and the rates based on which which the demand is made in Ext.P2, the appellant is not legally entitled for stay of the entire demand made in the said demand notice. In that view of the matter, the appellant is not entitled for an order of stay of the entire demand in Ext.P2, as granted in the case of another consumer, vide Annexure A1 judgment of the learned Single Judge. 23. If the appellant is having any grievance regarding the W.A.No.1362 of 2016 : 17 : quantum of work and the rates on the basis of which the demand is made in Ext.P2, it is for the appellant to approach the CGRF, Kochi with an appropriate complaint/application, within a period of one month from the date of receipt of a certified copy of this judgment, in which event the CGRF shall consider the said grievance and pass appropriate orders thereon, strictly in accordance with law, taking note of the law laid down by the Division Bench of this Court in the judgment in W.A.No.900 of 2013 and connected cases and also the observations contained in this judgment. 24. The CGRF shall pass appropriate orders as directed above, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of such petition. The liability of the petitioner to pay the demand made in Ext.P2, to the limited extent it is under challenge in the complaint/application filed before the CGRF, shall be subject to the orders to be passed by the CGRF. In the result, this writ appeal is disposed of, modifying the judgment of the learned Single Judge in W.P.(C).No.6344 of 2013 W.A.No.1362 of 2016 : 18 : to the extent, indicated as above. No order as to costs. Sd/- **P.R. RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** Bb/29.07.2016 _[True copy]_ _P.A to Judge_