Hamsaveni Carbides v. Kerala State Electricity Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 30TH DAY OF NOVEMBER 2012/9TH AGRAHAYANA 1934** ## **WP(C).No. 6134 of 2009 (J)** ## **---------------------------** **PETITIONER(S): --------------------------** **M/S.HAMSAVENI CARBIDES, NEW INDUSTRIAL DEVELOPMENT AREA, KANJIKODE, PALAKKAD, REPRESENTED BY ITS MANAGER.** **BY ADVS.SRI.PKM.HASSAN, SRI.J.JULIAN XAVIER, SRI.FIROZ K.ROBIN, SRI.RAJU JOSEPH.** ## **RESPONDENT(S):** **----------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.** ## **2. SPECIAL OFFICER (REVENUE),** - **KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.** **3. DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD, PALAKKAD.** **4. GOVERNMENT OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, POWER DEPARTMENT, THIRUVANANTHAPURAM.** **5. INDUSTRIES DEPARTMENT, REPRESENTED BY ITS SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** ## **WP(C).No. 6134 of 2009 (J)** ## **6. FULL TIME MEMBERS,** **KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.** **R1 TO R3 & R6 BY SRI.P.SANTHALINGAM, SENIOR SC, KSEB, ADV. SRI.S.SHARAN, SC, K.S.E. B. R4 & R5 BY GOVT. PLEADER MR.REJI JOSEPH.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-08-2011, THE COURT ON 30-11-2012 DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 6134 of 2009 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE LETTER DATED 28/09/2001 INTIMATING THE STOPPAGE OF PETITIONER'S FACTORY. EXT.P2 COPY OF THE REPORT DATED 10/10/2001 FILED BY THE ASSISTANT EXECUTIVE ENGINEER BEFORE THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PALAKKAD. EXT.P3 COPY OF THE BOARD ORDER DATED 30/08/2008 ISSUED BY THE 1ST RESPONDENT. EXT.P4 COPY OF THE REPRESENTATION DATED 29/11/2008 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5 COPY OF THE STATEMENT DATED 02/01/2009 ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, PALAKKAD. EXT.P6 COPY OF THE JUDGMENT DATED 09/01/2009 IN W.P.(C)NO. 36490/2008. EXT.P7 COPY OF THE LETTER DATED 15/01/2009 ISSUED BY THE 5TH RESPONDENT. EXT.P8 COPY OF THE DETAILS OF THE MINUTES WHICH WAS FORWARDED TO THE PETITIONER BY THE 5TH RESPONDENT. EXT.P9 COPY OF THE ORDER DATED 04/02/2009 ISSUED BY THE ELECTRICAL INSPECTORATE, PALAKKAD.** **EXT.P10 COPY OF THE NOTE SUBMITTED TO FULL TIME MEMBERS OF KSE BOARD BY THE 2ND RESPONDENT. EXT.P11 COPY OF THE LETTER DATED 03/02/2009 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P12 COPY OF THE COVERING LETTER DATED 04/02/2009 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P13 COPY OF THE LETTER DATED 04/02/2009 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXT.P14 COPY OF THE LETTER DATED 21/02/2009 ISSUED BY THE 3RD RESPONDENT.** **2/-.........** ## **WP(C).No. 6134 of 2009 (J)** **EXT.P15 COPY OF THE JUDGMENT DATED 28/03/2005 IN O.P. NO. 3506/1999. EXT.P15A COPY OF THE CHART. EXT.P16 COPY OF THE BOARD ORDER DATED 19/02/2009. EXT.P17 COPY OF THE ORDER DATED 24/05/2003 ISSUED BY THE 1ST RESPONDENT. EXT.P18 COPY OF THE CERTIFICATE ISSUED BY ONE MR.N. RAJASEKHARAN A CHARTERED ENGINEER AND APPROVED VALUER. EXT.P19 COPY OF THE CERTIFICATE DATED 02/03/2009. EXT.P20 COPY OF THE PHOTOGRAPHS OF THE INDUSTRIAL UNIT. EXT.P21 COPY OF THE LETTER DATED 02/03/2009 OF THE DISTRICT INDUSTRIES CENTRE, PALAKKAD.** ## **RESPONDENT'S ANNEXURES & EXHIBIT:-** **ANNEXURE R1A COPY OF THE BOARD ORDER (FM) NO.465/2009 DATED 19/02/2009. ANNEXURE R1B COPY OF THE LETTER DATED 17/02/2009 COMMUNICATED TO MEMBER, KSEB BY THE THIRD RESPONDENT. ANNEXURE R1C COPY OF THE ESTIMATE. ANNEXURE R1D COPY OF THE ROUGH SKETCH PREPARED BY THE ASSISTANT EXECUTIVE ENGINEER, KSEB, ELECTRICAL SUB DIVISION, KANJIKODU. ANNEXURE R1E COPY OF THE BOARD ORDER NO.676/2003 DATED 24/05/2003.** **ANNEXURE R1F COPY OF THE LETTER COMMUNICATION TO THE SECRETARY KSEB BY THE THIRD RESPONDENT DATED 17/01/2009. EXT.R1D COPY OF THE ORDER DATED 23/05/2011 IN PETITION NO.TP-87/2011 OF THE KERALA STATE REGULATORY COMMISSION, THIRUVANANTHAPURAM.** **ANNEXURE 7 COPY OF THE ORDER NO.1/66/94 DATED 08/01/2009 OF THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, PALAKKAD.** **3/-............** ## **WP(C).No. 6134 of 2009 (J)** |**ANNEXURE R8**|**COPY OF THE ACTUAL COST SHEET SHOWING THE DETAILS**| |---|---| ||**OF THE WORK EXECUTED BY THE ASST. EXECUTIVE**| ||**ENGINEER, KSEB, KANJIKODE.**| |**ANNEXURE R9**|**COPY OF THE SIMPLIFIED SCHEME OF THE 22 KV GASHA**| ||**FEEDER AFTER EXECUTION OF THE WORK SIGNED BY**| ||**KANJIKODE ASST. EXECUTIVE ENGINEER.**| |**ANNEXURE R10**|**COPY OF THE ACTUAL COST THAT WILL BE INCURRED FOR**| ||**PUTTING UP THE ABOVE ELECTRICAL PLANT.**| |**ANNEXURE R11**|**COPY OF THE DETAILS SHOWING THE ABOVE COST**| ||**INCURRED BY THE RESPONDENT BOARD FOR INSTALLING**| ||**THE ADDITIONAL TRANSFORMERS.**| |**ANNEXURE R12**|**COPY OF THE LETTER NO.HTB-5/551 DATED 20/04/2009**| ||**ISSUED BY THE SPL. OFFICER (REVENUE) KSEB,**| ||**THIRUVANANTHAPURAM.**| **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **P.N.RAVINDRAN, J. ----------------------------------------W.P.(C).No.6134 of 2009 ----------------------------------------Dated this the 30[th] day of November, 2012** ## **JUDGMENT** The petitioner, a partnership firm, has filed this writ petition challenging Ext.P14 letter dated 21.2.2009 issued by the Deputy Chief Engineer, Electrical Circle, Palakkad, and Ext.P16 order dated 19.2.2009 issued by the Kerala State Electricity Board (hereinafter referred to as the Board for short) and seeking a declaration that the petitioner is entitled to get reconnection of electricity supply in the light of Ext.P3 Board order without paying any amount towards cost of works on the distribution side. The petitioner also seeks a direction to the third respondent Deputy Chief Engineer to forthwith effect supply of electricity to the petitioner's industrial unit without insisting on payment of the amounts demanded in Ext.P14. The brief facts of the case are as follows: 2. The petitioner firm had established a small scale industrial unit at Kanjikode in Palakkad district to manufacture Calcium Carbide. Electricity connection to the petitioner's ## **W.P(C).No.6134 of 2009** -:2:- industrial unit was given on 28.10.1994 from the 22 KV “GASHA” feeder drawn from the 220 KV sub-station at Kanjikode. The contract demand was 500 KVA. The petitioner's industrial unit started commercial production on 30.1.1995. A major break down occurred in the petitioner's factory on 27.9.2001 and it was closed for repair works. This fact was communicated to the Assistant Executive Engineer, Electrical Major Section, Kanjikode, by Ext.P1 letter dated 28.9.2001 sent by the Manager of the petitioner's factory. In that letter the Assistant Executive Engineer was informed that the plant was shut down at 12 A.M. on 27.9.2001 due to a major break down, that the outer shell of the furnace has been damaged and more than two or three months' time will be taken to repair the furnace. In that letter the Manager of the petitioner's factory also requested the Assistant Executive Engineer to record the reading in the maximum demand meter (MD meter) and energy meter and to re-set the maximum demand meter to zero so as to enable the petitioner to claim proportionate rebate in the maximum demand charges. The Assistant Executive Engineer was also informed that before the plant is re-started he will be informed. 3. Upon receipt of Ext.P1 letter, the Assistant Executive **W.P(C).No.6134 of 2009** -:3:- Engineer inspected the petitioner's industrial unit and recorded the reading of the MD meter on 28.9.2001 and re-set the MD meter to zero. He thereafter sent Ext.P2 letter dated 10.10.2001 to the Executive Engineer, Electrical Division, Palakkad. The petitioner did not re-start operations in its industrial unit for quite some time. While matters stood thus, the State Government issued G.O. (Rt)No.35/2007/PD dated 24.2.2007 whereby, the Government waived minimum demand charges of electricity for the period during which industrial units stood closed, in order to facilitate closed industrial units to re-start operations. In that Government order it was stipulated that waiver of minimum demand charges of electricity during the period of closure in respect of closed industrial units will be available only if operations are re-started on or before 31.12.2008. Later, the Government issued an order dated 2.8.2008 extending the said benefit to industrial units which re-start operations before 31.12.2008. 4. The Board, at its meeting held on 18.8.2008 decided to adopt the aforesaid Government order for implementation, subject to certain conditions and thereafter issued Ext.P3 order dated 30.8.2008. Inter alia, it was stipulated therein that the benefit of the Government order dated 2.8.2008 will be available to those ## **W.P(C).No.6134 of 2009** ## -:4:- consumers whose service connection was dismantled, if they reopen on or before 31.12.2008. By that order the Board also decided to effect reconnection on remittance of 1/3[rd] of the arrears and interest and to allow a maximum of six instalments for payment of the balance amount, subject to the condition that the arrear instalments and monthly electricity charges shall be paid promptly. It was stipulated that in the event of failure, waiver of minimum demand/fixed charges for the period of closure will be withdrawn and the supply disconnected. Ext.P3 Board order dated 30.8.2008, is extracted below in full:- ## _KERALA STATE ELECTRICITY BOARD_ ## _**ABSTRACT**_ _Waiver of minimum demand charges/fixed charges for electricity in respect of all the closed LT/HT Industrial units and plantations – Implementation of the Government Order – Sanctioned – Orders issued -_ _-------------------------------------------------------------_ ## _**CORPORATE OFFICE (COMMERCIAL CELL)**_ _B.O.(FB)No.2164/08 (Plg.Com 4576/Waiver of MD/08/) Dated, Thiruvananthapuram, 30.08.2008_ _------------------------------------------------------------_ - _Read: - 1. B.O. (FB) No: 965/2007 (Plg.Com 4576/07)/391 dated 21.04.2007._ _2. G.O. (Rt) No: 209/2008/PD dated 02.08.2008_ _3. Note No. Plg.Com. 4576/04/07-08/140 dated 12.08.2008 of the Secretary, K.S.E.Board._ _4. Proceedings of the Board meeting dated 18.08.2008 (Agenda item No. 222/08)_ -:5:- ## **W.P(C).No.6134 of 2009** ## _**O R D E R**_ _Government vide G.O. read 2nd paper had ordered waiver of minimum demand charges/fixed charges for electricity for the period of closure in respect of all closed HT/LT Plantations and Industrial units which will be restarting their operation on or before 31.12.2008._ _**I** . The Board in its meeting held on 18.08.2008 decided to accorded sanction to adopt the G.O. (Rt) No: 209/2008/PD dated 02.08.2008 for implementation in the K.S.E.Board subject to the following conditions._ _1) To extend the cut-off date for waiver of MD charges in respect of closed industrial units/plantations specified in the G.O. (Rt) No: 35/07/PD dated 24.02.2007 for a further period upto 31.12.2008._ _2)_ _3)_ _4)_ _To extend the benefit of waiver of fixed charges in respect of LT industrial units and plantations, if they re-open on or before 31.12.2008._ _The firm availing the benefit of waiver shall have to function for a minimum period of 6 months after re-opening, failing which the benefit will be withdrawn._ _Government Order shall be applicable only to the units reopening on or before 31.12.2008 and subject to the condition that the package for repayment will be considered by the Board by processing individual cases of plantations_ -:6:- ## **W.P(C).No.6134 of 2009** _and industrial units (both HT and LT) on production of a certificate regarding closure and reopening obtained from the competent authority._ _5) To extend the benefit of waiver of MD charges to consumers whose service connection was - dismantled, if they re open on or before 31.12.2008. (emphasis supplied) 6) To effect the reconnection on remittance of 1/3rd of arrears and interest for instalment and allowing a maximum of six instalments for the balance amount subject to the condition that arrear instalments and monthly electricity charges shall be paid promptly by the consumer failing which, waiver of MD/fixed charges for closed period will be withdrawn and supply disconnected._ _7) When there are more than one spell of closure intervened by a spell of operation, the last spell of closure only shall be taken for granting waiver of minimum demand charges._ _**II.** Board also decided to request Government to pay in advance or reimburse to K.S.E.Board, the amount of minimum demand charge/ fixed charge waived on implementation of the G.O. dated 02.08.2008._ _Orders are issued accordingly._ _By Order of the Board_ _Sd/-_ _M. Subair,_ ## **W.P(C).No.6134 of 2009** ## -:7:- ## _Secretary.”_ 5. It is relevant in this context to note that Ext.P3 Board order dated 30.8.2008 was being periodically renewed pursuant to the Government orders issued in that regard and as per Board order dated 20.11.2012, the benefit of waiver of minimum demand charges/fixed charges was made available to closed industrial units which re-start operations on or before 31.12.2012. The Board order dated 20.11.2012, a copy of which was made available to me by the learned counsel for the petitioner during the course of arguments is extracted below in full:- ## _**“KERALA STATE ELECTRICITY BOARD**_ ## _**ABSTRACT**_ ## _**-------------------------------------------------------**_ _Waiver of fixed charges together with minimum demand charges in respect of closed plantations and Industrial units – Extension of validity of G.O (Rt) 220/2011/PD dated 27.09.2011 and G.O (Rt) 244 / 2011/ PD dated 17.10.2011 up to 31.12.2012 – Sanctioned – Orders issued -_ _----------------------------------------------------------_ ## _**CORPORATE OFFICE (COMMERCIAL CELL)**_ _B.O.(FB)(Genl.)No2202/2012(CommlII/MDWaiver/ 2012-13) Dated, TVPM, .20.11.2012_ _---------------------------------------------------------_ - _Read:-1. G.O. (Rt) No.64/06/PD dated, 21.02.2006. 2. G.O. (Rt) No.35/07/PD dated, 24.02.2007._ _3. G.O. (Rt) No.209/08/PD dated, 02.08.2008._ _4. B.O.(FB) No: 2164/08 (Plg.Com 4576/Waiver of MD/08) dt. 30.08.08._ **W.P(C).No.6134 of 2009** ## -:8:- _5. G.O. (Rt) No.161/2009/PD dated 06.07.2009._ _6. B.O. (FB) No: 2081/09 (Plg.Com 4576/Waiver of MD/08)/230 dated 11.08.2009._ _7. G.O. (Rt) No.216/2010/PD dated 13.09.2010._ _8. B.O. (FB) (Genl.) No: 2986/2010 (Plg.Com 4576/MD Waiver/2010-11) dated 19.11.2010._ _9. G.O. (Rt) No.220/2011/PD dated 27.09.2011._ _10. G.O. (Rt) No.244/2011/PD dated 17.10.2011._ _11. B.O. (FB) (Genl.) No: 2713/2011 (Plg.Com 4576/MD Waiver/2011-12)dated 19.11.2011._ _12. G.O. (Rt) No.136/2012/PD dated 16.07.2012._ _13. Note No. Comml-II/MD WAIVER/2012-13 dated 17.10.2012 of the Secretary, K.S.E.Board._ _14. Proceedings of the Board Meeting dated 30.10.2012 (Agenda item No.110 / 2012.)_ ## _**O R D E R**_ _Government vide G.O. read as 1[st] paper above had ordered waiver of minimum demand charges for electricity for the period of closure in respect of all closed Industrial units which will be restarting their operation on or before 31.03.2006._ _Government vide G.O. read as 2[nd] paper above had ordered that the minimum demand charges for electricity would be waived for the period of closure in respect of all closed plantations and Industrial units restarting their operation on or_ -:9:- ## **W.P(C).No.6134 of 2009** _before 30.06.2007._ _Government vide G.O. read as 3[rd] paper above had ordered to extend the validity of the G.O. (Rt)No.35/07/PD dated, 24.02.2007 up to 31.12.2008 and ordered to include fixed charges together with minimum demand charges in the waiver and there by extended the benefits to the LT Industrial units and plantations restarting their operations before 31.12.2008. Board vide order read as 4[th] paper above had adopted the G.O. (Rt) No.209/08/PD dated, 02.08.2008._ _Government vide order read as 5[th] paper above had ordered to extend the validity of the G.O. (Rt)No.209/08/PD dated, 02.08.2008 upto 31.03.2010. Board vide order read as 6[th] paper above had adopted the G.O. (Rt) No.161/2009/PD dated 06.07.2009._ _Government vide G.O. read as 7[th] paper above had ordered to extend the validity of G.O. (Rt)No.161/2009/PD dated 06.07.2009 up to 30.06.2011. Board vide order read as 8[th] paper above had adopted the G.O. (Rt) No.216/2010/PD dated 13.09.2010._ _Government vide G.O. read as paper (9) and (10) above had ordered to extend the validity of G.O. (Rt) No.216/10/PD dated 13.09.2010 upto 31.12.2011 and Board had adopted the Government Orders dated 27.09.2011 and 17.10.2011 vide Order read as 11[th] paper above._ _Government vide G.O. read as 12[th] paper_ ## **W.P(C).No.6134 of 2009** ## -:10:- _above had ordered to extend the validity of G.O. (Rt) No.220/2011/PD dated 27.09.2011 and G.O. (Rt).No.244/2011/PD dated 17.10.2011 up to 31.12.2012._ _Having examined the matter, the Board is pleased to adopt the G.O.(Rt)No.136/2012/PD dated 16.07.2012 extending the validity of benefit of Minimum Demand/fixed charge waiver during the period of closure for a further period up to 31.12.2012 and to extend such benefits to units where there was a change in ownership as well, subject to the following conditions._ _i. The Industrial units likely to avail the benefits must have been functional for minimum three years._ _ii. Cases which have been settled earlier shall not be re-opened under this scheme._ _iii. The firm availing the benefit of waiver shall have to function for a minimum period of 6 months after re-opening, failing which the benefit will be withdrawn._ _iv. Government Order shall be applicable only to the units reopening on or before 31.12.2012 and subject to the condition that the package for repayment will be considered by the Board by processing individual cases of HT plantations and industrial units on production of a certificate regarding closure and reopening obtained from the competent authority, viz., General Manager, District Industries Centre. In the case of LT plantations/_ ## **W.P(C).No.6134 of 2009** ## -:11:- _industrial units, the Deputy Chief Engineer of the concerned Electrical Circles shall be authorized to sanction the waiver of fixed charges after verifying the genuineness of the application on production of the certificate from competent authority, viz., General Manager, District Industries Centre. The Deputy Chief Engineer shall intimate the details of the consumer and the financial liability, to the Chief Engineer (Commercial & Tariff) for taking up the matter with Government for reimbursement._ _v. The benefit of waiver of MD charges shall be extended to consumers whose service connection - was dismantled, if they re open on or before 31.12.2012. (emphasis supplied)_ _vi. The reconnection shall be effected on remittance of 1/3rd of the total arrears including interest as first instalment and allowing a maximum of six equal instalments for the balance amount subject to the condition that arrear instalments and monthly electricity charges shall be paid promptly by the consumer failing which, waiver of MD/fixed charges for closed period will be withdrawn and supply disconnected._ _vii. The waiver of MD charges for different spells of closure shall be granted only for those industrial units which were closed either due to labour disputes or non availability of raw materials._ _viii. In the event of industrial units requesting waiver of MD/fixed charges or reasons other than labour disputes or non availability of raw materials,_ -:12:- ## **W.P(C).No.6134 of 2009** _the last spell of closure alone shall be considered to grant the benefit of waiver of MD/fixed charges._ _Board also orders to request the Government to pay in advance or reimburse to K.S.E. Board, the amount of Minimum Demand charges/fixed charges to be waived on account of implementation of the G.O. dated 16.07.2012._ _By Order of the Board Sd/S. Roopakala Jagath. Secretary”_ 6. After Ext.P3 Board order was issued, the petitioner submitted Ext.P4 representation dated 29.11.2008 to the second respondent informing the second respondent that the petitioner has taken efforts to re-start the industrial unit and offered to pay 1/3[rd] of the arrears due as on 28.9.2001 and the balance in six instalments in terms of the Board order. After the petitioner's industrial unit was closed, the land allotted to it (1.72 acres in Sy.No.472 of Pudussery Central Village, New Industrial Development Area, Kanjikode) as per proceedings dated 4.3.1994 of the General Manager, District Industries Centre, Palakkad, was resumed by proceedings dated 20.11.2008, which was issued a week prior to the submission of Ext.P4 representation. The petitioner firm thereupon submitted a representation to the General Manager, District Industries Centre, Palakkad informing ## **W.P(C).No.6134 of 2009** -:13:- him that the petitioner has taken earnest and effective steps to re-start the unit by availing the concession extended by the Board. The General Manager, District Industries Centre, Palakkad, thereupon sent Ext.P5 letter dated 2.1.2009 to the Director of Industries and Commerce, Trivandrum, with a request to consider the petitioner's request favourably. It is not in dispute that pursuant to the said letter, the Director of Industries and Commerce cancelled the resumption order and thereupon by Annexure 7 order dated 8.1.2009, which is produced along with the additional statement dated 3.4.2009 filed by the learned standing counsel appearing for the Board, the General Manager, District Industries Centre, Palakkad cancelled the order of resumption passed by him on 20.11.2008 and directed the Managing Partner of the petitioner firm to re-start the unit. 7. When Ext.P4 representation submitted by the petitioner for the benefits flowing from Ext.P3 Board order was not considered in time, the petitioner filed W.P.(C).No.36490 of 2008 in this Court. When the said writ petition came up for consideration on 9.1.2009, the learned standing counsel appearing for the Board submitted that a decision will be taken on Ext.P4 [marked as Ext.P12 in W.P.(C).No.36490 of 2008] within ## **W.P(C).No.6134 of 2009** -:14:- one week. W.P.(C).No.36490 of 2008 was thereupon closed by Ext.P6 judgment delivered on 9.1.2009, recording the said submission. It appears the petitioner's request for the benefits flowing from Ext.P3 Board order was placed before the Government for consideration along with the representations submitted by other industrialists and ultimately all the said claims were considered at a meeting held on 24.1.2009 in the Chambers of the Principal Secretary to Government of Kerala, (Industries & Commerce). The Secretary (Power), the Chairman of the Board, the Chief Engineer (Commercial & Tariff), the Special Officer (Revenue), two other officers of the Board and the representatives of various industrial units including the Managing Partner of the petitioner firm attended the said meeting as can be seen from Ext.P8 minutes produced along with the writ petition. Ext.P8 discloses that at that meeting, a decision was taken to request the Chairman of the Board to accept arrears of energy charges (principal amount) and to give power connection to the petitioner's industrial unit. The Chairman was also requested to consider the petitioner's request for waiver of minimum demand charges separately, provided production is resumed by 15.2.2009. The relevant portion of Ext.P8 minutes reads as follows:- **W.P(C).No.6134 of 2009** -:15:- ## _**Hamsaveni Carbides (File No.35123/**_ _**J3/08/ID) :** Chairman is requested to accept the principal amount alone and give power connection to the unit. He may also consider the request of waiver of MD charges etc. separately provided the company resumes production by 15[th] February 2009.”_ 8. Pursuant to the said decision, the petitioner took steps to restart production and also sought the statutory sanction of the Electrical Inspector as required under rule 63 of the Indian Electricity Rules, 1963. After inspection, the Electrical Inspector, Palakkad granted sanction for re-energization as per Ext.P9 order dated 4.2.2009. The petitioner had in the meanwhile remitted the sum of Rs.20,77,353/- on 24.1.2009 and the sum of Rs.5,67,750/- on 2.2.2009, aggregating to Rs.26,45,103/towards arrears of energy charges. The petitioner's request for the benefits flowing from Ext.P3 Board order in terms of Ext.P8 decision was considered by the full time members of the Board at their meeting held on 3.2.2009. The Note submitted by the Special Officer (Revenue) to the full time members of the Board that met on 3.2.2009 is on record as Ext.P10. In Ext.P10 it is stated that as on 3.2.2009, the principal amount due from the petitioner towards arrears of energy charges is Rs.26,45,103/- ## **W.P(C).No.6134 of 2009** -:16:- and in addition to it, the petitioner is liable to pay the sum of Rs.2,34,522/- by way of short remittance of electricity duty. In view of the fact that the petitioner had by 2.2.2009 remitted the sum of Rs.26,45,103/- comprising of Rs.20,77,353/- remitted on 24.1.2009 and Rs.5,67,750/- remitted on 2.2.2009, the full time members of the Board decided to effect reconnection of supply, if the petitioner pays the amount representing electricity duty, ie. Rs.2,34,522/-. The decision of the full time members of the Board was communicated to the petitioner by the Special Officer (Revenue) as per Ext.P11 letter dated 3.2.2009. The petitioner remitted the sum of Rs.2,34,522/- and thereafter sent Ext.P12 letter dated 4.2.2009 to the Special Officer (Revenue) requesting for immediate action to effect reconnection. The Special Officer (Revenue) in turn sent Ext.P13 fax message dated 4.2.2009 to the Deputy Chief Engineer, Electrical Circle, Palakkad, informing him that the petitioner has complied with the direction of the Board and requested the Deputy Chief Engineer to do the needful for effecting reconnection as per rules. In that letter, the Special Officer (Revenue) also stated that as per the records maintained in his office, the consumer (the petitioner) has to its credit an amount of Rs.4,25,816/- towards security deposit. The Deputy ## **W.P(C).No.6134 of 2009** -:17:- Chief Engineer, Electrical Circle, Palakkad, thereupon sent Ext.P14 letter dated 21.2.2009 calling upon the petitioner to remit the sum of Rs.13,50,493/- towards the cost of works on the distribution side for effecting supply. In that letter it was also stated that cost of works in the transmission side should be remitted at the Transmission Circle, Kanjikode as per the directions of the Deputy Chief Engineer, Transmission Circle, Kanjikode and reported for further action from his side. The petitioner was also called upon to submit a high tension (HT) service connection application in the prescribed form at Electrical Section, Kanjikode along with the connected papers. The instant writ petition was thereupon filed challenging Ext.P14. In Ext.P14, the Deputy Chief Engineer, Electrical Circle, Palakkad had referred to a Board order dated 19.2.2009. A copy thereof was produced by the learned standing counsel for the Board as Annexure R1(a) along with the statement dated 2.3.2009. The writ petition was thereupon amended, incorporating a challenge to Annexure R1 (a), a copy of which is produced and marked as Ext.P16. 9. The principal contention raised in the writ petition is that in view of Ext.P3 Board order and the decision evidenced by Ext.P8 minutes, the Board is not justified in calling upon the ## **W.P(C).No.6134 of 2009** ## -:18:- petitioner to pay the amounts demanded in Exts.P14 and P16. It is contended that on the terms of Ext.P3 Board order, Ext.P8 minutes and Ext.P11 letter, the petitioner was bound to pay only the principal amount representing arrears of energy charges and duty arrears and therefore, no other condition could have been imposed for restoring electricity supply. It is contended that in view of Ext.P3 Board order and the decision evidenced by Ext.P8 minutes, the Board is estopped from demanding any other amount from the petitioner for the purpose of restoring supply of power to the petitioner's industrial unit. 10. The learned standing counsel appearing for the Board has filed four separate statements. In the first of the statements dated 2.3.2009, it is stated that though initially the petitioner's unit was being supplied power from the 22KV “GASHA” feeder drawn from the 220 KV sub-station at Kanjikode, after the supply to the petitioner's industrial unit was disconnected on 11.10.2002 and the connection was dismantled on 30.5.2003, the petitioner ceased to be a consumer of the Board, that thereafter the Board took back the 500 KVA kept reserved for the petitioner and issued allocation to other applicants who were awaiting supply of power and they were given supply from the very same feeder, but in the ## **W.P(C).No.6134 of 2009** -:19:- light of Ext.P8 minutes, the Board decided to consider the request of the petitioner for reconnection of HT supply as a special case by overlooking the priority of other applicants for allocation of power subject to feasibility, after collecting the cost of construction of a new 22 KV feeder at the distribution and transmission wings. It is stated that towards the cost of drawing a new feeder on the distribution side, the petitioner has to remit the sum of Rs.13,50,493/-, that towards the cost of installing a circuit breaker and a feeder bay inside the sub-station for feeding power to the feeder, the petitioner has to remit the sum of Rs.14,00,000/- and towards enhancement of the capacity of the sub-station the petitioner has to remit the sum of Rs.11,00,000/and a further sum of Rs.20,00,000/- by way of additional cash deposit. It is also stated that presently 8 HT consumers are given supply from the 22 KV “GASHA” feeder and their total demand is 6596 KVA, that 8 distribution transformers of the Board are also connected to this feeder for feeding power to small scale industrial units, that their total power requirement is 1130 KVA, that a total load of 7726 KVA is connected to the feeder, that the load current in the feeder as recorded in the substation is 200 Amps., that the conductors of the feeder have a capacity to safely **W.P(C).No.6134 of 2009** -:20:- carry 197 Amps. only, that the feeder is overloaded and if supply is given to the petitioner's unit also from the same feeder without any modification, it will result in an increase of the power load by another 13.12 Amps. It is stated that the power conductors will not be able to bear the additional load and if power supply is given, the feeder will overheat, break and collapse. Relying on Annexure R1(e) Board order dated 24.5.2003, it is contended that once a service is dismantled, electricity connection to the particular consumer can be given only as a new connection following all the formalities therefor and also on realizing the amount due to the Board from the consumer. It is also contended that as the petitioner is a consumer whose supply has been dismantled, the formalities have to be adhered to, that the validity of the HT agreement between the petitioner and the Board expired on the day the service connection to the petitioner's industrial unit was dismantled and therefore, the petitioner has to execute a fresh agreement for availing power connection besides depositing the amounts demanded in the impugned letter/order. 11. The petitioner has filed a reply affidavit dated 5.2.2009 reiterating the contentions raised in the writ petition. With **W.P(C).No.6134 of 2009** -:21:- reference to the averment that if supply is given from the same 22 KV “GASHA” feeder, the feeder will be overloaded and it will result in a break down of the system, the petitioner has contended in paragraph 6 of the reply affidavit that the case set out in that regard is an exaggeration and if the case set out had been true, the Board would not have given connection to a nearby tile factory (Flora Tiles) with a connected load of 100 KVA. The petitioner has also stated that the said tile factory is situate adjacent to the petitioner's unit and that connection to the said factory is given from the same feeder which was drawn by the petitioner in the year 1994, by spending more than Rs.20,00,000/-. As regards the contention of the Board that the electricity connection to the petitioner's industrial unit can be treated only as a new connection, as the existing connection was dismantled, it is contended that on the terms of Ext.P3, especially clause 5 thereof, the petitioner is entitled to waiver of the minimum demand charges and therefore, the Board is not justified in taking the stand that in the case of a consumer whose supply was dismantled, the consumer will have to observe all the formalities for a new connection. 12. The learned standing counsel for the Board has filed an **W.P(C).No.6134 of 2009** -:22:- additional statement dated 10.3.2009 reiterating the stand that as the **“** GASHA **”** feeder is over loaded, a parallel feeder is proposed and the petitioner is bound to meet the expenses of a new feeder in terms of paragraph 4(1) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005. The learned standing counsel appearing for the Board has filed an additional statement dated 19.3.2009 contending that Ext.P16 Board order was issued on account of the ban on giving power connection to power intensive units in view of the precarious power availability and that the priority of 23 applicants who have applied for high tension connection from Electrical Section, Kanjikkode will have to be over looked to give connection to the petitioner. The learned standing counsel for the Board has filed an additional statement dated 3.4.2009 and an additional statement dated 12.7.2011. In the additional statement dated 12.7.2011 in paragraph 5 it is stated as follows: The petitioner's connection was dismantled on 30.5.2003. Subsequent to this, two other high tension consumers have been energized on the same feeder line, that supplied power to the petitioner prior to it's dismantling. M/s Scotfree Steels was given connection on 21.11.2003 for a contract demand of 996 KVA. Thereafter, another consumer by the name Premier Alloys was given ## **W.P(C).No.6134 of 2009** ## -:23:- HT Connection on 7.10.2005 for a contract demand of 1800 KVA from the same feeder line. Similarly, new connections have been given on other feeders also originating from the 220 KV Kanjikode Sub Station. Just as the 22 KV gasha feeder was incapacitated to carry any additional load over and above the existing capacity, the 220 KV Kanjikode Sub Station also got loaded to brim and hence incapacitated to cater for any additional loads. The capacity at the 220 KV Kanjikode Sub Station at 22 KV level is 75 MVA (75,000 KVA). The safe limit fixed for continuous supply of electricity is 80% of the installed capacity which works out to 60,000 KVA. At present, the continuous load supplied through the 220 KV Kanjikode Sub Station at 22 KV level is 67,500 KVA, which is 90% of the installed capacity. This is dangerously high as far as the 220 KV Kanjikode Sub Station is concerned. Hence, applications for power dating back to the year 2005 from this Sub Station are being put on hold. In order to tackle this precarious situation, an additional 50 MVA transformer, to capacitate the additional load, is being installed in this sub station and the same will be commissioned shortly, in order to meet the additional power requirements of the existing High Tension Consumers in the industrial area and new applicants who have applied for power since 2005. Since, the aforesaid enhancement work is specifically intended for the aforesaid units, and the general public is not being benefited by this work, the expenses to be incurred for this work cannot be met from the own fund of K.S.E.B. Hence, power is provided on the basis of a pro-rata contributions collected -:24:- ## **W.P(C).No.6134 of 2009** from such intending consumers. 13. In paragraph 9 of the additional statement dated 12.7.2011 it is stated that initially at the time of providing power connection to the petitioner's industrial unit, the 22 KV feeder to the petitioner's unit was extended from the existing feeder that was used to provide power to M/s. Malampuzha Cements, another high tension consumer. It is also stated that the distance from M/s.Malampuzha Cements to the petitioner's premises is 200 metres. In paragraph 12 of the statement dated 12.7.2011, it is stated that in Ext.P13 due to an over sight it was incorrectly stated that security deposit of Rs.4,25,816/-is available with the Board to the credit of the petitioner. In the statement dated 12.7.2011, it is also stated that there was downward revision in the estimate prepared for the cost of drawing the 22 KV line and the amount to be remitted by the petitioner has been revised as shown below: - (i) Cost in the distribution side towards drawing the Rs.7,07,562/new 22 KV feeder (Power line) - (ii) Cost in the transmission wing towards installing a Rs.14,00,000/circuit breaker and a feeder bay inside the substation for feeding power to the feeder - (iii) Costs in the transmission wing towards prorata Rs.11,00,000/contribution towards enhancement of substation - (iv) Addl. Cash Deposit to be paid over and above Rs.16 Rs.4,25,816/lakhs already paid by the petitioner as per order in W.A.No.925/2009 ## **W.P(C).No.6134 of 2009** -:25:- ## **Total** Rs.36,33,378/- 14. A counter affidavit dated 18.7.2011 has been filed on behalf of respondents 1 to 3 wherein the Board has attempted to explain the circumstances in which the Kerala State Electricity Regulatory Commission dismissed the application filed by the Board for levying and collecting transmission side development charges on per KVA basis from prospective LT/HT/EHT consumers. The Board has on 23.11.2012 filed I.A.No.15998 of 2012 and produced along with it as Ext.R1(d), an order dated 23.5.2011 issued by the Kerala State Electricity Regulatory Commission whereby it approved the standard estimate rates for the works above 11 KV level prepared by the Board with modifications and also permitted the Board to collect the expenses in that regard from prospective consumers. It is contended that where works involve construction of electric plants and lines above 11 KV level, the Board is entitled to collect the expenses incurred by it for construction of sub-stations, transmission lines or up-gradation of transmission lines or sub-stations from the prospective consumer so as to cater to the larger capacity load requirement of that consumer. 15. When this writ petition came up for hearing on ## **W.P(C).No.6134 of 2009** -:26:- 3.4.2009, after hearing the learned counsel appearing for the petitioner and the learned standing counsel appearing for the Kerala State Electricity Board, the learned single Judge passed an interim order to the effect that upon the petitioner remitting the sum of Rs.36,00,493/- and executing agreements, connection will be given within a period of two months from the date on which the sum of Rs.36,00,493/- is remitted and the agreements are executed. It was also stipulated that such payment will be purely provisional and subject to the result of the writ petition and if the petitioner succeeds, the amounts remitted will have to be refunded to the petitioner. The operative portion of the interim order dated 3.4.2009 reads as follows: Upon the petitioner remitting Rs.36,00,493/- and executing Agreements, connection will be given to the petitioner as early as possible and, at any rate, within a period of two months from the date on which the payment of Rs.36,00,493/- is made and the Agreements are executed. This is subject to the further condition that the petitioner will commence payment of the instalments with the appropriate rate of interest. The first instalment shall be paid within a peiod of one month from the date of payment of Rs.36,00,493/-. It is made crystal clear that the payments which are to be made by the petitioner in terms of this order will be purely provisional and it will be subject to the result of the writ petition and if the petitioner **W.P(C).No.6134 of 2009** -:27:- succeeds, the amounts will have to be refunded to the petitioner. 16. The petitioner carried the matter in appeal by filing W.A.No.925 of 2009. A Division Bench of this Court disposed of the said writ appeal after hearing learned counsel on both sides by judgment delivered on 8.4.2009, with the direction that in case the petitioner deposits a further amount of Rs.16,00,000/- within two weeks, power supply shall be restored within a period of two weeks thereafter. In other words the Division Bench directed that if the petitioner remits the sum of Rs.16,00,000/- in addition to the sum of Rs.26,45,103/- remitted in January 2009 and the sum of Rs.2,34,522/- remitted in February, 2009, the Board shall give electricity supply to the petitioner's industrial unit within two weeks. Paragraph 4 of the judgment dated 8.4.2009 in W.A No.925 of 2009 is extracted below: “Whether or not the petitioner is liable ultimately to pay this amount of Rs.36 lakhs need not be considered at this stage since we are only considering as to whether as a condition for reconnection any further amount is required to be deposited by the petitioner as a provisional arrangement and if so how much amount he has to remit. In this regard, we have already pointed out that no mention is made in Exts.P11 and P13 about the further amount of contribution he has to make, as contained in -:28:- ## **W.P(C).No.6134 of 2009** Ext.P14 order - the security deposit of Rs.20 lakhs. Be that it may, if the appellant is statutorily liable to pay such amount, we cannot say that he is not liable to pay this amount at all. However, these matters are yet to be considered by this Court. Admittedly, some amount is lying with the respondent Board as balance towards security deposit. Therefore, the deficit to make the amount of Rs.20 lakhs will roughly come to Rs.16 lakhs. Though the appellant disputes his liability to pay this amount until a final decision is taken, we cannot accept the said contention at this stage. Therefore, there will be a direction that in case the petitioner deposits a further amount of Rs.16 lakhs (Sixteen lakhs) within two weeks, the respondent shall restore supply by reconnection within a period of two weeks thereafter. The amount as directed above will be provisional and subject to the contentions that are available to be raised by eitehr side. This is only in partial modification of the order made by the learned Single Judge and the appellant is also liable to make instalments/payments as directed in the order with which we are not interfering”. 17. Respondents 1 to 3 and 6 in the W.A No.925 of 2009 thereupon filed R.P.No.432 of 2009. In the review petition the Board raised two principal contentions. The first contention raised was that the Board is entitled to collect in advance the cost and expenses for a fresh connection from the petitioner and therefore, the said amount has to be paid in advance. The second contention ## **W.P(C).No.6134 of 2009** -:29:- raised was that the time limit stipulated for giving supply after remittance of the sum of Rs.16,00,000/- is grossly inadequate having regard to the fact that the line has to be drawn for more than one kilometre. After hearing the learned counsel on both sides the Division Bench of this Court disposed of R.P.No.432 of 2009 by order passed on 9.6.2009 by clarifying that the balance amount of Rs.42,00,000/- should paid in 60 equal monthly instalments and with a direction to the petitioner to start remitting the instalments within one month from the date on which connection is given. Having regard to the fact that the petitioner had remitted the sum of Rs.16,00,000/- on 28.4.2009 pursuant to the direction issued by the Division Bench on 8.4.2009, the Division Bench also granted three days further time to the Board to give supply and directed that supply shall be given on or before 30.6.2009. Thereafter, a fresh high tension agreement was entered into between the petitioner and the Board on 25.6.2009 and electricity connection was given to the petitioner's industrial unit on 26.6.2009. It is not in dispute that the petitioner is remitting every month, the sum of Rs.70,000/- pursuant to the direction issued by the Division Bench on 9.6.2009 in R.P.No.432 of 2009 in W.A.No.925 of 2009 and as on today, 41 such monthly **W.P(C).No.6134 of 2009** -:30:- instalments have thus been remitted by the petitioner. 18. I heard Sri.Raju Joseph, learned Senior Advocate appearing for the petitioner, Sri.P.Santhalingam, learned Senior Advocate appearing for the Kerala State Electricity Board and Sri.Reji Joseph, learned Government Pleader appearing for respondents 4 and 5. Sri.Raju Joseph, learned Senior Counsel appearing for the petitioner contended that having regard to the background in which Ext.P3 Board order was issued and the terms and stipulations therein, especially paragraphs 5 and 6 thereof, the Board is not justified in demanding and collecting transmission side and distribution side development charges as set out in Exts.P14 and P16. The learned Senior Counsel contended with particular reference to paragraph 5 of Ext.P3 Board order that waiver of minimum demand charges is available to consumers whose service connection has been dismantled, that such consumers need only pay 1/3[rd] of the arrears of energy charges and interest as the first instalment for obtaining reconnection and therefore, the Board cannot contend that a consumer whose connection has been dismantled should pay transmission side/distribution side development charges. The learned Senior Counsel contended that if that had been intention of the ## **W.P(C).No.6134 of 2009** ## -:31:- Government when it issued the order dated 2.8.2008 or the Board when it issued Ext.P3 order it would have been specifically stated therein, and therefore, for that reason also, the Board cannot add to the stipulations in Ext.P3 and insist on payment of charges other than those mentioned therein. The learned Senior Counsel contended that even the stipulation regarding remittance of 1/3[rd] of the arrears and interest as the first instalment was dispensed with in the case of the petitioner when the decision evidenced by Ext.P8 was taken, at a meeting attended by the Power Secretary, the Chairman of the Board and the Chief Engineer, that pursuant to the said decision, the full time members of the Board that met on 3.2.1999 decided to effect reconnection of supply having regard to the remittance by the petitioner of the principal amount representing the arrears of energy charges, on the petitioner remitting the sum of Rs.2,34,522/- towards arrears of electricity duty, that the said amount was also remitted and therefore, the Board cannot thereafter call upon the petitioner to pay transmission side/distribution side development charges as demanded in Exts.P14 and P16. The learned Senior Counsel contended referring to paragraph 1 of the statement dated 12.7.2011 filed on behalf of respondents 1 to 3 that the cost of ## **W.P(C).No.6134 of 2009** -:32:- drawing a new 22 KV feeder to supply power to the petitioner's industrial unit has come down to Rs.7,07,562/- from the demand for Rs.13,50,493/- made in the statement dated 2.3.2009 and in Ext.P14 and that the petitioner is not liable to pay the said sum or the sum of Rs.25,00,000/- towards transmission side development charges as demanded in the statements filed by the learned standing counsel for the Board. The learned Senior Counsel contended that as Ext.P3 Board order and the Government order dated 2.8.2008 do not stipulate that the consumer seeking reconnection should bear the expenses on the distribution side and the transmission side, the Board cannot legitimately demand payment of distribution side and transmission side development charges. The learned Senior Counsel for the petitioner however very fairly conceded that the petitioner has no objection to deposit the sum of Rs.16,00,000/- as cash deposit, having regard to the fact that such cash deposit will earn interest which is periodically set off against energy charges. The learned Senior Counsel for the petitioner, also submitted that the sum of Rs.16,00,000/- was remitted on 28.4.2009 pursuant to the interim order passed by the learned single Judge on 3.4.2009 and that the only greivance that the petitioner now has as regards the ## **W.P(C).No.6134 of 2009** -:33:- cash deposit, is about the non-availability of the sum of Rs.4,25,816/- mentioned in Ext.P13 letter sent by the Special Officer (Revenue). 19. Relying on the decision of the Apex Court in **Mahabir Vegetable Oils (P) Ltd. and Another v. State of Haryana and** **Others** (2006 (3) SCC 620), the learned Senior Counsel for the petitioner contended that the Board is estopped from adding to or altering the terms of Ext.P3 and insisting on payment of further amounts to effect reconnection, that the policy of the Government reflected in the Government order dated 2.8.2010 is even now in force and that the Board was periodically issuing orders enabling industrial consumers to restart operations by giving them waiver of minimum demand charges/fixed charges and that even in the latest of the orders issued by the Board, viz. the order dated 20.11.2012, all that is stipulated is that reconnection will be effected on remittance of 1/3[rd] of the total arrears including interest as the first instalment (allowing a maximum of six instalments for payment of the balance) and that even in the said order which was issued after the instant writ petition was filed, the Board has not stipulated that the consumer seeking the benefit of the said Board order should, if the supply has been dismantled, ## **W.P(C).No.6134 of 2009** -:34:- meet the expenses on the distribution side/transmission side for effecting restoration of supply. The learned Senior Counsel for the petitioner contended that even in the latest Board order, the Board has not stipulated that the beneficiaries thereunder will be treated as new consumers and that only a new consumer in the real sense of the term can be called upon to meet the development charges on distribution side and if permissible in law, the transmission side development charges. 20. Per contra, Sri.P.Santhalingam, learned Senior Counsel appearing for the Board contended with particular reference to the load bearing capacity of the 22 KV “GASHA” feeder that the feeder cannot support any further load, that it is already over loaded, that after the supply to the petitioner's unit was disconnected and dismantled, supply from the very same feeder was given to other consumers and therefore, it is necessary to draw another feeder to give electricity supply to the petitioner. The learned Senior Counsel contended that as per the provisions contained in the Kerala Electricity Supply Code, 2005 and the Kerala State Electricity Board Terms and Conditions of Supply, 2005, the Board is entitled to levy and collect development charges on the distribution side where extension of the distribution main is ## **W.P(C).No.6134 of 2009** -:35:- required. Relying on Ext.R1(d) order dated 23.5.2011 issued by the Kerala State Electricity Regulatory Commission, the learned Senior Advocate appearing for the Board contended that the Regulatory commission has permitted the Board to levy transmission side development charges from prospective consumers where works involving the construction of electric plants and lines above 11 KV level are required and therefore, no exception can be taken to the demand in Ext.P14 letter and Ext.P16 Board order. The learned Senior Advocate contended that as the supply to the petitioner's industrial unit was disconnected on 11.10.2002 and it was dismantled on 30.5.2003 and a new high tension agreement was executed on 25.6.2009, for all practical purposes, the petitioner can be treated only as a new consumer who is bound to pay the expenses on the distribution side and also on the transmission side, having regard to the provisions contained in Regulation 8 of the Kerala Electricity Supply Code, 2005 and Ext.R1(d) order dated 23.5.2011 issued by the Kerala State Electricity Regulatory Commission and therefore for that reason also, no interference is called for with the impugned orders. The learned Senior Advocate contended that restoration of power supply to the petitioner's industrial unit could ## **W.P(C).No.6134 of 2009** -:36:- have been given only by overlooking the priority of other applicants and therefore, as it involved additional works on the transmission side and distribution side, the levy of expenses in that regard cannot be objected to, having regard to the stipulations contained in regulation 8 of the Kerala Electricity Supply Code, 2005 and Ext.R1(d) order dated 23.5.2011 issued by the Kerala State Electricity Regulatory Commission. 21. I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The benefit of waiver of minimum demand charges was first extended to closed industrial units by G.O(Rt.)No.64/2006/PD dated 21.2.2006. It is stipulated therein that the benefit of waiver of minimum demand charges will be available to closed industrial units which restart operations on or before 31.3.2006. Later, the Government issued G.O(Rt) No.35/2007/PD. dated 24.2.2007 waiving fixed charges also along with minimum demand charges for electricity in respect of closed industrial units or plantations which restart operations on or before 30.6.2007. These orders were implemented by the Board. Still later, the Government issued G.O.(Rt) No.209/2008/PD dated 2.8.2008 whereby the Government **W.P(C).No.6134 of 2009** -:37:- extended the validity of the Government order dated 24.2.2007 up to 31.12.2008 and extended the benefit of waiver of minimum demand charges to low tension industrial units and plantations which restart operations before 31.12.2008. The Board thereupon issued Ext.P3 order dated 30.8.2008. In clause (5) thereof it is stipulated that the benefit of waiver of minimum demand charges will be given to consumers whose service connection was dismantled, if they re-open on or before 31.12.2008. In paragraph (6) it is stipulated that reconnection will be effected on remittance of 1/3[rd] of arrears and interest for instalment (remittance of 1/3[rd] of arrears and interest as the first instalment as stated in the subsequent Board orders). It is also stipulated that the balance amount will have to be remitted in six instalments. The consequences of failure to effect such payment are also set out and they include withdrawal of the waiver of minimum demand charges and fixed charges and disconnection of supply. The petitioner could not re-open its industrial unit before 31.12.2008 for various reasons including the failure of the Board to act in time to restore supply. It necessitated the filing of W.P.(C) No. 36490 of 2008 in this Court. Though by Ext.P6 judgment delivered on 9.1.2009, this Court disposed of W.P.(C) No.36490 of 2008 with a ## **W.P(C).No.6134 of 2009** -:38:- direction to the Electricity Board to take a decision within one week, the decision was not taken at the Board level but at the Government level as can be seen from Ext.P8 minutes. Ext.P8 minutes reflects the decision taken at the meeting held on 24.1.2009 in the Chambers of the Principal Secretary to Government (Industries & Commerce), which was attended by the Power Secretary, the Chairman of the Board, the Chief Engineer (Commercial and Tariff) and the Special Officer (Revenue) and two other officers of the Board. At that meeting, a decision was taken to request the Chairman of the Board to accept the principal amount alone and to give power connection to the petitioner's unit. The Chairman of the Board was also directed to consider the request for waiver of minimum demand charges provided the petitioner resumes production by 15.2.2009. That decision was carried out and implemented in the meeting of the full time members of the Board held on 2.3.2009. It is not in dispute that by then, the petitioner had remitted the sum of Rs.26,45,103/comprising of Rs.20,77,353/- remitted on 24.1.2009 and Rs.5,67,750/- remitted on 2.2.2009. 22. Later, after the full time members of the Board decided to effect reconnection of supply, on noticing that arrears of ## **W.P(C).No.6134 of 2009** -:39:- electricity duty to the tune of Rs.2,34,522/- is also due from the petitioner, while communicating the decision of the full time members of the Board to the petitioner, by Ext.P11 letter the petitioner was called upon to remit the sum of Rs.2,34,522/-. The petitioner remitted the said amount as well. These facts are not in dispute. After the petitioner complied with the decision taken by the full time members of the Board on 3.2.2009 by remitting the entire arrears of energy charges (the principal alone) and arrears of electricity duty, the Special Officer (Revenue) sent Ext.P13 letter dated 4.2.2009 to the Deputy Chief Engineer, Electrical Circle, Palakkad to effect reconnection as per rules so as to enable the petitioner to resume production by 15.2.2009. The words “as per rules” occurring in Ext.P13 letter was not one contemplated by the full time members of the Board in their decision recorded in Ext.P13. This in turn prompted the Deputy Chief Engineer to issue Ext.P14 letter dated 21.2.2009 whereby he called upon the petitioner to remit the sum of Rs.13,50,493/towards the cost of works in the distribution side for effecting supply to the petitioner's firm. The petitioner was informed that the Board has decided to consider the request of the petitioner for reconnection of supply as a special case, overlooking all other ## **W.P(C).No.6134 of 2009** -:40:- pending applications, subject to feasibility, after collecting the cost for construction of a new 22 KV feeder at the distribution side and after collecting the proportionate cost for enhancing the capacity of 220 KV sub-station at Kanjikode. Such a letter was issued, as can be seen from the letters on record, pursuant to Ext.P16 Board order dated 19.2.2009 which in turn discloses that it was issued pursuant to the letter dated 7.2.2009 sent by the Deputy Chief Engineer, Electrical Circle, Palakkad that to give supply of power to the petitioner, the capacity of the 220 KV sub-station at Kanjikode has to be enhanced by drawing a new 22KV feeder. It is evident from Ext.P16 Board order that the Board treated the petitioner as a new consumer seeking supply and not as a consumer, whose supply has been dismantled, seeking the benefit of Ext.P3 Board order. A reading of Ext.P16 Board order indicates that the Board has not referred to Ext.P3 or the stipulation therein that reconnection should be effected on remittance of 1/3[rd] of the arrears and interest. The Board did not also refer to Ext.P8 minutes, which evidences the decision taken on 24.1.2009 to accept the principal amount alone from the petitioner and to consider the request for waiver of minimum demand charges and payment of interest separately if the unit is reopened on or before ## **W.P(C).No.6134 of 2009** -:41:- 15.2.2009. In other words, the Board has proceeded on the basis that the petitioner's case is not governed by the stipulations in Ext.P3. 23. In my opinion, the stand taken by the Board in Ext.P16 cannot be sustained. Neither the Government order dated 2.8.2008 nor Ext.P3 Board order dated 30.8.2008 quoted above stipulates that the consumer who is entitled to the benefits thereunder should once again pay the expenses which he has already incurred for getting the power supply. The only stipulation in Ext.P3 Board order was that reconnection will be effected on remitting 1/3[rd] of the arrears and interest and the consumer will be given a minimum of six instalments for payment of the balance amount. However in the case of the petitioner, a decision was taken to request the Chairman of the Board to accept the principal amount alone and to give power connection and to waive the minimum demand charges, interest etc., provided production is resumed on or before 15.2.2009. The full time members of the Board that met on 3.2.2009 resolved to effect reconnection if the petitioner pays the principal amount without the minimum demand charges and the duty arrears and agrees to withdraw all court cases. Thereafter, a letter was sent informing the petitioner ## **W.P(C).No.6134 of 2009** -:42:- that if the petitioner pays the principal amount other than minimum demand charges and Rs.2,34,522/- towards arrears of electricity duty, reconnection of supply will be effected. The petitioner remitted the said amount on the very next day and thereafter sought reconnection of supply. On the terms of Ext.P3 Board order and the decision evidenced by Ext.P8 minutes and also the decision taken by the full time members of the Board on 3.2.2009, I am of the opinion that the demand in Ext.P16 cannot be sustained. In view of Ext.P8 minutes and Ext.P11 letter which reflect the decision of the full time members of the Board, the Secretary of the Board could not have in my opinion passed Ext.P16 order. In any case, Ext.P16 order does not refer to any meeting of the full time members of the Board after the meeting held on 3.2.2009 or of the full board on any day prior to 19.2.2009. There is also no statement in Ext.P16 order or in the various statements filed on behalf of the respondents to the effect that Ext.P11 letter does not reflect the decision of the full time members of the Board that met on 3.2.2009. 24. It is not in dispute that the petitioner had prior to 4.1.2009 taken steps to restart its unit and had also obtained sanction on 4.2.2009 for re-energisation of the unit as required ## **W.P(C).No.6134 of 2009** -:43:- under rule 63 of the Indian Electricity Rules, 1963 from the Electrical Inspector, Palakkad. The materials on record disclose that the petitioner had acting on the promise held out in Ext.P3 Board order and in Ext.P8 decision altered its position, remitted the sum of Rs.26,45,103/- towards payment of arrears of energy charges excluding minimum demand charges and Rs.2,34,522/towards electricity duty and in addition incurred expenditure for repairing and renovating the industrial unit. It is relevant in this context to note that the Government and the Board have been periodically extending the benefit of waiver of minimum demand charges and fixed charges to industrial units like the petitioner's which had been closed and the supply to which had been dismantled. Even in the latest of the orders issued by the Board namely the order dated 20.11.2012, it is not stipulated that a consumer whose supply has been dismantled and is seeking waiver of minimum demand charges and reconnection of supply will have to pay for transmission side development charges to augment the capacity of the sub-station or expenses on the distribution side if the feeder supplying power is over loaded or that such applicants will be treated as prospective consumers seeking fresh electricity connection. The Board has no case that **W.P(C).No.6134 of 2009** -:44:- the promise held out in Ext.P3 Board order is contrary to law or outside the authority of the Board or the Government. The Board has also no case that in public interest, the representation or the promise held out in Ext.P3 has since been withdrawn. On the other hand, the Board order dated 20.11.2012 discloses that without interruption, for the past more than six years, the Board has been extending the benefit held out in Ext.P3 to consumers like the petitioner, the supply to whose industrial units was either disconnected or dismantled. I accordingly hold that the demand made in Ext.P16 Board order which in turn is reflected in Ext.P14 letter, for payment of transmission and distribution side development charges cannot be sustained. On the terms of Ext.P3 Board order, Ext.P8 minutes and the decision of the full time members of the Board reflected in Ext.P11 letter, the petitioner was entitled to restoration of supply on payment of the principal amount of arrears of energy charges excluding the minimum charges and arrears of electricity duty in the event of the unit restarting production before 15.2.2009. On account of the stand taken by the Board, notwithstanding the fact that sanction had been accorded by the Electrical Inspector to restart the unit, the petitioner could not restart the unit. It was only pursuant to the ## **W.P(C).No.6134 of 2009** -:45:- interim order passed by the learned single Judge on 8.4.2009 that the Board restored electricity supply to the petitioner's industrial unit on 27.6.2009 and that too only after a new high tension agreement was executed on 25.6.2009. As the unit was ready for re-energistaion before 15.2.2009, the mere fact that reenergisation was done only on 27.6.2009 on account of the stand taken by the Board, cannot in my opinion, on the facts of the instant case, be a reason to deny the petitioner, the benefits flowing from Ext.P3 Board order, Ext.P8 minutes and Ext.P11 letter evidencing the decision taken by the full time members of the Board at their meeting held on 3.2.2009. I accordingly hold that the petitioner is entitled to succeed. For the reasons stated above, I allow the writ petition, quash Ext.P16 Board order and Ext.P14 letter to the extent they demand payment of transmission side and distribution side development charges by the petitioner. In view of the concession made by the learned Senior Counsel appearing for the petitioner that the petitioner does not press the challenge to the demand for additional cash deposit of Rs.16,00,000/-, I direct that the amount paid by the petitioner in instalments commencing from July, 2009 pursuant to the order dated 9.6.2009 passed by the Division ## **W.P(C).No.6134 of 2009** -:46:- Bench in R.P. No.432 of 2009 in W.A.No. 925 of 2009, less the sum of Rs.16,00,000/- shall be refunded to the petitioner or adjusted against the future electricity bills. Needless to say, the petitioner will be entitled to simple interest at 7.5% per annum on the amounts deposited by the petitioner in instalments pursuant to the order of the Division Bench referred to above and the said amount will also have to be refunded or adjusted against the future energy bills. The dispute raised by the petitioner as regards the availability of the sum of Rs.4,25,816/- shall be enquired into by the Special Officer (Revenue) with notice to the petitioner and if the said amount is available, it shall also be treated as part of the cash deposit. The parties shall bear their respective costs. ## **(JUDGE)** ahg/rkc/vps ## **W.P(C).No.6134 of 2009** -:47:- ## **W.P(C).No.6134 of 2009** -:48:- ahg/rkc ## **W.P(C).No.6134 of 2009** -:49:- **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. ------------------------------------------------------** ## **JUDGMENT** **27[th] November, 2012**