High Court of KeralaSingle Judge2017-02-10Writ petition dismissed; further directions iss...

John Varghese and others v. Kerala State Electricity Board

Case / Petition Number:WP(C).No. 1921 of 2007 (D)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2017-02-10
Court Decision / Holding: Writ petition dismissed. Petitioners to be issued notices of demand by the Board and to receive deduction of amounts already paid, if any, as per the interim orders of this Court.
Final Disposition: Writ petition dismissed; further directions issued regarding demand notices and refunds as per interim orders.

Parties to the Case

Appellants / Petitioners

John Varghese
K.T. Joseph
Thalayar Jose
T.S. Shaji
P.J. Joseph

Respondents

The Kerala State Electricity Board represented by its Secretary, Vaidhyuthi Bhavan, Pattom, Trivandrum
The Senior Superintendent, Kerala State Electricity Board, Electrical Major Section, Thengana, Perumbanachi Post, Changannacherry
The Assistant Executive Engineer, Kerala State Electricity Board, Electrical Major Section, Thengana, Perumbanachi Post, Changannacherry
The Executive Engineer, Kerala State Electricity Board, Changanacherry

Legal Representation & Advocates

Counsels for Petitioners

• C. S. Manilal
• M. K. Subhakaran

Counsels for Respondents

• S. Sudheer Ganesh Kumar, SC, KSEB

Case Synopsis & Summary

John Varghese, K. T. Joseph, Thalayar Jose, T. S. Shaji and P. J. Joseph, proprietors of five rubber industrial units at the Changanacherry Industrial Estate, challenge the Kerala State Electricity Board's Exhibit P10 order which denied concessional electricity rates under Government Order G.O. (MS) No. 4/92/PD for new units started between 1 January 1992 and 31 December 1996. The petitioners contended they qualify as a class of new industrial units eligible for concessional rates under the notification (Exhibit P1). The Board countered that there is no material establishing that the petitioners were within the eligibility period or that they applied for concessional rates; it further argued that, during a period of power shortage (1996–1997), a fixed monthly quota was imposed, and consumption in excess of the quota was billed at the regular tariff. Even if concessional rates applied, they would not cover excess consumption beyond the quota. The petitioners also raised natural justice and limitation questions, citing Cyriac v. K.S.E. Board, which the court distinguishes. The court also considers Abdul Nazer v. K.S.E.B. on prospective limitation. Ultimately, the writ petition is dismissed, with directions to issue demand notices and to deduct amounts already paid, if any, in line with interim orders. The decision turns on lack of evidence of eligibility and the impact of fixed quotas on concessional treatment.”

Provisions of Law Cited

G.O.(MS) No.4/92/PD dated 04.02.1992Section 56(2) of the Indian Electricity Act, 2003

Legal Doctrines & Maxims

Principles of natural justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that they qualify for concessional electricity rates under G.O. MS 4/92/PD as new industrial units started in the period 1992–1996. They rely on Exhibit P1 (the notification) and seek the concessional rate accordingly. They assert that the Board’s Exhibit P10 order misapplies the notification, and they claim they were not heard in violation of natural justice. They also challenge on the basis of limitation, citing Cyriac v. K.S.E.B. and seeking relief for amounts billed spuriously. They argue that if entitlement exists it should be recognized even if there was an earlier period of shortage; they urge the court to read the notification in light of the facts of their units and consumption.

Contentions of Respondents

The Board argues there is no material proving that the petitioners were within the eligibility window of 1992–1996 or that they applied for concessional rates. It notes that Exhibit P10 states the concession is not relevant to the issue and that, due to power shortages, a minimum quota was fixed; charges for excess consumption were billed at the regular tariff. Even if concession were applicable, it would not extend to excess consumption beyond the quota. The Board maintains the petitioners’ objection to hearing is unsubstantiated and relies on earlier precedents about limitation. It contends the relief sought is not justified given the lack of demonstrated entitlement and the necessity to bill according to quota and tariff.”},

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Cyriac v. K.S.E.Board	1989 (1) KLT 920	Distinguished	The court distinguishes Cyriac on its facts related to natural justice in meter revision disputes, noting it is not applicable to the present case involving excess consumption within fixed quotas.
Abdul Nazer v. K.S.E.B.	2006 (1) KLT 811	Positive	The court relies on Abdul Nazer for the proposition that limitation would have only prospective effect, supporting its view on limitation in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **FRIDAY, THE 10TH DAY OF FEBRUARY 2017/21ST MAGHA, 1938** **WP(C).No. 1921 of 2007 (D)** **--------------------------** - **PETITIONER(S): -------------** **1. JOHN VARGHESE, PROPRIETOR, M.K. RUBBERS (CONSUMER NO.8046), INDUSTRIAL ESTATE, CHANGANACHERRY.** **2. K.T.JOSEPH, PROPRIETOR, THEKKEKARA RUBBERS (CONSUMER NO.7566), INDUSTRIAL ESTATE, CHANGANACHERRY.** **3. THALAYAR JOSE, PROPRIETOR, JANATHA RUBBER WORKS (CONSUMER NO.7616), INDUSTRIAL ESTATE, CHANGANACHERRY.** **4. T.S.SHAJI, PROPRIETOR, THEKKEKARA RUBBER INDUSTRIES (CONSUMER NO.7615), INDUSTRIAL ESTATE, CHANGANACHERRY.** **5. P.J.JOSEPH, PROPRIETOR, SAB RUBBERS (CONSUMER NO.7546), MADAPALLY POST, CHANGANACHERRY.** **BY ADVS.SRI.C.S.MANILAL SRI.M.K.SUBHAKARAN** **RESPONDENT(S):** - **--------------** **1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVAN, PATTOM, TRIVANDRUM.** **2. THE SENIOR SUPERINTENDENT, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, THENGANA, PERUMBANACHI POST, CHANGANACHERRY.** **--2--** **--2--** ## **WP(C).No. 1921 of 2007 (D)** **--------------------------** **3. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, THENGANA, PERUMBANACHI POST, CHANGANACHERRY.** **4. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, CHANGANACHERRY.** **BY SRI.SUDHEER GANESH KUMAR, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 1921 of 2007 (D) --------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 : TRUE COPY OF G.O.(MS)NO.4/92/PD DATED 6.2.91. EXHIBIT P2 : TRUE COPY OF DEMAND NOTICE NO.52232 ISSUED BY 2ND RESPONDENT TO 1ST PETITIONER’S INDUSTRIAL UNIT DATED 27.3.2000. EXHIBIT P3 : TRUE COPY OF DEMAND NOTICE NO.71612 ISSUED BY -DO- TO 2ND PETITIONER’S INDUSTRIAL UNIT DATED 27.3.2000. EXHIBIT P4 : TRUE COPY OF DEMAND NOTICE NO.52215 ISSUED BY 2ND RESPONDENT TO 3RD PETITIONER’S INDUSTRIAL UNIT DATED 27.3.2000. EXHIBIT P5: TRUE COPY OF DEMAND NOTICE NO.71618 ISSUED BY 2ND RESPONDENT TO 4TH PETITIONER’S INDUSTRIAL UNIT DATED 27.3.2000. EXHIBIT P6 : TRUE COPY OF DEMAND NOTICE NO.71688 ISSUED BY 2ND RESPONDENT TO 5TH PETITIONER’S INDUSTRIAL UNIT DATED 27.3.2000. EXHIBIT P7 : TRUE COPY OF THE LETTER DATED 29.1.1996 OF THE 3RD RESPONDENT ISSUED TO 2ND PETITIONER. EXHIBIT P7(a) : TRUE COPY OF DEMAND NOTICE NO.F15-72092 DATED 15.4.1996 OF THE 2ND RESPONDENT ISSUED TO 2ND PETITIONER FOR THE PERIOD MARCH, 2000. EXHIBIT P7(b) : TRUE COPY OF DEMAND NOTICE NO.050619 DATED 15.6.1996 OF THE 2ND RESPONDENT ISSUED TO 6TH PETITIONER FOR THE PERIOD MAY, 1996. EXHIBIT P8 : TRUE COPY OF COMPLIANT DATED 24.3.2000 OF THE PETITIONERS FORWARDED TO RESPONDENTS 1, 3 AND 4. EXHIBIT P9 : TRUE COPY OF JUDGMENT DATED 25.5.2006 IN O.P.NO.9523/2000(H). EXHIBIT P10 : TRUE COPY OF ORDER DATED 30.11.2006 OF THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE mbr/** ## K. Vinod Chandran, J ---------------------------------------- ## W.P.(C).No.1921 of 2007-D ----------------------------------------Dated this the 10[th] day of February, 2017 ## **JUDGMENT** The petitioners are Proprietors of different industrial units in Changanacherry Industrial Estate, who challenge Exhibit P10 order of the Kerala State Electricity Board [for brevity “Board”], which considered the grievances raised by the petitioners as per the directions of this Court in Exhibit P9. The petitioners claim concessional rate under Exhibit P1. The ground raised, on the basis of Exhibit P1, is that the petitioners are persons who started new industrial units between 01.01.1992 and 31.12.1996. 2. At the outset, it is to be noticed that there is nothing produced to show that the petitioners were persons who started an industrial unit within the period specified in Exhibit P1 and, hence, were qualified to be classified as a **'** new industrial unit **'** as per Exhibit P1 notification. It is also to be specifically noticed that Exhibit P10 order says so: “The contention that the petitioner are eligible for concession envisaged in G.O.(MS) - 2 - WP(C) No.1921 of 2007 No.4/92/PD dated 04.02.1992 has no relevance in this issue. Had the petitioner been eligible for the said benefits they should have applied for it as per the Government Order”. Despite the said finding, the petitioners have not produced anything in the writ petition to show that they were entitled to the concessional rate under the notification and that they applied for the same and were so granted the concessional rate. 3. It is also to be noticed that the petitioners’ claim raised against the bills issued at Exhibits P2 to P6 and P7(a) and P7(b) was rejected, as is evidenced from Exhibit P10, since the petitioners had exceeded their monthly quota which was fixed ; for reason of a power shortage during the period between 06.01.1996 to 15.12.1997. The petitioners having exceeded the quota, were liable for regular rate for the consumption. The bills issued at Exhibits P2 to P6 took into account the excess consumption of the petitioner and charged them at the applicable tariff. It is to be noticed that even if the petitioners were entitled to concession as per Exhibit P1, the same would not be applicable - 3 - WP(C) No.1921 of 2007 when the petitioners use power in excess of the quota allotted to them by the licensee, the Board; who supplies electricity. 4. It is evident that the Board, on the power shortage being occasioned, had fixed minimum quota for all the consumers. The petitioners do not have a contention in the writ petition that it was not fixed in each of their cases. Having fixed such quota, the petitioners ought to have been careful to consume electricity within the quota prescribed. The same having not been done, the petitioners cannot claim concessional rate as applicable to them under Exhibit P1; even if otherwise entitled to the benefit. On that reasoning, even if the petitioners had been granted a concession as per Exhibit P1, they could not claim the same concessional rates to be applied for the excess power consumed over and above the quota fixed on them by the licensee, the Board. 5. The other contentions urged by the petitioners are that the petitioners were not heard in the matter and that the claim is barred by limitation. The petitioners rely on the decision in _**Cyriac v. K.S.E.Board**_ **[1989 (1) KLT 920].** - 4 - WP(C) No.1921 of 2007 6. In _**Cyriac,**_ the issue was with respect to the difference found in meter reading on subsequent tests of the meter, which could have been done only after notice. The petitioner therein, had all along, after the installation of the meter, been regularly paying the bills, which were sought to be revised without any prior notice, that too from the very date of installation. In such circumstance, this Court found that violation of principles of natural justice would vitiate the bills issued on revision of the earlier bills issued and paid by the consumer. Here, there is no question or confusion raised in the matter of meter reading. The ground raised is, excess consumption of energy over and above the quota fixed; which the petitioners cannot dispute. The declaration in _**Cyriac,**_ hence, would not be applicable. 7. On the question of limitation, it is contended that the dues between 01.01.1996 to 15.12.1997 was sought to be recovered by the bills issued in the year 2000. The limitation insofar as recovery proceedings is brought in by Section 56(2) of the Indian Electricity Act, 2003. This Court has, in _**Abdul Nazer v. K.S.E.B.**_ **[2006 (1) KLT 811],** held that it would have only WP(C) No.1921 of 2007 - 5 - prospective effect. Having found the contentions of the petitioners to be unsustainable, the writ petition would stand dismissed. The petitioners would be issued notice of demand by the Board and the petitioners would be granted deduction of the amounts already paid, if any, as per the interim orders of this Court. Parties are left to suffer their respective costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]