## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
## **TUESDAY, THE 14TH DAY OF FEBRUARY 2017/25TH MAGHA, 1938**
## **WP(C).No. 2701 of 2009 (V)**
**---------------------------**
**PETITIONER:**
## **-----------**
**MUHAMMED RISA,AGED 27 YERS,**
**S/O.ABDUL MAJEED, RESIDING AT PALLIVILA, PUTHENVEEDU, ARUNUTTIMANGALAM, MANGADU.P.O, KOLLAM.**
**BY ADV. SRI.JOHNSON GOMEZ**
**RESPONDENT(S):**
**--------------**
**1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYTHUTHIBHAVAN,PATTOM P.O, THIRUVANANTHAPURAM.**
**2. THE CHAIRPERSON,CONSUMER GRIEVANCE REDRESSAL FORUM (SOUTH),KOTTARAKKARA,KOLLAM DISTRICT.**
**3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB SECTION, PERINADU, KOLLAM DISTRICT.**
**4. THE ELECTRICITY OMBUDSMAN, CLUB JUNCTION, POOKKATTUPADI ROAD, EDAPPALY TOLL, TOLL JUNCTION, COCHIN-682024.**
**R1,R3 & R4 ADV.SRI SUDHEER GANESH KUMAR, SC**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**K.V.**
**WPC 2701 OF 2009:**
## **----------------**
## **APPENDIX**
## **PETITIONERS EXHIBITS:**
## **---------------------**
- **P1: COPY OF THE LETTER PETITION DATED 18/10/2007 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT.**
- **P2: COPY OF THE PETITION DATED 3/10/2007 FILED BEFORE THE 2ND RESPONDENT.**
- **P2(A) COPY OF THE MODIFIED PETITION DATED 22/10/2007 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.**
- **P3: COPY OF THE ORDER DATED 7/6/2008 PASSED BY THE 2ND RESPONDENT.**
- **P4: COPY OF THE APPEAL DATED 28/7/2008 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.**
- **P5: COPY OF THE JUDGMENT DATED 10TH AUGUST 2008 IN WPC NO 24499/2008 PASSED BY THIS HON'BLE COURT.**
- **P6: COPY OF THE DETAILS ARGUMENT NOTES DATED 25TH OCTOBER 2008 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.**
- **P7: COPY OF THE ORDER DATED 27TH NOVEMBER 2008 IN REPRESENTATION NUMBER 20/2008 BEFORE THE STATE ELECTRICITY OMBUDSMAN ERNAKULAM.**
- **P8: COPY OF THE LETTER DATED 21/3/2001 ISSUED BY THE 3RD RESPONDENT.**
## **RESPONDENTS EXHIBITS: NIL**
- **---------------------**
**/TRUE COPY/**
**P.A.TO JUDGE**
**K.V.**
## K. Vinod Chandran, J
---------------------------------------W.P.(C).No.2701 of 2009-V
----------------------------------------Dated this the 14[th] day of February, 2017
## **JUDGMENT**
The petitioner is aggrieved with Exhibits P3 and P7 orders passed, respectively by the Consumer Grievance Redressal Forum [for brevity “Forum”] and State Electricity Ombudsman [for brevity “Ombudsman”].
2. The petitioner was running an industrial unit which commenced from 1991 onward. In the year 1992, the Government by notification G.O.(MS)4/92/PD dated 06.02.1992 extended concessional power tariff to the manufacturing units which started production between 01.01.1992 and 31.12.1996. There was also a benefit granted to the units who carry out substantial expansion/diversification/modernisation; by making additions to the capital assets, in excess of 25% of the existing capital investment. For units who have carried out such expansion/ diversification/ modernisation, the concession was applicable only to the machineries so set up on expansion/ diversification/ modernisation and the connected/ contract load on that count.
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3. The petitioner is said to have applied for the concessional rate on the basis of the additional connected load of 5 H.P. on 11.12.1996. The concession was granted from 12/1998. However, while granting concession, the pre-1992 tariff as indicated in the Government Order dated 06.02.1992 was granted in toto. Hence, the petitioner enjoyed the concession to the entire connected load and not to the extent of the expansion alone. The same was detected only in 2001. By Exhibit P8, it was found that the petitioner is carrying on a flour mill and not a manufacturing unit. The petitioner, hence, was found to be not even eligible for the concessional rate with respect to the expansion, since the petitioners' unit was not a manufacturing unit. The concession stood declined as on 21.03.2001, i.e., the date of Exhibit P8. However, the petitioner had paid the bills from 12/1998 to 02/2001 on the basis of the pre-1992 tariff by virtue of the concession granted by the Board.
4. Despite the Board having denied the benefit, specifically by Exhibit P8, the Board took no proceedings to assess the petitioner for the shortfall in payment of the electricity bills. It
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was by Exhibit P1, in the year 2007, that the said attempt was made. A bill was issued for short assessment from 12/1998 to
02/2001 and a total amount of Rs.77,178/- was demanded. The petitioner approached the Forum, which passed Exhibit P3 order.
5. In Exhibit P3 order, the bill dated 29.09.2007 for Rs.77,178/- was set aside. The Board was directed to reconsider the eligibility to the concessional pre-1992 power tariff already allowed to the petitioner, restricting it to the extent of expansion/ diversification/ modernisation made on the existing load as provided in the Government Order of 1992. The under charging, if any, on account of the wrong application of the concessional tariff to the entire connected load was directed to be revised in accordance with the provisions under Clause 24(3) and 24(5) of the Electricity Kerala State Electricity Supply Code, 2005 [for brevity “Supply Code, 2005”]. The Board did not challenge the aforesaid order.
6. The petitioner challenged Exhibit P3 order of the Forum before the Ombudsman, raising two contentions; (i) that the direction to proceed for short assessment under the Supply Code,
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2005 cannot be sustained, since if the Supply Code is applied to the case of the petitioner for short assessment for a period prior to the Supply Code, then necessarily Clause 18(8) of the Supply Code would also have application insofar as the limitation provided under the Supply Code of two years; and (ii) that the Forum having set aside the bill, there could not have been any further direction to short assess the petitioner on the basis of the Supply Code of 2005.
7. In the appeal, the Ombudsman set aside the entire order of the Forum and restored the bills issued by the Board. It is to be noticed that the appeal was against the order of the Forum, by the petitioner alone and the Board had not challenged it. In such circumstances, there is no tangible reason to sustain the restoration of the bill raised by the Board, which was set aside by the Forum. The appellate orders at Exhibit P7, hence, is found to be not sustainable. Considering the passage of time, this Court is not inclined to remand the matter to the Ombudsman. Suffice it, to consider the contentions raised by the petitioner against Exhibit P3 order of the Forum.
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8. The Forum directed concessional power tariff to be applied to the extent of expansion/addition made to the unit. The said order was not challenged by the Board before the Appellate Authority. In fact, the Board had declined the entire concession on the ground that the petitioner's unit was not a manufacturing unit and hence not entitled to the concessional rate as per the G.O. of 1992. The Board has not challenged the order of the Forum before the Appellate Authority or before this Court and the present writ petition is also filed by the petitioner. Hence, the petitioner would be entitled to the concessional rate to the extent of the expansion carried out in 1996, from 12/1998 to 02/2001.
9. The further direction was to proceed for under charging on account of the wrong application of the concessional tariff under the provisions of the Supply Code of 2005. Even this cannot be allowed, since the Supply Code 2005 would not be applicable to the prior period and in any event, sub-clause (8) of Clause 18 of the Supply Code provides a limitation of two years. The Board has a contention that the limitation would arise only from the date of billing, which need not be looked into since,
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admittedly, prior to 2003, i.e., prior to the Electricity Act, 2003, what is applicable is Indian Electricity Act, 1910; in which there is no limitation prescribed. Hence, the petitioner could very well be short assessed for the period between 12/1998 to 02/2001 at the regular tariff excluding the expansion made by the petitioner as directed in Exhibit P3 order. Exhibit P3 would hence stand confirmed only with the modification that the short assessment be made under the Indian Electricity Act, 1910 as has been permitted in **2013 KHC 2767 [** _**Principal, Thangal Kunju Musaliar College of Engineering v. KSEB and Others**_ **].**
10. The learned Standing Counsel for the Board submits that in pursuance of Exhibit P3, there was a bill issued by the Board showing an amount of Rs.50,447/-; out of which there is a deduction of Rs.2,000/- granted and the payment made at the time of appeal before the Forum, being Rs.30,000/-, was also deducted and thus what is due is Rs.18,477/-. The Board has a claim that the said amounts would also carry interest. However, this Court is not inclined to permit any levy of interest, since the Board had failed to issue the bill within a reasonable time from the
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date of detection of the ineligibility to concessional tariff. The ineligibility was detected in 2001, as is evident from Exhibit P8. The bills were issued only in the year 2007. After that, proceedings were pending and the petitioner has also paid substantial amounts. In such circumstances, if the petitioner pays Rs.18,477/- [Rupees eighteen thousand, four hundred and seventy seven only] within three months from the date of receipt of a certified copy of this judgment, there shall be no interest levied. However if the same is not paid within the time stipulated, interest would run from the date when the amounts become due, i.e., 30 days from the date of issuance of bill; till payment.
The writ petition would stand disposed of with the above directions. No costs.
**Sd/-** K.Vinod Chandran Judge.
vku/-
[ true copy ]
