Southern Ispat and Energy Ltd. v. State of Kerala, Kerala State Electricity Board and The Chairman, Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 30TH DAY OF JUNE 2016/9TH ASHADHA, 1938** **WP(C).No. 4764 of 2013 (U) ---------------------------** **PETITIONER(S): -------------** **M/S.SOUTHERN ISPAT AND ENERGY LTD., 19/629(1), 'SREYAS', NEAR YAKKARA SCHOOL BUS STOP, WEST YAKAARA, PALAKKAD PIN-678 001, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, K.K.AGARWAL, S/O.LATE M.R.AGARVAL, 307, 'LOVEDALE', CHANDRA NAGAR EXTENSION, PALAKKAD DISTRICT.** **BY ADVS.SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVANAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004.** **3. THE CHAIRMAN KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 004. R2 & 3 BY ADV. SRI.RAJU JOSEPH (SR.) R2 & 3 BY ADV. SRI.K.T.PAULOSE, SC, KSEB R BY GOVERNMENT PLEADER R BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.05.2016 THE COURT ON 30-06-2016, DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 4764 of 2013 (U) ---------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS -----------------------** **EXHIBIT P1: TRUE COPY OF THE GO(MS)71/90/ID DT.21-5-1990. EXHIBIT P2: TRUE COPY OF THE GO(MS) NO.4/92/PD DT.6-2-1992. EXHIBIT P3: TRUE COPY OF THE LETTER FOR POWER CONNECTION DT.17-7-1995.** **EXHIBIT P4: TRUE COPY OF THE LETTER FROM THE CHAIRMAN, KSEB TO THE MINISTRY OF STEEL DT.16-7-1996. EXHIBIT P5: TRUE COPY OF THE POWER ALLOCATION LETTER DATED 10-9-1996.** **EXHIBIT P6: TRUE COPY OF THE LETTER DATED 24-9-1996 DEMANDING OYEC SCHEME CHARGES. EXHIBIT P7: TRUE COPY OF THE LETTER DT.11-11-1996 FOR ACCEPTING THE OYEC CHARGES. EXHIBIT P8: TRUE COPY OF THE LETTER DATED 12-11-1996 OF THE EXECUTIVE ENGINEER. EXHIBIT P9: TRUE COPY OF THE LETTER DATED 11-12-1996 OF THE DEPUTY CHIEF ENGINEER. EXHIBIT P10: TRUE COPY OF THE RECEIPT DATED 13-12-1996. EXHIBIT P11: TRUE COPY OF THE ORDER DT.12-12-1996. EXHIBIT P12: TRUE COPY OF THE RECEIPT DT.16-12-1996. EXHIBIT P13: TRUE COPY OF THE LETTER DT.23-5-1997 REJECTING HC ORDER.** **EXHIBIT P14: TRUE COPY OF THE APPLICATION FOR APPROVAL OF DG SET DT.12-9-1996.** **EXHIBIT P15: TRUE COPY OF THE SANCTION LETTER DT.6-12-1996 FOR DG SET.** **EXHIBIT P16: TRUE COPY OF THE LETTER DT.6-12-1996 INFORMING PANCHAYAT ABOUT DG SET INSTALLATION. EXHIBIT P17: TRUE COPY OF THE LETTER DT.22-12-1997 OF DEPUTY CHIEF ENGINEER. Msv/** **-2-** **-2-** **WP(C).No. 4764 of 2013 (U) ---------------------------** **EXHIBIT P18: TRUE COPY OF THE JUDGMENT IN APPEAL (CIVIL) NO.5343/2002.** **EXHIBIT P19: TRUE COPY OF THE LETTER DT.28-11-1996 BY THE CHIEF ENGINEER TO THE SECRETARY (RTI)** **EXHIBIT P20: TRUE COPY OF THE BOARD ORDER NO.2184/96 (TCI/S/2086/92) DT.20-9-1996.** **EXHIBIT P21: TRUE COPY OF THE LETTER FROM TMR KSEB (RTI)** **EXHIBIT P22: TRUE COPY OF THE JUDGMENT IN OP 6108/2000.** **EXHIBIT P23: TRUE COPY OF THE APPLICATION POWER ALLOCATION DTD.17.7.1995.** **EXHIBIT P24: TRUE COPY OF THE LETTER TO KSEB DTD.23.12.1996 STATING NEAR COMPLETION OF ERECTION WORKS.** **EXHIBIT P25: TRUE COPY OF THE ORDER DTD.11.4.1997 IN OP.NO.6436 OF 1997.** **EXHIBIT P26: TRUE COPY OF THE ORDER DTD.19.8.1997 IN OP.12597 OF 1997.** **EXHIBIT P27: TRUE COPY OF THE LETTER DTD.15.1.2013 OF KSEB RECEIVED UNDER RTI GIVING THE DATES OF ENERGISATIONS.** **RESPONDENT(S)' EXHIBITS:** **------------------------** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.4764 of 2013 ---------------------------------------- Dated this the 30[th] day of June 2016 ## **J U D G M E N T** This writ petition is filed seeking the following reliefs: _“i) To declare that the petitioner has been discriminated against when they have been denied of the benefit of Exhibits P1 and P2 Government Orders in spite of being fully ready for commencement of commercial production with power when other industries were granted the benefit by energising the power in time to those units;_ _ii) Issue writ of mandamus order or direction commanding the 2[nd] respondent to take action to compensate the petitioner due to the illegal discrimination adopted by the 2[nd] respondent against the petitioner thereby incurring loss to them by giving exemption from enhanced power tariff charge for 5 years;_ _iii) Grant full costs to the petitioner for the institution and conduct of this writ petition.”_ 2. The facts involved in the writ petition would disclose that the petitioner, being a company, had set up a steel plant in State of Kerala based on the concessions extended in terms of W.P.C.No.4764/2013 2 Government Orders dated 21/05/1990 (Ext.P1). Petitioner was also offered various incentives based on Government Order dated 06/02/1992. Petitioner's project required a power allocation of 2450 KVA. Request was made to the 2[nd] respondent Kerala State Electricity Board in terms of P3 letter dated 17/07/1995. However, power allocation was granted as per Ext.P5 dated 10/09/1996 to the extent of 1950 KVA at 11KV with contract demand of 1950 KVA to their factory. It is contended that even after power allocation, energisation was not granted. In the meantime, petitioner has invested more than Rs.400 Lakhs for setting up of the unit and was ready for starting commercial production. The petitioner was informed that the estimate for HT supply would come to Rs.8,73,200/-. Though the amount was offered by the petitioner, it was not received by the petitioner. Petitioner had sent various representations. But no action was taken in the matter. However, the amount was received as per receipt dated 13/12/1996. Still further amounts were demanded which was paid on 16/12/1996. Thereafter also the agreement was not executed, but, in the meantime, security deposit of Rs.11,97,900/- was demanded. Since it was felt that the Board W.P.C.No.4764/2013 3 was not intending to energise the unit before the cut off date, petitioner approached this Court by filing O.P.No.6436/1997. The original petition was disposed on 11/04/1997 directing the 2[nd] respondent to take a decision in the matter. The 2[nd] respondent, by letter dated 23/05/1997, rejected the request stating that it is not technically feasible to energise the Unit of the petitioner, due to acute shortage of power. Petitioner submits that the company started commercial production with the help of a Diesel Generator set. Again, additional security was demanded, which was deposited. Still, the unit was not energised. Petitioner filed W.P.C.No.15432/1998 and by judgment dated 05/02/1999, this Court directed the 2[nd] respondent to energise the factory immediately which was done on 19/02/1999. However, electricity charges were demanded in the then prevailing enhanced rate without granting exemption as per Ext.P1. Petitioner filed O.P.No.9007/1999 seeking the benefit in terms of Ext.P1 Government Order. The writ petition was dismissed on the ground that the petitioner had not commenced commercial production. Aggrieved by the same, writ appeal was filed, which confirmed the judgment of the learned Single Judge. Against the W.P.C.No.4764/2013 4 judgment in the writ appeal, the petitioner had filed SLP No.6244/2002. The Apex Court dismissed the SLP as per Ext.P18 judgment. Petitioner submits that petitioner was compelled to pay the power tariff at the enhanced rate. Petitioner further submits that, later it was understood that there was discrimination in the matter of energising the industries before 31/12/1996 and the 2[nd] respondent had given energisation to many HT/EHT consumers. Petitioner received information under the Right To Information Act and collected the list of units which were energised between Aug 1996 to Dec 1996. Ext.P21 is the list of industries which were energised on the respective dates shown therein. Petitioner submits that, without any valid reason, the respondents failed to provide energisation to the factory of the petitioner and therefore seeks the reliefs aforesaid. 3. Counter affidavit has been filed on behalf of the respondents wherein it is stated that the writ petition itself is not maintainable as the petitioner had earlier approached this Court by filing O.P.No.9007/1999 claiming Pre-92 Tariff. The said writ petition petition was dismissed and challenging the same, W.A.No.2614/2001 was filed, which was dismissed by the Division W.P.C.No.4764/2013 5 Bench and the Supreme Court also confirmed the judgment in Civil Appeal No.5343 of 2002. Since similar relief has been sought for in the earlier round of litigation, this writ petition is barred by the general principle of res judicata and constructive resjudicata. With reference to Exts.P19 to P21, it is contended that there is nothing to show that the petitioner was discriminated in any manner. In Ext.P21, the list of industries which were energized during August, 1996 to December, 1996 were shown. Only a few are power intensive units and, that apart, applicants in Ext.P21 had applied much earlier and all formalities were completed. Petitioner's unit was not ready to receive power. Further details are also mentioned in para 8 of the Counter affidavit. 4. Learned counsel for the petitioner relies upon the judgment of the Apex Court in **A.P.Steel Re-Rolling Mill Ltd. v. State of Kerala and Others** [(2007) 2 SCC 725], **SVA Steel Re-rolling Mills Ltd. v. State of Kerala and Others** [(2014) 4 SCC 186] and **HiTech Electrothermics and Hydropower Limited v. State of Kerala and Others** [(2003) 2 SCC 716] in order to contend that in all these cases, the Apex Court had W.P.C.No.4764/2013 6 issued certain directions in similar situations to extend concession to petitioners for non-compliance of the promise extended to such persons. Therefore, the petitioner should also be given such benefits, is the contention of the learned counsel for the petitioner. 5. Learned senior counsel for the respondent/Board submits that the writ petition itself is not maintainable. Judgment of the Apex Court in Civil Appeal No.5343/2002 between the petitioner and the Board itself would give a finality to the issues raised. 6. Having heard the learned counsel on either side, I am of the view that the perusal of the judgment of the Apex Court would show that the issues raised by the petitioner is virtually concluded by the judgment of the Apex Court. Petitioner had filed O.P.No.9007/1999, challenging the bill for electricity charges, claiming that the Pre-92 tariff rate should be made applicable. The contention is that delay in sanction and supply of electric energy was on account of the negligent manner in which the Board functioned. That apart, the appellant installed its own Diesel Generator set and commenced commercial production on W.P.C.No.4764/2013 7 14/12/1996. Petitioner also relied upon certain invoices for sales made to customers in the month of Dec 1996 and other documents. The learned Single Judge as well as the Division Bench had concurrently answered against the petitioner. However, the Apex Court examined the factual findings on account of the serious issue involved in the matter. After analyzing the factual circumstances, it was ultimately found as under: _“In these circumstances, we find it difficult to accept the contention of the appellant that 'commercial production' had started in December 1996 by using diesel generator set as alleged. The appellant contends that the certificate issued by the Kerala Financial Corporation dated 11.9.1998 is conclusive evidence of the fact that the appellant had commenced “commercial production” in December 1996. Interestingly, the KFC's certificate is very guarded and states: “This is to certify that Southern Ispat Limited has commenced its commercial production of C.I.Shot and grits with the help of Generator set as Kottayi in Palakkad District on the 14[th] day of December, 1996 as per records submitted by the company.” (Emphasis is_ W.P.C.No.4764/2013 8 _ours)_ _In the first place, we are unable to accept that the certificate issued by the KFC is conclusive in the matter. At the highest, it may be one of the facts to be considered by the KSEB in the light of all other relevant material._ _The High Court has pointed out a series of difficulties in accepting this certificate as conclusive. Firstly, the certificate has been issued only on 11.9.1998. The certificate is issued “To whom so ever it may concern.” There is no reference to the electrical inspector's findings on the matter of conditions of appellant's high tension installations, which was a pre-requisite for the KFC to issue a proper certificate for the purpose of entitlement to the pre-1992 tariff concessions. There is nothing to show that the KFC had made any inquiry of their own. On the contrary, as the certificate shows, the certificate appears to have been issued merely on the basis of record produced by the company. The record produced by the company could not have shown that the appellant company had started commercial production. The High Court has also disbelieved and rejected the other documents relied upon in support of the appellant's case of commencing of_ W.P.C.No.4764/2013 9 _commercial production prior to 31.12.1996._ _The High Court points out the fact that promoters of the appellant company had a factory at Raipur in Madhya Pradesh and the possibility of the Appellant having bought manufactured goods from there and sold them within the State of Kerala to create documents to show that the production started before 1996 could not be ruled out. Even the documents produced by the appellant do not show any continuous 'commercial production' during the period December 1996 to February 1999. We agree with the conclusion of the High Court that it was not sufficient for showing 'commercial production' that some small items were sold by the appellant in December 1996 and 'nil' assessment of sales tax was made and a small excise duty payment was also made. We agree with the High Court's view that these were all selfserving documents created as evidence for commercial production prior to the cut off date 31.12.1996._ _Upon an overall assessment of the facts on record, we are not satisfied that the view taken by the Division Bench of the High Court on facts is so perverse that it requires interference by this Court under Article 136 of the Constitution.”_ W.P.C.No.4764/2013 10 7. Taking into account the aforesaid factual situation, I am of the view that the learned counsel for the respondent/Board is justified in contending that the petitioner cannot raise the very same contention at this point of time. Therefore I am of the view that re-appreciation of the said fact is not required and this writ petition is barred by the general principle of res judicata and constructive res judicata. 8. It is pointed out by the learned counsel for the petitioner that subsequent events in Exts.P19 to P21 gives a fresh cause of action to prove that the petitioner was also eligible for energisation and the contention that during the period of power shortage, no units were energised, is absolutely wrong. In fact, the petitioner's claim in the earlier original petition was on the basis that there was non-compliance of the promise on the side of the Government as well as the Board and the petitioner had complied with all requirements and hence he was entitled for the Pre-92 tariff. This request was apparently negatived on the ground that the petitioner was not ready to receive the energisation and the petitioner had not started commercial production within the specified time. When such issues have W.P.C.No.4764/2013 11 already been answered, I do no think that the petitioner is entitled for any relief in the present writ petition. Further, learned counsel for the petitioner submits that what is tried to be projected in the writ petition is the discrimination meted out against the petitioner. I do not think that such an issue can be considered in the writ petition merely for the reason that some other units were given energisation during the relevant period. Even otherwise such a fact was in existence during the relevant time and having not chosen to raise such grounds at the time of filing the former writ petition, petitioner cannot be permitted to raise such a ground in the present writ petition. Since there is no merit in the contentions raised, this writ petition is dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr