High Court of KeralaSingle Judge2019-08-14Writ petitions disposed of to the limited exten...

Sri Vignesh Chemicals v. State of Kerala; Sri Arjuna Carbides v. State of Kerala

Case / Petition Number:WP(C).No.29816/2015; WP(C).No.23303/2016(K)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2019-08-14
Court Decision / Holding: Resultantly, I order these writ petitions to the limited extent of allowing the petitioners to make objections to the disputed bills; and for such purpose, I direct them to mark appearance in the Office of the Special Officer (Revenue) of the KSEB – the 3rd respondent in both these cases, at 11 am on 26.08.2019 along with their objections, enclosing all documents and materials that they may require to be presented before him; the officer will hear them on that day or another date fixed as per mutual convenience and then decide whether any modification to Ext.P9 in WP(C) No.29816/2016 and Ext.P12 in WP(C) No.23303/2016 is warranted, however, without referring to the Supreme Court judgment in SVA Steel Re-Rolling Mills Ltd. (supra), since it is uncontested that the said judgment is not applicable to the petitioners in these cases. The petitioners are at liberty to pursue all other contentions before the Special Officer (Revenue) under the applicable Government Orders; the exercise shall be completed within three months from receipt of a copy of this judgment and until then all further action against the petitioners based on the impugned bills remains deferred.
Final Disposition: Writ petitions disposed of to the limited extent of allowing objections to the disputed bills before the Special Officer (Revenue); hearing to be fixed; officer to decide whether modifications to the disputed Ext.P9 and Ext.P12 are warranted; no merits adjudication in this judgment; merits to be pursued before the Special Officer under the Government Orders; actions deferred pending review; three months for completion.

Parties to the Case

Appellants / Petitioners

Sri Vignesh Chemicals
Sri Arjuna Carbides

Respondents

State of Kerala
Kerala State Electricity Board
Special Officer Revenue, Kerala State Electricity Board
Tahsildar Recovery Palakkad

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.R. Venkatesh
• Smt. C.R. Vidya
• Sri Keerthivas G. S.
• Sri P.R. Raja

Counsels for Respondents

• Sri Raju Joseph (Sr.)
• Sri Georgekutty Mathew, SC, KSEB
• Government Pleader

Case Synopsis & Summary

These two writ petitions by two small-scale production units challenge bills and seek extension of concessions granted under government orders (1992–1996) shielding new units from power cuts and from electricity duty escalations. Both units had previously been held eligible for the pre-1992 electricity tariff by this court and now contend they should receive the extended benefit beyond the initial five-year period because their supply was curtailed by 50% or more for about 350 days during the designated five-year window. The petitioners argue the extension was permissible under the government orders and, by reliance on the Supreme Court's SVA Steel Re-Rolling Mills decision (2014), should extend to units affected by power cuts even if the earlier order explicitly restricted it. The Kerala State Electricity Board counters that SVA's pronouncement is in personam and not rem, and that the earlier orders already extended benefits to eligible units. The judge does not decide the merits of the larger claims but instead directs a limited remedy: the petitioners may file objections to the disputed bills before the Special Officer (Revenue) of KSEB, who will review calculations under the applicable government orders and determine if any modification to the bills is warranted. The court emphasises that this is not a merits decision and that all further action remains deferred pending the review.

Provisions of Law Cited

Article 226 of the Constitution of India

Legal Doctrines & Maxims

in personam
in rem

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the period of concession extended to 5 years by the Government Orders is available to units that suffered 50% or more power cuts during the designated five-year period. They argued that the Supreme Court's decision in SVA Steel Re-Rolling Mills Ltd. v. State of Kerala (2014) explicitly recognized extension of benefits to units hit by power cuts during the period, and their units having suffered similar conditions should also be eligible. They presented records showing quota fixation and billing under the Board's orders and asserted that the impugned bills do not reflect the extended period and are inaccurate. They claimed that the earlier orders lifting the extension were wrongly applied and that the matter should be resolved by recalculating the electricity dues under the relevant Government Orders. They urged the court to grant them relief by enabling them to present objections with documents before the Special Officer (Revenue) and to permit a limited review of Ext.P9 and Ext.P12 to reflect the correct extension, rather than allowing a merits adjudication in the writ petition.

Contentions of Respondents

The respondents argued that the petitioners seek to rely on SVA Steel by a one-person claim, while the judgment is in personam and rem is not applicable; They submitted that the calculations already show that benefits were extended to units meeting the 50% threshold and that the bills issued reflect those extensions; The petitioners waited several years to challenge the bills, and the court should not entertain belated challenges to the calculations; They contended that the earlier Government Orders restricting extension to units with 50% or more are the controlling rules; If there is any miscalculation, the petitioners could approach the Special Officer (Revenue) for correction; The court could allow a limited opportunity but must not determine merits beyond the scope; The court's role is to ensure due process before the revenue officer.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
SVA Steel Re-Rolling Mills Limited & Others v. State of Kerala & Others	2014 (4) SCC 186	Distinguished	The judgment is noted as in personam and not rem, thus not applicable to the petitioners.
Kerala State Electricity Board, Thiruvananthapuram v. Kerala High Tension & Extra High Tension Industrial Electricity Consumer's Association, Kalamassery & Others	2016 (5) KHC 634	Positive	Cited to support the proposition that the SVA decision is in personam and not rem, influencing the court's reasoning.

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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 DEVAN RAMACHANDRAN** **WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941** ## **WP(C).No.29816 OF 2015** ## **PETITIONER/S:** **SRI VIGNESH CHEMICALS AGED 43 YEARS 636, NEW INDUSTRIAL DEVELOPMENT AREA, KANJIKODE, PALAKKAD 678621, REPRESENTED BY ITS PROPRIETOR, R.T.SATHISH.** **BY ADVS. SRI.P.R.VENKETESH SMT.C.R.VIDYA SRI.KEERTHIVAS G. SRI.P.R.RAJA** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS POWER SECRETARY, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**KERALA STATE ELECTRICITY BOARD**| ||**REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM,**| ||**PATTOM, THIRUVANANTHAPURAM-695001.**| |**3**|**SPECIAL OFFICER REVENUE**| ||**KERALA STATE ELECTRICITY BOARD, VYDYUTHI**| ||**BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695001.**| ||**R1 BY ADV. SRI.RAJU JOSEPH SR.**| ||**R1 BY SRI.GEORGEKUTTY MATHEW, SC, KSEB**| ||**R2 BY ADV. SRI.RAJU JOSEPH (SR.)**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.08.2019, ALONG WITH WP(C).23303/2016(K), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.29816/2015 & 2330/2016(K) ..2.. **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941** ## **WP(C).No.23303 OF 2016(K)** ## **PETITIONER/S:** **SRI ARJUNA CARBIDES AGED 59 YEARS PAZHUKKANIKALAM, VENGODI P.O., PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER, K. PALANI SWAMY, S/O. A KUPPPU SWAMY.** **BY ADVS. SRI.P.R.VENKETESH SRI.G.KEERTHIVAS** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ITS POWER SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 001. 3 SPECIAL OFFICER REVENUE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 4 TAHSILDAR RECOVERY PALAKKAD PIN-678 001. R1 BY GOVERNMENT PLEADER R1 BY ADV. SRI.RAJU JOSEPH SR. R1 BY SRI.GEORGEKUTTY MATHEW, SC, KSEB R2 BY ADV. SRI.RAJU JOSEPH (SR.)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.08.2019, ALONG WITH WP(C).29816/2015(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.29816/2015 & 2330/2016(K) **==> picture [31 x 8] intentionally omitted <==** ## **--------------------------------------** **WP(C) Nos. 29816/2015 & 23303/2016** **--------------------------------------** ## **JUDGMENT** These two writ petitions have been filed by two Small Scale Industries seeking the benefits under certain applicable Government Orders of the years 1992 to 1996, whereby certain concessions were offered to new Production Units exempting them from power cut and escalation in electricity duty etc. 2. The petitioners say that both of them have been declared to be entitled to the pre-1992 Electricity Tariff by the judgments of this Court and therefore, that the only issue now left is whether they are eligible to the extension of the period of initial five years granted to them, on account of the fact that electricity supply to them was disrupted to an WP(C).Nos.29816/2015 & 2330/2016(K) **==> picture [31 x 8] intentionally omitted <==** extent of 50% and more for about 350 days. They, therefore, say that the bills for electrical consumption, impugned in these writ petitions, issued by the Special Officer (Revenue) of the Kerala State Electricity Board (“KSEB” for short), namely Ext.P9 in WP(C)29816/2015 and Ext.P24 in WP(C) No. 23303/2016, are not accurate, because, if this extension is granted, then no amounts will be due from them. They, however, concede that both of them have received extension for about 167 days, but that they are entitled to the deficit of 183 and 186 days respectively. It is in such manner, the petitioners impugn the afore mentioned bills now issued to them by the KSEB. 3. In answer to the afore submissions of Sri.P.R.Venketesh – learned counsel for the petitioners, Sri. Raju Joseph – learned senior counsel instructed by the learned Standing WP(C).Nos.29816/2015 & 2330/2016(K) **==> picture [31 x 8] intentionally omitted <==** Counsel for the KSEB, submits that the foundational basis of the petitioners' allegations in these writ petitions appears to be that they entitled to the benefit of the declarations of law by the Hon'ble Supreme Court in the judgment in **SVA Steel Re-Rolling Mills Limited & Others** v. **State of Kerala &** **Others** [2014 (4) SCC 186], whereby the Hon'ble Court declared that the petitioner Units therein, which had suffered power cut during the designated period, are also entitled to extension and that the earlier Government Order, which restricts such benefits only to those Units, which had suffered 50% or above of such power cut has been found to be untenable, is not applicable to the petitioners herein, because the said judgment is a one delivered in _personam_ and not in _rem_ . He cites a Division Bench decision of this Court in **Kerala state Electricity Board,** WP(C).Nos.29816/2015 & 2330/2016(K) **==> picture [31 x 8] intentionally omitted <==** **Thiruvananthapuram** v. **Kerala High Tension & Extra High Tension Industrial Electricity** ## **Consumer's Association, Kalamassery & Others** [2016 (5) KHC 634] and drew my attention to paragraph 21 of the said judgment, wherein the learned Bench has declared unequivocally that the judgment in **SVA Steel Re-Rolling Mills Limited** ( _supra_ ) is one in _personam_ and not in _rem._ He says that, therefore, the petitioners cannot seek any benefit based on this judgment. 4. On the issue of the earlier Government Order granting extension to Units, which have suffered 50% or more of power cut is concerned, he says that the calculations on record would clearly show that both the petitioners herein were given such benefits without any reservation. He, therefore, says that the impugned bills are without fault; that the allegations made by the petitioners WP(C).Nos.29816/2015 & 2330/2016(K) **==> picture [31 x 8] intentionally omitted <==** in these writ petitions are very vague and unsupported by cogent or reliable evidence and consequently, prays that these writ petitions be dismissed. 5. In reply to the afore submissions of the learned senior counsel, Sri.P.R.Venkatesh submits that contrary to the contentions of the KSEB, his clients are not seeking the benefit of the judgment in **SVA Steel ReRolling Mills Limited** ( _supra_ ), but only that were offered to them under the Government Orders, because they had suffered 50% and more of power cut during the designated five year period. He says that the petitioners have placed on record certain additional documents, along with the interim applications filed in these cases, which are the orders fixing the quota for electric consumption and the invoices, which would clearly indicate that even admitted eligible benefits have not been WP(C).Nos.29816/2015 & 2330/2016(K) **==> picture [31 x 8] intentionally omitted <==** given to them. He says that his clients will be in a position to convince the competent Authority if such an opportunity is given to them. 6. The learned senior counsel – Sri.Raju Joseph refutes the afore submissions by pointing out to the documents that are relied upon by the petitioners; but then submits rightly that these are not matters into which this Court can enter or delve into, while acting under Article 226 of the Constitution of India. He says that the petitioners, having waited all these while without raising any objection against the impugned bills, cannot be found to be justified in seeking that they be given an opportunity to take up all these at this belated stage. He, however, says that if the petitioners only require a limited liberty of convincing the Special Officer (Revenue) of the KSEB that the impugned bills are WP(C).Nos.29816/2015 & 2330/2016(K) **==> picture [31 x 8] intentionally omitted <==** inaccurate on account of wrong calculations, then, such an opportunity may be given, but restricting it to that and nothing more. 7. I have considered the afore submissions and since it is now obvious that the disputes between the parties are with respect to the manner in which the benefits under the Government Orders ought to have been given to the petitioners and the calculations and the methodology used for such purpose by the Special Officer (Revenue) of the KSEB, I deem it appropriate to accede to the suggestion of the learned senior counsel and to permit the petitioner to approach the said Authority, making their objections, so that he can then decide whether the figures in the impugned bills have been arrived at correctly, in terms of the Government Orders restricting extension to Units, which have suffered 50% or more power cut and, if so necessary, review the WP(C).Nos.29816/2015 & 2330/2016(K) **==> picture [37 x 8] intentionally omitted <==** calculations thereunder. Resultantly, I order these writ petitions to the limited extent of allowing the petitioners to make objections to the disputed bills; and for such purpose, I direct them to mark appearance in the Office of the Special Officer (Revenue) of the KSEB – the 3[rd] respondent in both these cases, at 11 am on 26.08.2019 along with their objections, enclosing all documents and materials that they may require to be presented before him and the said officer will, thereupon, hear them on that day or any other day to be fixed as per mutual convenience and then decide whether any modification to Ext.P9 in WP(C) No. 29816/2016 and Ext.P12 in WP(C) No.23303/2016 is warranted, however, without referring to the judgment of the Hon'ble Supreme Court in **SVA Steel Re-Rolling Mills Limited** ( _supra_ ), since it is uncontested that ## WP(C).Nos.29816/2015 & 2330/2016(K) **==> picture [37 x 8] intentionally omitted <==** the said judgment is not applicable to the petitioners in these cases. The afore exercise shall be completed by the 3[rd] respondent within a period of three months from the date of receipt of a copy of this judgment and it is needless to say that until such time, all further action being pursued against the petitioners, based on the impugned bills, will stand deferred. I further clarify that I have not considered the merits of the contentions of the rival parties affirmatively in this judgment and that the petitioners are at liberty to pursue all of them before the Special Officer (Revenue) on the strength of the applicable Government Orders, in terms of this judgment. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** Bka/16.08.2019 WP(C).Nos.29816/2015 & 2330/2016(K) ..12.. ## **APPENDIX OF WP(C) 29816/2015** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 P1 : TRUE COPY OF THE JUDGMENT DT.3-32005 IN OP 30633/2000 AND WPC 40528/2003 OF THIS HON'BLE COURT.** **EXHIBIT P2 P2 : TRUE COPY OF THE ORDER DT.13-72011 IN CIVIL APPEAL NO.2262/2007 OF THE HON'BLE SUPREME COURT.** - **EXHIBIT P3 P3 : TRUE COPY OF THE RR NOTICE DT.285-2004 ISSUED BY THE KSEB TO THE PETITIONER.** - **EXHIBIT P4 P4 : TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO.10103 TO 10106 OF 2010 IN M/S.SVA STEEL REROLLING MILLS LTD. VS.STATE OF KERALA REPORTED IN 2014(4) SCC 186.** **EXHIBIT P5 P5 : TRUE COPY OF THE LETTER DT.19-121996 SHOWING THE POWER CUT EXPERIENCED BY THE PETITIONER'S UNIT AND FIXING OF THE QUOTA BY THE BOARD.** **EXHIBIT P6 P6 : TRUE COPY OF THE LETTER DT.9-91997 SHOWING THE POWER CUT EXPERIENCED BY THE PETITIONER'S UNIT AND FIXING OF THE QUOTA BY THE BOARD.** **EXHIBIT P7 P7 : TRUE COPY OF THE TABULAR STATEMENT SHOWING THE CALCULATION BASED ON THE POWER CUT EXPERIENCED BY THE PETITIONER'S UNIT.** **EXHIBIT P8 P8 : TRUE COPY OF THE CERTIFICATE 1- 10-1997 ISSUED BY THE GENERAL MANAGER, DIC, PALAKKAD IN FAVOUR OF THE PETITIONER.** WP(C).Nos.29816/2015 & 2330/2016(K) ..13.. **EXHIBIT P9** **P9 : TRUE COPY OF THE LETTER DT.15-92015 ALONG WITH STATEMENT ISSUED BY THE KSEB.** **EXHIBIT P10 TABULAR STATEMENT SHOWING BALANCE IN THE ACCOUNT OF THE PETITIONER. EXHIBIT P11 TRUE COPY OF THE BILLS FOR THE PERIODS 12/96, 1/97, 2/97, 3/97 AND ALSO FOR 9/97, 10/97, 11/97 AND 12/97 EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 25.02.2013 IN WP(C) NO.37704/2010 OF THIS HON'BLE COURT** WP(C).Nos.29816/2015 & 2330/2016(K) ..14.. ## **APPENDIX OF WP(C) 23303/2016** ## **PETITIONER'S/S EXHIBITS:** **EXT. P1 TRUE COPY OF THE JUDGMENT DATED 3.3.2005 IN W..C NO. 4124/2004 OF THIS HON'BLE COURT AND CONNECTED WRIT PETITIONS. EXT. P2 TRUE COPY OF THE ORDER DATED 13.7.2011 IN CIVIL APPEAL NO. 2262/2007 OF THE HON'BLE SUPREME COURT. EXT. P3 TRUE COPY OF THE RR NOTICE DATED 28.5.2004 ISSUED BY THE KSEB TO THE PETITIONER. EXT. P4 TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO. 10103 TO 10106 OF 2010 IN M/S SVA STEEL REROLLING MILLS LTD. VS. STATE OF KERALA REPORTED IN 2014(4) SCC 186. EXT. P5 TRUE COPY OF CALCULATION STATEMENT DATED 18.1.1997 FIXING THE POWER CUT QUOTA BY THE BOARD. EXT. P6 TRUE COPY OF CALCULATION STATEMENT DATED 16.6.1997 FIXING THE POWER CUT QUOTA BY THE BOARD. EXT. P7 TRUE COPY OF CALCULATION STATEMENT DATED 17.6.1997 FIXING THE POWER CUT QUOTA BY THE BOARD. EXT. P8 TRUE COPY OF CALCULATION STATEMENT DATED 14.7.1997 FIXING THE POWER CUT QUOTA BY THE BOARD. EXT. P9 TRUE COPY OF CALCULATION STATEMENT DATED 09.09.1997 FIXING THE POWER CUT QUOTA BY THE BOARD. EXT. P10 TRUE COPY OF THE TABULAR STATEMENT FIXING THE POWER CUT QUOTA BY THE BOARD. EXT. P11 TRUE COPY OF THE CERTIFICATE DATED 1.10.1997 FROM THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE.** ## WP(C).Nos.29816/2015 & 2330/2016(K) ..15.. |**EXT. P12**|**SERIES-TRUE COPIES BILLS (6 NOS.) ISSUED**| |---|---| ||**TO THE PETITIONER BY THE BOARD.**| |**EXT. P13**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**23.05.2003 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE SPECIAL OFFICER, REVENUE.**| |**EXT. P14**|**TRUE COPY OF THE ORDER DATED 2.12.2004 IN**| ||**W.P.C. NO. 4124/2004 OF THIS HON'BLE**| ||**COURT.**| |**EXT. P15**|**TRUE COPY OF THE SAID ORDER DATED**| ||**1.10.2015 IN W.P.C. NO.29816/2015 OF THIS**| ||**HON'BLE COURT.**| |**EXT. P16**|**TRUE COPY OF THE ORDER DATED 6.6.2001 IN**| ||**O.P. 30633/2000 OF THIS HON'BLE COURT.**| |**EXT. P17**|**TRUE COPY OF THE RECEIPT DATED 17.1.2005**| ||**EVIDENCING DEPOSIT.**| |**EXT. P18**|**TRUE COPY OF REVENUE RECOVERY DEMAND**| ||**NOTICE NO. 2016/22464/9 DATED 31.3.2016**| ||**ALONG WITH TABULAR STATEMENT OF ACCOUNT**| ||**FROM THE SPECIAL OFFICER, REVENUE, KSEB.**| |**EXT. P19**|**TRUE COPY OF THE GOVERNMENT ORDER DATED**| ||**22.4.2016.**| |**EXT. P20**|**TRUE COPY OF THE RECEIPT DATED 27.6.2016**| ||**EVIDENCING DEPOSIT OF AMOUNT BY THE**| ||**PETITIONER.**| |**EXT. P21**|**TRUE COPY OF THE TABULAR STATEMENT**| ||**SHOWING THE STATEMENT OF ACCOUNT.**| |**EXT. P22**|**TRUE COPY OF THE DEPOSIT OF THE CD ON**| ||**16.9.1996 BY THE PETITIONER.**| |**EXHIBIT P24**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**23.09.2015 RECEIVED FROM THE SPECIAL**| ||**OFFICER (REVENUE) BY THE PETITIONER.**| |**EXHIBIT P25**|**TRUE COPY OF THE LETTER DATED 9.6.2015**| ||**SUBMITTED BY THE PETITIONER BEFORE THE**| ||**SPECIAL OFFICER (REVENUE).**|