IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 2773 of 2003(E)
1. P.P.GEORGE AND SONS, N.H.47, ANGAMALY,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. KERALA STATE ELECTRICITY BOARD,
3. DEPUTY CHIEF ENGINEER,
4. ASSISTANT EXECUTIVE ENGINEER,
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent :SRI.C.C.THOMAS, SC, K.S.E.B
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :06/04/2009
O R D E R
K. SURENDRA MOHAN, J
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O.P. NO: 2773 OF 2003
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Dated this the 6th April, 2009.
JUDGMENT
As per G.O(MS)4/92/PD dated 6.2.1992 the Government of
Kerala announced a concessional power tariff and electricity duty to
industries, as a measure of incentive. The concessional tariff was
applicable only to units that started production between 1.1.1992
and 31.12.1996. Though the petitioner did not start commercial
production before 31.12.1996, he claims the benefit of the
concessional tariff alleging that he had started commercial
production in June 1996, using a diesel generator set installed by
him. On the above basis, he challenges the denial of the
concessional rate of electricity tariff to him.
2. The petitioner is running a printing press unit at
Angamaly, which is registered as a small scale industrial unit. The
unit had applied for electrical connection and as per Ext.P4
proceedings, the Executive Engineer K.S.E.Board sanctioned the
work on an estimate of Rs.1,16,640/- on 19.6.1995. Thereafter,
the concerned Minister had directed the grant of electricity
connection to the petitioner on priority basis, as per his letter dated
O.P.2773/2003 2
24.11.1995, which is Ext.P5. The petitioner alleges that the entire
work for giving electric connection to the petitioner was over in
1996 itself but, supply was delayed without any justification and
finally, he was granted electric connection only on 1.1.1997. But,
according to him, the petitioner started commercial production
before the said date using a generator set installed by him, having
a capacity of 62.5 KVA. Since the petitioner was not given electric
connection before 31.12.1996, he submitted Exts.P8 and P9
representations and also filed O.P.19444/2001 praying for the
issue of appropriate directions from this Court, commanding the
respondents to collect only the pre 1992 tariff rates from the
petitioner. During the pendency of the said Original Petition a bill
for Rs.75,095/- was issued to the petitioner which was also
challenged by him before this Court in a Miscellaneous Petition filed
in the writ petition referred to above. This Court had granted an
order of interim stay conditional on payment of an amount of
Rs.35,000/-. Subsequently the original petition was disposed of as
per Ext.P11 judgment directing the Deputy Chief Engineer, KSEB to
consider and dispose of the representations of the petitioner within
a period of three months of the date thereof.
3. The grievances of the petitioner were considered in
O.P.2773/2003 3
compliance with the directions of this Court and orders were
passed by the Deputy Chief Engineer, KSEB which is Ext.P13. As
per Ext.P13 it has been found that the petitioner is not entitled to
the concessional tariff rates claimed by him. He has also been
found liable to pay the amount demanded as electricity charges
from him. The petitioner has filed this Original Petition challenging
Ext.P13 order and claiming that he is entitled to the benefit of the
concessional pre 1992 tariff rates announced by the Government of
Kerala as per G.O(MS) 4/92 dated 9.2.1992. Though this petition
was filed in the year 2003 no counter affidavit has been filed on
behalf of the respondents. It is seen from the proceedings that
though sufficient opportunity was granted to the respondents, they
have not chosen to file a counter affidavit till date. No prayer for
time to file counter affidavit was also made by the counsel for the
respondents. Therefore, I have heard Shri. T.M.Abdul Latiff,
counsel for the petitioner and the standing counsel for the
KSEBoard.
4. The counsel for the petitioner submitted that, the
petitioner was entitled to be given the benefit of the pre 1992
concessional tariff. According to him the unit of the petitioner was
started before 31.12.1996. The petitioner claims that he had
O.P.2773/2003 4
executed a minimum guarantee agreement on 29.7.1995. The
Electrical Inspector, Ernakulam permitted energisation of his
generator and the electrical installation on 27.6.1996 and the unit
started commercial production immediately. The petitioner did
everything on his part and started commercial production using the
generator set before 1.1.1997. According to him the petitioner had
invested money and established the unit on the expectation that
electrical energy would be supplied to him at the pre 1992 tariff
rates. He contends that the concession made available to
industrial units should not be denied to him for the reason that the
petitioner had done everything that was to be done by him before
31.12.1996 and it was not due to any fault of his that the
energisation of electrical supply to his unit was delayed beyond the
cut off date of 31.12.1996.
5. The claim of the petitioner is opposed by the standing
counsel for the respondents. According to the counsel, the
concessional rate was announced by the State Government as early
as on 6.2.1992. Even at that time, the Government had announced
that the concession would be available only to units that started
commercial production between 1.1.1992 and 31.12.1996.
Therefore, the cut off date was well within the contemplation of the
O.P.2773/2003 5
petitioner even when he started preparations for establishing his
unit. Since the petitioner’s unit was not energised before the cut
off date, he was not entitled to the concession. According to the
counsel, in Ext.P13, the impugned order, all the contentions of the
petitioner have been considered. The counsel for the respondents
contended that, it was not due to any fault on the part of the KSE
Board that the unit was not given electric connection before
31.12.1996. It is further contended that the petitioner had not
submitted any application for availing the concessional tariff rate at
any time. He has made his claim for the first time only in
O.P.19444/2001 filed by him. Therefore, it is pointed out that the
original petition is liable to be dismissed.
6. It is seen from Ext.P13 order that the equipments for
providing supply to the petitioner’s unit was received only on
27.12.1996. The installation work was completed on 30.12.1996
and the same was inspected by the Electrical Inspector on 1.1.1997.
The installation was energised on getting oral sanction of the
Electrical Inspector on 1.1.1997 itself. The Deputy Chief Engineer
who considered the above contention has found that the records do
not show any delay in giving power connection to the petitioner.
The dates mentioned above would show that there was no delay on
O.P.2773/2003 6
the part of the authorities in giving connection to the petitioner’s
unit. There is nothing on record to show that the above statements
in Ext.P13 are false. The above question being a pure question of
fact, the finding of the Deputy Chief Engineer in Ext.P13 on this
point has to be accepted. The petitioner has also not disputed the
above statements contained in Ext.P13, in the above Original
Petition. In the absence of any evidence or material to show that
the respondents were at fault in delaying grant of electric
connection to the petitioner’s unit, the above finding in Ext.P13 is
only to be upheld.
7. The next question to be considered is whether the claim of
the petitioner that he has to be granted the Ext.P3 concessional
tariff for the reason that he had started commercial production
well before 31.12.1996. A copy of the G.O dated 6.2.1992 has
been handed over to me by the parties, in court. It is to be noted
that the concession granted by the Government is in respect of
consumption of electrical energy by industrial units. The same is
granted to units which started commercial production between
1.1.1992 and 31.12.1996. Since the concession granted is in
respect of electrical energy consumed by industrial units that
started commercial production during the relevant period, the
O.P.2773/2003 7
concession cannot be made available to units which do not
commence consumption of energy during the relevant period.
Admittedly the petitioner’s unit has not consumed any electrical
energy before 31.12.1996. According to him, he has commenced
commercial production using a diesel generator. There is
absolutely no evidence to show that he had started commercial
production before 31.12.1996. Though the petitioner has
produced Ext.P17 certificate of registration dated 10.7.1996 issued
under the Kerala General Sales Tax Act, the same does not show
that he has started commercial production. Exts.P18 and P19 are
also not acceptable as evidence of commencement of commercial
production. It therefore follows that the petitioner has not been
able to produce any evidence of commencement of commercial
production before 31.3.1996.
8. Apart from the above, it is common knowledge that
commercial production of an industrial unit by utilising power
generated by diesel generators is not at all viable. That is the
reason why all industrial units apply for regular electric connection.
The diesel generators are meant only as a stand by, to prevent loss
that may be caused by disruption of production due to failure of
electric supply. The diesel generator installed by the petitioner
O.P.2773/2003 8
does not have the capacity to meet the power requirements of the
petitioner. Even if it is assumed that the unit had started
production using a generator set, the same can only be presumed
to have been in anticipation of getting a regular electric connection.
Therefore, even if it is assumed that the petitioner had started
production using a diesel generator set, the same would not entitle
him to the benefit of the concessional pre 1992 tariff rates
announced by the Government of Kerala.
9. I am supported in this reasoning by the decision of the
Hon’ble Supreme Court reported in Southern Ispat Ltd. v. State of
Kerala and others {(2004) 4 SCC 68}. In the said decision, the very
same notification dated 6.2.1992 was considered by the Apex
Court. The industrial unit in the said case claimed the benefit of
the Government order alleging that production had been started
before 31.12.1996 using a diesel generator set. The unit had also
produced returns submitted to the commercial taxes department,
the assessment order issued by the sales tax department and the
balance sheet of the company as on 31.3.1997 to show that it had
started commercial production. However, the said documents were
all rejected as unreliable and self-serving by the Apex Court. It has
also been held that the question whether the unit had started
O.P.2773/2003 9
commercial production before the appointed date was a question of
fact which was not liable to be interfered with.
10. In the above case also this Court had directed the Deputy
Chief Engineer KSE Board to consider the grievance of the petitioner
and the order passsed after such consideration is Ext.P13. The
authority who is the fact finding body has determined the questions
of fact against the petitioner. The said findings do not call for any
interference in this original petition. The Original Petition fails and
is hereby dismissed. No costs.
K. SURENDRA MOHAN
Judge
jj
O.P.2773/2003 10
K. SURENDRA MOHAN, J.
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O.P.NO: 2773 OF 2003-E
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JUDGMENT
Dated: 6th April, 2009.