IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28560 of 2008(Y)
1. M/S SOLVAR WIRE (P) LTD.,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. SPECIAL OFFICER (REVENUE), KERALA
3. CHIEF ENGINEER, KERALA STATE ELECTRICITY
4. DEPUTY CHIEF ENGINEER,
5. STATE OF KERALA, REPRESENTED BY
6. THE KERALA STATE ELECTRICITY
For Petitioner :SRI.J.JULIAN XAVIER
For Respondent :SRI.C.K.KARUNAKARAN, SC FOR KSEB
The Hon'ble MR. Justice K.M.JOSEPH
Dated :21/10/2008
O R D E R
K.M. JOSEPH, J.
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W.P.(C) No. 28560 OF 2008 Y
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Dated this the 21st day of October, 2008
J U D G M E N T
Prayers in the writ petition are as follows:
(i) call for the records connected
with the case leading to Exts.P5, P9 and P9
(a) and quash the same by issuing a writ of
certiorari
(ii) declare that power restriction is
not applicable in the case of the petitioner in
the light of Ext.P2 order and Ext.P3
rehabilitation package introduced by the 5th
respondent
(iii) direct the respondents 1 to 4 to
refix the quota of the petitioner in the light of
Ext.P8 Board order if power restriction is
inevitable.
2. Ext.P5 is a notice issued to the petitioner fixing the
monthly quota as 810 units. This is on the basis of the interim
order passed by the Regulatory Commission. Ext.P9 is a bill
issued in terms thereof. Ext.P9(a) is the calculation statement
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showing the amount of consumption for which the petitioner is
liable to pay in excess under the interim order of the
Commission and also Ext.P14 dated 24.7.2008.
3. According to the petitioner, the petitioner is a sick
unit and it was forced to stop the production with effect from
15.10.2005. Thereafter, it is only necessary for me to refer
the fact that the connection was restored on 3.3.2008. The
consumption for the month of March 2008 is 1120.
Apparently, Ext.P5 notice is issued taking into consideration
the consumption for the month of March 2008. According to
the petitioner, the petitioner is entitled to be treated as a new
unit within the meaning of clause 2(c) of Ext.P14 order dated
24.7.2008. The petitioner represented the matter before the
3rd respondent vide Ext.P7. In Ext.P7, it is contended that the
3rd respondent took the decision that the petitioner may be
treated as a new consumer and the quota may be fixed
accordingly if the unit was under lock out during the previous
year. According to the petitioner, it is while so, Ext.P9 bill
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came to be issued and Ext.P9(a) calculation statement is
issued.
4. A counter affidavit is filed by the Assistant
Executive Engineer apparently on behalf of the respondents.
It is, inter alia, stated in the counter affidavit as follows. The
supply was under disconnection till 2/08 and consumption for
March 2008 was taken as base average. It is also stated that
the petitioner is considered as a new consumer for quota
fixation because as per Ext.P14, new consumer is one who
started functioning on or after 1.4.2008, for which the base
average is 250 units/KVA contract demand. Of course, they
have set up a case that Ext.P7 was a confidential document
produced. It is stated that the instructions to the 4th
respondent (apparently in Ext.P7) issued by the 3rd
respondent was under the impression that the firm had
consumed only a meager unit after reopening the plant. It is
stated that sufficient details are available and quota of 12668
units was proposed and accordingly Ext.R1(a) is issued.
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5. Petitioner has filed a reply affidavit. Therein the
petitioner has produced Ext.P13 interim order of the
Commission and Ext.P14 order dated 24.7.2008. The
petitioner states that there is no dispute that the production of
the petitioner’s unit was started only during 4/2008 and it is
stated that there is no rationale in the monthly quota fixed by
the 2nd respondent in the case of the petitioner. A further
affidavit is filed by the 3rd respondent herself. Therein, it is,
inter alia, stated that the Board has issued Ext.R1(b) through
which the Board has authorised the Agreement Authority to
look into individual cases and to fix quotas. It is stated that if
the petitioner has any grievance about the fixation of quota,
the same could be raised before the Agreement Authority and
this court need not go into the facts. The 1st respondent also
relies on Ext.R1(c) judgment in another writ petition which is
stated to be issued in similar circumstances. That apart, the
3rd respondent has also stated that the averments in
paragraph 6 of the counter affidavit should be read as follows:
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” In paragraph 6 of the counter
affidavit what is meant was that “This
petitioner is not considered as a new
consumer for quota fixation because as per
B.O. dated 24.7.2008, new consumer is
those who started functioning on or after
1.4.2008. ” The word “not” was not included
due to a typographical error and from the
meaning conveyed by the whole paragraph,
no other meaning was intended or could be
assumed. ”
6. I heard learned counsel for the petitioner Sri.Julian
Xavier and learned senior standing counsel
Sri.C.K.Karunakaran. Learned counsel for petitioner
reiterates the stand that the petitioner is a sick unit and the
petitioner is to be treated as a new unit within the meaning of
clause 2(c) of Ext.P14 and quota may be fixed accordingly.
He would reiterate the fact that the production commenced
only in April 2008 even going by Ext.R1(a). He would further
advance his grievance that if the petitioner is relegated back
to the 4th respondent, he may not get justice there. Learned
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standing counsel would submit that the petitioner will not fall
within the ambit of clause 2(c) of Ext.P14 as the connection
was not given to the petitioner after 31.3.2008. The petitioner
was having a connection much earlier. It came to be
disconnected. The connection was restored on 3.3.2008 by
no stretch of imagination the petitioner can claim the benefit
under clause 2(c). He submits that the consumption pattern
of the petitioner is available for the previous year and clause 2
(a) has set the fixation. Learned standing counsel further
submits that if the petitioner still has a grievance, he can
certainly approach the 4th respondent in terms of Ext.R1(b)
and seek relief.
7. The first question is to be considered is whether
the petitioner will fall under clause 2(c) of Ext.P14. It reads as
follows:
” Clause 2(c) – In respect of industries
provided with connection on or after 1.4.2008,
whose average cannot be worked out; the
consumption as detailed below shall be taken
as the base average consumption to work out
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(i) EHT Consumer – 400 Unit/KVA –
Contact Demand per month
(ii) HT Consumer – 250 Units/KVA –
Contact Demand per month.”
8. I am not impressed by the contention of the
petitioner that the petitioner will fall within the ambit of clause
2(c). Clause 2(c) will apply only if a connection is granted
after 1.4.2008. Admittedly, the petitioner was an existing
consumer. The petitioner was given the connection prior to
1.4.2008. The petitioner’s connection came to be dismantled
and reconnected on 3.3.2008. I am of the view that in this
case it cannot be treated as a connection provided after
1.4.2008. If that be so, I would not lay any store by the
noting in Ext.P7 by the 3rd respondent that the petitioner may
be treated as a new consumer. It is certainly not open to the
3rd respondent to act against the terms of the Board order.
When the matter comes up before this court under Article 226
of the Constitution, it should not carry weight, at any rate,
when the terms of Ext.P14 are unambiguously clear.
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Therefore, the case based on noting in Ext.P7 and clause 2
(c) is only to be rejected. Clause 1(a) on which reliance is
placed by the learned standing counsel, in my view, does not
empower the authority to take the consumption for the period
prior to 1.4.2007 also as contended by him. Therefore, it may
be a case where the petitioner may not strictly fall within any
of the clauses. It is in such circumstances, one has to
consider the effect of Ext.R1(b). Ext.R1(b) is dated 7.8.2008.
Though learned counsel for the petitioner would contend that
the petitioner may not strictly fall within the four categories
specifically enumerated, the respondents contend that the
four categories mentioned are only illustrations as the said
effect is inevitable by use of the word “like”. At any rate, the
learned standing counsel submits that the case of the
petitioner can also be directed to be considered by the 4th
respondent. In the light of this, I feel that the only relief that
can be given to the petitioner is to relegate the petitioner to
approach the 4th respondent in terms of Ext.R1(b). The
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statement of the learned standing counsel that the quota of
the petitioner can be fixed as 12668 is recorded. Equally, it is
recorded that the petitioner can approach the 4th respondent
in terms of Ext.R1(b), if he is aggrieved by the said fixation
and seek the fixation of another quota.
9. Recording the above submissions, writ petition is
disposed of directing that if the petitioner represents the
matter before the 4th respondent, within one week from today,
in terms of Ext.R1(b) order, the 4th respondent will take a
decision in the matter in accordance with law, within one
month from the date of filing of the representation. I only
hope that he will act in the matter which will allay the
apprehensions of the petitioner that he may not get justice
from the 4th respondent.
Sd/-
(K.M.JOSEPH, JUDGE)
aks
// TRUE COPY //
P.A. TO JUDGE