IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 14538 of 2003(E)
1. M/S.CHAYA INDUSTRIES LTD.,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. DEPUTY CHIEF ENGINEER (COMMERCIAL)
3. SPECIAL OFFICER (REVENUE)
4. STATE OF KERALA,
For Petitioner :SRI.J.JULIAN XAVIER
For Respondent :SRI.P.SANTHALINGAM, SC, KSEB
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :12/06/2009
O R D E R
ANTONY DOMINIC, J.
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O.P. NO. 14538 OF 2003 (E)
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Dated this the 12th day of June, 2009
J U D G M E N T
Petitioner is an HT consumer. Their commercial production
commenced on 27/12/96. They claimed the benefit of Pre 92
concessional tariff on the basis of the Government orders. That
was not accepted. Finally, the petitioner approached this Court
and filed OP 1846/2000. This court by judgment dated 7/4/2000,
upheld the claim of the petitioner and on that basis, petitioner
was given the benefit for five years till 26/12/2001.
2. One of the issues raised in this original petition is that
during the aforesaid period, when they were enjoying the Pre 92
concessional tariff, power cut was imposed by the Board at
varying rates, as a result of which, the period allowed to the
consumers like the petitioner were substantially reduced. Many
consumers approached the Government praying for proportionate
extension of the period of concessional tariff. The Government
finally issued Ext.P3 dated 26/10/1999, which stated that the
consumers who suffered power cut at rates more than 50% will
get proportionate extension for period.
OP No.14538/2003
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3. Petitioner submits that during the period 96-97, power
cut at more than 50% was in force for 352 days. They applied for
the benefit of Ext.P3 and the Board extended concessional period
only by 167 days. Petitioner submits that though they were
entitled to extension by 352 days, what was allowed by the Board
was less by 185 days. They filed an appeal to the 2nd respondent
and the 2nd respondent rejected their claim by Ext.P7 order. In
this context, the prayer sought by the petitioner is to quash
Ext.P7 appellate order declining their aforesaid claim.
4. The reasoning of the 2nd respondent in Ext.P7 is as
follows.
The quota for the appellant company was fixed based
on the Government order dt 15.2.1996 by which new
industries were given power connection on condition
that the quota will be 50% of the base quota for
industries started functioning after 1.1.1996. This was
continued throughout the period of power cut
irrespective of the reduction in power cut from time to
time. No discrimination was done in fixing the quota and
all industries,which started production on or after
1.1.1996 were fixed a uniform quota during the period of
power cut. The company was already granted the
eligible extension of concessional tariff period (167 days)
and no orders are existing to further extend the period.
5. As can be seen from the above, the benefit claimed by
the petitioner is declined relying on GO(Rt) No.25/96/PD dated
OP No.14538/2003
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15th February, 1996. A reading of this Government order shows
that new industries which started functioning after 1/1/96 were
given power connection on condition that their quota will be only
50% of the base quota. Admittedly, petitioner is a new industry,
which started functioning after 1/1/96 and the Government order
applies to them. The aforesaid provision in the Government order
shows that power supply was limited to consumers such as the
petitioner, irrespective of the rates at which power cut was levied
and the condition was that their quota will be 50% of the base
quota. If that be so, the fact that the petitioner enjoyed only 50%
of the base quota was not dependent upon the power cut that
was imposed by the Board on a periodical basis, but was on
account of the restrictions imposed by the Government order
dated 15/2/1996. If so, the claim of the petitioner do not come
within Ext.P3 Government Order dated 26/10/99, by which,
proportionate extension of the period of Pre 92 tariff was
extended to consumers. Consequently, the claim of the petitioner
for extension of Pre 92 tariff for a further period of 185 days
cannot be allowed.
6. The other prayer sought in this original petition is that
OP No.14538/2003
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the petitioners claim for Pre 92 concessional tariff was accepted
by this Court in the judgment in OP No.1846/2000 rendered on
7/4/2000 and that the benefit was extended thereafter. It is
stated that till then, from 27/12/96 onwards the petitioner was
paying the energy charges at ruling rates and that they have
made an excess payment of Rs.55,27,781/-. Petitioner submits
that once their claim for Pre 92 tariff is upheld, they are entitled
to have the aforesaid amount adjusted towards their future bills.
On the other hand, the respondents would say that they have
already adjusted such amounts.
7. Having considered the submission made by both sides,
I am inclined to think that the petitioner is justified in his prayer.
Once the petitioner’s claim for Pre 92 tariff has been allowed,
necessarily, if any excess amount has been realised from the
petitioner during the period in question, such amount should be
either refunded or adjusted towards their dues. Therefore, if any
excess amount has been realised and that the same has not been
adjusted so far, the Board shall quantify the excess amount so
realised from the petitioner during the period when they were
eligible for the concessional Pre 92 tariff and such amount shall
OP No.14538/2003
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be adjusted towards their future bills.
8. Then the petitioner claims the benefit of Ext.P4. Ext.P4
is a Board order dated 25/2/2002, which says that a consumer
who remits current charges in the manner provided in advance
will be given 10% rebate on demand charges and energy charges.
According to the petitioner, the excess amount realised at ruling
rates during the period during which they were eligible for
concessional tariff should be treated as advance as provided in
Ext.P4 and on that basis they should get rebate as provided
therein. Having regard to the fact that what the petitioner paid
was energy charges and was not as advance as provided in
Ext.P4, I am not inclined to accept this claim made by the
petitioner.
Original petition is disposed of as above.
ANTONY DOMINIC, JUDGE
Rp