IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 12306 of 2002(M)
1. M/S. PALM FIBERS & YARS TRADING CO.,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. CHIEF ENGINEER (TARIFF & COMMERCIAL)
3. SPECIAL OFFICER (REVENUE),
4. ASST. EXECUTIVE ENGINEER,
For Petitioner :SRI.J.JULIAN XAVIER
For Respondent :SRI.P.SANTHALINGAM, SC, KSEB
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :29/05/2009
O R D E R
ANTONY DOMINIC, J.
-------------------------
O.P. No.12306 of 2002
---------------------------------
Dated, this the 29th day of May, 2009
J U D G M E N T
The petitioner claims to be a Small Scale Industrial unit. In the
premises of the petitioner, they were availing supply in two
consumer numbers, viz. Consumer Nos.13070 & 13427, where they
were classified as Low Tension Consumer. In so far as Consumer
No.13070 is concerned, the power allocated was 33 KW and the
commercial production started on 11/07/1994. In so far as
Consumer No.13427 is concerned, the power allocated was 76 KW
and the commercial production commenced on 14/07/1995.
2. On 06/02/1992, the Government of Kerala had issued
Ext.P1 providing that industries, which have commenced
commercial production or have effected substantial capacity
expansion, will be eligible for certain concessions including that
they need to pay only Pre 92 tariff for five years from the date of
commencement of their commercial production or capacity
expansion as certified by the District Industries Centre. In so far as
O.P.No.12306/2002
-2-
the petitioner is concerned, in respect of the aforesaid two LT
connections, by Ext.P2 certificate dated 14/10/1997, their eligibility
for the benefit of Ext.P1 was certified by the General Manager,
District Industries Centre.
3. The petitioner submits that in the meanwhile, their
requirement of power allocation increased and they availed of 300
KVA and that, as a result of this, they had to become a High Tension
consumer with effect from 15/05/1998. It is the case of the
petitioner that it was on the directions of the Board only that they
applied to be classified as HT consumer and that it was only a
conversion of supply under LT into HT.
4. On the strength of Ext.P2, and in view of their eligibility
for the benefit of Ext.P1, they made an application for the benefit of
Ext.P1, that was rejected on the ground that the application was
made beyond the last date prescribed for making the application.
That order was challenged before this Court and the case was
considered along with a batch of identical cases. The cases were
disposed of by Ext.P3 judgment setting aside the cut of date and
directing consideration of their applications on merits. It is stated
O.P.No.12306/2002
-3-
that during the pendency of the OP, they were allowed to pay the
energy charges at concessional rate and accordingly, payment was
also being made. In writ appeals filed by the Board, Ext.P3
judgment was confirmed by a Division Bench of this Court.
5. Accordingly their claim was considered and by Ext.P4,
the respondents held that the petitioner is ineligible for the benefit
of Ext.P1. Against Ext.P4, the petitioner filed Ext.P5 appeal, which
was disposed of by Ext.P6 order. In Ext.P6, while confirming Ext.P4
order, the appellate authority held that the petitioner is eligible for
the benefit of Ext.P1 till 15/05/1998 when they became HT
consumer. It was also ordered that the benefit to the extend
admissible, will be got reimbursed from the Industries Department.
It is challenging Exts.P4 & P6 and also praying for a direction to the
respondents to extend the petitioner the benefit of Ext.P1
Government Order for the quantity of energy supplied to them
under the LT category for the full five year period as certified in
Ext.P2, that this original petition is filed.
6. Statement has been filed by the respondents. In so far
as the directions in Ext.P6 that the petitioner can claim
O.P.No.12306/2002
-4-
reimbursement of the admissible amount from the Industries
Department is concerned, in view of the judgment of this Court in
Premium Ferro Alloys Ltd. v. KSEB & Others, (OP No.7822/1998)
and other cases, the liability of the Board to extend the benefit to
the consumer is rightly not disputed by the learned standing
counsel for the Board.
7. The main controversy is regarding the claim of the
petitioner for continued supply of the original quantity for the full 5
year period specified in Ext.P1. In the statement filed by the learned
standing counsel for the Board, they have taken up the position that
initially the petitioner was availing of supply under the LT category
with consumer Nos.13070 & 13427. According to the Board, this
was not a case of clubbing together the LT supply to form HT
supply. It is stated that on the application made by the petitioner,
they were allotted 300 KVA of energy and in terms of the
regulations of the Board, such consumers are to be categorised
under the HT category. According to the Board, the petitioner was
accordingly supplied energy under the HT category as a new
consumer with effect from 15/05/1998. On this basis, it is argued
O.P.No.12306/2002
-5-
that since the supply was as a new consumer with effect from
15/05/1998, such supply was beyond the period prescribed in
Ext.P1, namely 1992-96. Therefore, according to the respondents,
the petitioner is eligible only for the benefit of Ext.P1 for the period
upto 15/05/1998.
8. A reading of Ext.P1 shows that only those consumers,
who have commenced commercial production during the period
1992-96 are eligible for the concessions extended by the said
order. Admittedly, the consumer Nos.13070 & 13427 were under
the LT category and commercial production commenced on
11/07/1994 & 14/07/1995 respectively, and this has been certified
in Ext.P2. This supply continued till 15/05/1998 under the LT
category and the LT installation was dismantled on 23/05/1998.
From 15/05/1998, on the materials produced, it is seen that the
supply as under the HT category as a new consumer. Therefore, as
an HT consumer, the petitioner commenced commercial production
only with effect from 15/05/1998. If that be so, commencement of
commercial production as HT consumer is out side the period of
1992-96 prescribed in Ext.P1, and consequently the petitioner, as
O.P.No.12306/2002
-6-
an HT consumer, does not come within the purview of Ext.P1.
Necessarily therefore, the claim for the extension of the benefit of
Ext.P1, even for the quantity covered by the LT supply beyond
15/05/1998 is inadmissible and its rejection by Ext.P6 deserves to
be uphold. The writ petition, therefore, will stand disposed of
directing that admissible benefit towards Consumer Nos.13070 &
13427 for 33 KW and 76 KW supplied to the petitioner and certified
in Ext.P2, will be released to the petitioner up to 23/05/1998, when
the LT installation was dismantled without insisting on the benefit
being reimbursed from the District Industries Department as held by
this Court in the judgment in OP No.7622/1998.
The original petition is disposed of as above.
(ANTONY DOMINIC, JUDGE)
jg