IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 OP.No. 20022 of 2002(H) ---------------------------------- PETITIONER: ------------------- E.K.BEEFATHIMA, ANNES OIL MILL, NEAR BLOCK DEVELOPMENT OFFICE, P.O.PUTHARIYADUKKAM-NILESHWAR-671 314. BY ADVS. MR.P.SREEKUMAR, MR.K.S.MANU. RESPONDENTS: ------------------------ 1. THE CHIEF ENGINEER, DISTRIBUTION NORTH, KOZHIKODE. 2. THE DEPUTY CHIEF ENGINEER, ELECTRICAL SECTION, KASARAGOD. R1 & R2 BY MR.C.K. KARUNAKARAN, S.C, K.S.E.B. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO.20022/2002-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE BILLS. EXT.P.2: COPY OF THE PETITION DTD. 22/12/1999. EXT.P.3: COPY OF THE PETITION DTD. 16/04/2002. EXT.P.4: COPY OF THE COMMUNICATION DTD. 22/04/2002. RESPONDENTS' ANNEXURE: ANNEXURE (A): COPY OF THE BOARD ORDER DTD. 02/07/01. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 20022 of 2002 ================== Dated this the 11th day of November, 2009 J U D G M E N T The petitioner is a consumer of electricity from the Kerala State Electricity Board. He obtained electricity connection for running a small scale industry. At the time of obtaining electricity connection, the connected load of the petitioner was such that he was compulsorily to be designated as a HT consumer. Accordingly, he had installed a transformer spending Rs.1,50,000/- for the purpose of obtaining electricity connection as directed by the Board. The petitioner had been thus enjoying electricity under HT tariff. While so, the Board reclassified LT and HT consumers and it was decided that consumers having connected load upto 150 KVA would be treated as LT consumers. Since the petitioner's connected load was less than 150 KVA, in accordance with the decision of the Board, the petitioner filed Ext.P2 request dated 22.12.1999 for conversion of her HT connection to LT connection. The respondents did not take any action on the request of the petitioner for three years. The petitioner, therefore, again filed Ext.P3 application dated 16.4.2002. Pursuant thereto, Ext.P4 communication was issued by the 2nd respondent to the petitioner, which reads thus: 'With reference to the above, I am to inform you that K.S.E.Board has issued instructions, vide. B.O.No.1458/2001 (Plg.Com. O.P.20022/02 2 3776/99/TRAC) Trivandrum dtd 2.7.2001, regarding conversion of HT consumers to LT consumers whose connected load is less than 150 KVA. The Chief Engineer, Distribution North, Kozhikode is the authority for conversion subject to the following conditions: 1. The consumer shall surrender free of cost to K.S.E.Board, the transformer, structures and other fittings. LT overhead lines/UG cables etc owned by the consumer. xxx xxx xxx xxx' The petitioner is challenging Ext.P4 in this original petition. 2. According to the petitioner, the direction therein that the petitioner shall surrender the transformer, structures and other fittings, LT overhead lines/UG cables etc. which belongs to the petitioner, to the KSEB free of costs is expropriatory and, therefore, without authority of law. 3. On 16.12.2002, this Court passed an interim order in C.M.P.No.34372/2002 as follows: “Heard both sides. There shall be an interim order as prayed for. Condition No.1 in annexure (a) need not be insisted for de-classifying the petitioner as low tension consumer. But, the petitioner shall not remove or tamper with those structures mentioned in condition No.1 Whether the Board is entitled to seek free surrender of the same, will be decided in the O.P.” 4. A statement has been filed by the respondents, wherein they take the stand that this condition is as per Annexure (a) order of the KSEB, dated 2.7.2001. The reason for this condition, as stated in the statement, is that on conversion of HT consumer into LT category, the Board would suffer loss in so fas as the LT consumers are liable to pay electricity charges at a lower rate than HT consumers. According O.P.20022/02 3 to them, the monthly loss of the Board on account of this conversion would come to Rs.30,000/- and it is for the consumers to compensate this loss which is why the Board insisted on the condition that for conversion of HT connection into LT connection the consumers shall surrender free of costs the transformers, structures and other fittings, LT overhead lines/UG cables etc. with freedom to the Board to connect any number of LT consumers to that transformer surrendered by the consumer. 5. The counsel for the Electricity Board also points out that the petitioner has not chosen to challenge Annexure (a) Board order, which has been specifically cited in Ext.P4 communication. 6. I have considered the rival contentions in detail. 7. The decision taken by the Board by order dated 31.7.1999 for treating consumers having connected load of 150 KVA and less as LT consumers is not on account of any request from the consumers as such, including the petitioner. It was a suo motu policy decision of the Board. The reasons for that decision are not relevant for our purpose. A copy of that order has been made available to me for perusal. That order does not contain any condition as stated in Annexure (a) for conversion of HT consumer having connected load of 150 KVA or less into LT consumer. Once the Board decides that consumers having connected load of 150 KVA or less would be LT consumers, all similarly O.P.20022/02 4 situated consumers, past or present, are entitled to the benefit of that Board order. Immediately on issue of that order, the petitioner filed Ext.P2 application for conversion, as early as on 22.12.1999. If that application had been processed and orders were passed within a reasonable time, then the Board would have been forced to allow the request of the petitioner in accordance with the Board order dated 31.7.1999, which does not stipulate any condition for the conversion. The condition now insisted on was introduced much later on 2.7.2001. Of course in Annexure (a) it is stated that those orders are applicable to all pending cases and the applications received in future. But as I said, if the petitioner's request was allowed within a reasonable time, there would have been no occasion to insist on that condition. The Board cannot take advantage of their own lethargy in processing the petitioner's application in time. As such, I am not inclined to non suit the petitioner on the ground that she had not challenged Annexure (a) order even in this original petition. Even otherwise, in so far as the condition insisted upon by the Board for conversion of HT into LT is expropriatory in nature, the same is per se illegal in so far as the Board had not been able to point out any provision of law which authorises to the Board to appropriate the property belonging to the petitioner without paying compensation as a condition for conversion of HT connection into LT connection. However, I feel that in public O.P.20022/02 5 interest, in order that the transformer and installation, although financed by the petitioner should not go waste, I am inclined to allow the Board to give connections from that transformer to others without causing any inconvenience to the petitioner for enjoying her properties with a condition that the amounts received from the LT consumers for getting connections from that transformer, shall be paid to the petitioner to offset the depreciated value of the transformer. Accordingly, the original petition is disposed of as above. 8. The condition in Ext.P4 that the consumer shall surrender free of cost to the Board the transformer, structures and other fittings, LT overhead lines/UG cables, is declared as without authority of law. However, the Board is permitted to connect LT consumers to the transformer belonging to the petitioner on condition that the amounts collected from such consumers shall be paid to the petitioner till an amount of Rs.1,00,000/- is paid as compensation to the petitioner. All other conditions in Ext.P4 would hold good. The use of the transformer by the Board would be subject to the undertaking in paragraph 8 of the statement submitted by the respondents, which reads thus: “8. The apprehension of the consumer that her property will be wasted if power supply is extended to others is unfounded. The service connection of other LT consumer can be taken without causing any hindrance to the petitioner's property by realigning the LT lines, if necessitated, underneath the existing HT lines, if the petitioner so decides to surrender the transformer and opt for LT tariff. If the petitioner's transformer has the capacity to connect other LT consumers and if no damages is caused in any way, then what is the inconvenience to O.P.20022/02 6 surrender the transformer to the Board. Exhibit P4 is strictly in accordance with Annexure (a) and thus in accordance with the rules in force and so long as it is not challenged the petitioner is obliged it (sic). Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 20022 of 2002-H ================== J U D G M E N T 11th November, 2009