IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 12TH MAY 2009 / 22ND VAISAKHA 1931 RP.No.1179 of 2008(B) -------------------------- AGAINST THE JUDGEMENT IN WP(C).18284/2005 Dated 13/03/2007 .................... REVIEW PETITIONER/PETITIONER: -------------------------------------- M/S. A.V.G. MOTORS LIMITED, ANCHERIL BUILDINGS, BAKER JUNCTION, KOTTAYAM, REPRESENTED BY ITS DIRECTOR, MR. A.V. GEORGE. BY MR.JOSEPH KODIANTHARA, ADVOCATE. MR.MITHUN MARKOS, ADVOCATE. RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE DEPUTY CHIEF ENGINEER, APTS, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KOTTAYAM. 4. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICIY BOARD, ELECTRICAL SECTION, KOTTAYAM EAST. BY MR.C.K.KARUNAKARAN, SC, KSEB. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 30/01/2009, ALONG WITH WP(C) No.34646 OF 2008, THE COURT ON 12.05.2009 PASSED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of May, 2009 ORDER The petitioner M/s. AVG Motors Ltd. is once again before this court. Respondents are the Kerala State Electricity Board - R1, the Deputy Chief Engineer, APTS - R2, the Assistant Executive Engineer, Electrical Sub Division - R3 and the Assistant Engineer, Electrical Section - R4. According to the petitioner, they are consumer of electricity under the jurisdiction of the third respondent and their Consumer number is 6339. The petitioner is running a work shop for repairing vehicles since 1998. The respondent has classified the petitioner under LT IV tariff and the petitioner was being billed under that tariff. While so, Ext.P1 additional bill dated 01/07/2003 demanding an amount of Rs.12,27,689/- purporting to be charges for electrical energy consumed during the period from 10/98 to 4/2003 was served on the petitioner. Apart from Ext.P1, the petitioner was issued with Ext.P2 proceedings dated 17-07-2003 from the fourth respondent R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 2 stating that the Assistant Engineer APTS inspected the unit of the petitioner on 15/05/2003 and that it was noticed that there was short assessment since the appropriate tariff for vehicles service centres is LT VII A and that the petitioner is to be assessed under LT VII A and not under LT IV tariff. Being aggrieved by Ext.P1 and Ext.P2, the petitioner preferred appeal against the same before the second respondent. He also preferred W.P.(C)No.24794/2003 before this court and this court disposed of the writ petition by Ext.P3 judgment dated 04/08/2003 directing the second respondent to hear and dispose of the appeal within two months and directing the petitioner to remit the amount due under Ext.P1 in monthly instalments of Rs.2 lakhs. The second respondent finally heard the appeal and passed Ext.P4 order dated 16-08-04. Under Ext.P4 it was held by the second respondent that : 1) The writ petition should take separate connection to service station under LT VIIA tariff and the workshop should be retained under LT IV tariff. R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 3 2) LT VII A tariff will continue till segregation. 3) Penal bill issued is in order. 2. Being aggrieved by Ext.P4, the petitioner preferred W.P.(C)No.29806/2004 before this court. This court passed Ext.P5 judgment dated 12-10-2004 setting aside Ext.P4 and directing the second respondent to reconsider the matter and pass fresh orders. Pursuant to Ext.P5, the appeal was heard again and disposed of by Ext.P6 order dated 20-05-2005. Being aggrieved by Ext.P6, the petitioner approached this court again by filing W.P.(C) No.18284/2005. That writ petition was disposed of quashing Ext.P6 ( which had been produced as Ext.P7 therein) and directing the second respondent to take fresh decision after hearing the petitioner. The second respondent was directed to take into account the documents which were produced as Exts.P8, P9 and P10 in that writ petition and also to permit the petitioner to submit his argument in writing. It was also ordered under Ext.P7 that the petitioner can apply for issuance of a Commission for local inspection suggesting the names of five senior R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 4 lawyers of the Kottayam Bar giving option to the second respondent to select one among them as the Commissioner. It was ordered that fresh decision will be taken on the basis of the Commissioner's report also. The penal bill was quashed on condition that the petitioner discharges atleast 50% of the total demand and continues to pay 50% of the bills which may be issued to them in future. 3. The Electricity Board preferred a petition for review of Ext.P7 judgment and the review petition was disposed of clarifying that the Kerala State Electricity Board can submit a panel containing the names of three competent Engineers who will be able to render useful assistance to the Advocate Commissioner and that the Commissioner will select one among them with notice to the writ petitioner. Ext.P8 is the order in the review petition. The petitioner points out that on the terms of Ext.P7 and P8 respondents were bound to issue bills to the petitioner bifurcating the charges demanded at 50:50 under LT IV and LT VII A. Nevertheless, the ratio adopted by them in subsequent bills was 20%: 80% between LT IV and LT VII A tariff. Ext.P8 (a) statement showing the complete details of the bills raised by the R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 5 respondents from May 2003 to October 2008 is produced and it is contended that the action of the respondents amounts to violation of the directions in Ext.P7. It is submitted that Sri.V.K. Satyavan Nair, a senior lawyer of the Kottayam Bar, was selected as the Advocate Commissioner by the KSEB from among the panel submitted by the petitioner. Sri.Satyavan Nair selected Sri.P.O.Abdul Salam, retired Executive Engineer of the KSEB from the panel submitted by the KSEB to assist him with notice to both sides and with assistance of the retired Executive Engineer. The Advocate Commissioner conducted inspection and submitted his report Ext.P9 dated 13-07-2008 wherein it is concluded as follows : “ The versions of the petitioner and KSEB have been considered in assessing the nature of consumption of electrical energy by consumer No. 6339. Electrical section (East), Kottayam for various activities and the Commissioner and the technical expert arrived at the conclusion that the premises is mainly a workshop and only 6.132 KW being the connected load of water servicing can come under commercial activity.” R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 6 4. On the basis of the above conclusions, the petitioner claims that their main activity conducted in the premises was that of a workshop for repairs of vehicles and the entire premises would fall under LT IV tariff as an industry and that the classification originally allotted to the petitioner was correct. Ext.P9 (a) produced in the writ petition is true copy of the tariff notification dated 01/11/2002. After Ext.P9 report was obtained, the second respondent issued Ext.P10 notice dated 18/07/2008 posting the hearing of the appeal on 04/08/2008. The petitioner immediately submitted Ext.P11 written arguments. The Assistant Executive Engineer APTS filed Ext.P12 objections to the Commissioner's report. The petitioner thereupon filed Ext.P13 rejoinder by way of reply to Ext.P12 before the second respondent. The petitioner submits that they are shocked and surprised to find that after the hearing and the filing of Exts.P11, P12 and P13, the second respondent addressed the Advocate Commissioner by Ext.P14 letter dated 19/09/2008. According to the petitioner, a mere perusal of Ext.P14 will disclose that the second respondent appellate authority abdicated its statutory appellate roll and is functioning as an R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 7 officer of the Board. It is submitted that the second respondent by another letter Ext.P15 dated 15-10-2008 informed the Advocate Commissioner that he will take a decision without waiting for reply unless the same is received within seven days. 5. On coming to know about Exts.P14 and P15, the petitioner filed R.P.No. 1179/2008 before this court on 25/10/2008. It is submitted that the copy of the above review petition ( Ext.P16) was served on the same day on the standing counsel for KSEB. The review petition thereafter came up for admission and hearing before this court on 17-11-2008 when an order was passed restraining the second respondent from taking final decision for three weeks. However on 18-11-2008, the petitioner was served with an order dated 01/11/2008 and Ext.P17 is copy of that order. It is pointed out that the date of Ext.P17 originally put was 01/10/2008 and was corrected as 01/11/2008. The petitioner alleges that after receiving the copy of Ext.P16 review petition, the second respondent has hastily proceeded to pass Ext.P17 order in which specific references are made to the Commissioner's report and report of the technical expert who was R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 8 selected by the KSEB itself. It is submitted that a mere perusal of Ext.P17 will discloses the totally biased, arbitrary, irrational and inconsistent manner in which Ext.P17 order has been passed by the second respondent abdicating his appellate jurisdiction completely and acting as an officer of the KSEB only. 6. On various grounds raised in the writ petition, the petitioner prays that Ext.P17 be quashed. A counter affidavit is filed on behalf of the respondents by the Assistant Executive Engineer attached to the office of the KSEB's standing counsel denying the allegations and repudiating the grounds raised in the writ petition. It is contended inter alia that the petitioner after availing the service connection under LT IV tariff extended supply for different purposes on a contention that each and every part of the premises is an integral part of the activity carried on there for which the original connection is availed. It is pointed out that prior to Electricity Act 2003 based on Supply act 1948 ( by virtue of Section 49, 59 and 79(j), electricity was sold to consumers, segregating the consumers based on the purpose for which electricity was used. Availing electricity for one purpose and R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 9 extending for some other purposes amounts to misuse of energy for which the consumer is liable to be penalised. It is submitted that in a surprise inspection conducted by ATPS on 13/05/2003 at the petitioner's premises, misuse of power was detected. It was seen that the petitioner was using major portion of the load for different higher tariff purposes such as functioning of the office, service station etc. for which the appropriate tariff applicable is LT VII A. It was based on that a reassessment bill for Rs.12,27,689/- was issued and pursuant to the directions by this court, the petitioner's appeal was disposed of giving considerable relief to the petitioner. 7. It is submitted that the petitioner is a LT IV Industrial consumer under the second respondent having consumer No. 6339. The activity of the petitioner is conduct of Maruthi vehicle workshop and service station with an authorised load of 57 KW. On inspection, it was detected that there is an unauthorised load of 8 KW connection in the supply system without prior permission of the Board and major portion of the load in the premises was seen misused by using power for different categories of working activities under commercial tariff. R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 10 Petitioner's action amounted to violation of Section 42(d) of the conditions of supply of Electrical Energy. Site mahazer was prepared and instructions were given by the second respondent to fourth respondent for reassessing the bill under LT VII A tariff. The counter affidavit goes on to refer to the various appeals preferred by the petitioner, orders passed by the authorities of the Electricity Board and judgments passed by this court in respect of the dispute in question. It is submitted that Sri.V.K.Satyavan Nair, Advocate Commissioner, after inspection arrived at a conclusion that the petitioner's premises is mainly engaged in the activity of workshop and hence will come under the tariff of industrial nature. It is alleged that the Commissioner has acted beyond the terms of his reference in concluding as to what was the tariff applicable to him. According to the counter affidavit, the Commissioner was appointed only for noting the various activities conducted in the premises and ought not have stated whether the activities carried on in the premises come under LT IV or LT VII A tariff. The counter affidavit goes on to explain the category wise load existed in the premises. It is submitted that the total load which existed R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 11 in the portion of the petitioner's premises consisting of the front office, customer's launch and training hall was 20.765 KW which is 26.5% of the total load of consumer No.6339 availed under LT IV tariff. On examining the load pattern of the said portion, it is seen that 10.75 KW load is air-conditioner and the rest consisting of attractive fancy light loads. This portion is equipped with all kinds of fascinating and attracting equipments to attract the customers for improving the petitioner's business. Not even a single apparatus is installed in the portion is related with the loads of industrial firm. The well furnished air-conditioned office room and training hall will definitely come under LT VII A and cannot be treated as LT IV connection as per the existing rules and regulations of the Board and tariff orders. 8. It is then submitted that the total load connected in the portion consisting of the water service station and after sales service of new Maruthi Vehicle and Wheel Balancing is 31.96 KW ( 24.71 + 6.13 + 1.12). The petitioner's contention that service station is an integral part of the work shop and it can be treated as an integral part of the LT IV tariff is disputed and it is contended that the KSEB had not given R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 12 consent for the service station while granting connection to the work shop. 9. It is then submitted that canteen and Insurance office portion of the petitioner's premises total connected load of 740 W exist. This, it is conceded is only a minute part of the total connected load and can be treated as an integral part of the industrial load even though it is commercial in nature. 10. Lastly it is stated that the total connected load in the portion of the petitioner's premises consisting of painting booth and compressor, workshop for repair is 24.676 KW and it is conceded that this portion is purely industrial nature and can certainly be treated under the industrial tariff. On the above basis, it is submitted that the total connected load of LT VII A is 52.625 KW and the corresponding connected load under LT IV is 25.416 within an grant total of 78.141 KW. It is submitted that the connected load applicable to LT IV tariff is 25.416 KW and the entire rest will come under tariff LT VII A. Accordingly, it is contended that the petitioner is liable to avail separate service connection for each category and electricity charges to R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 13 be paid on that basis. The counter affidavit raises serious objections against the Advocate Commissioner's report and contends that the report is against the provisions of the existing Electricity Act and hence the same is unacceptable in toto. According to the counter affidavit, the Deputy Chief Engineer is entitled to act as an officer of the Kerala State Electricity Board and he is competent to decide the issue on the circumstances existing in the case and the provisions of existing law. It is contended that there is clear violation of the provisions of the law and violates Section 42(d) of the conditions of supply of Electrical Energy and therefore, the petitioner is liable to segregate each and every load in his premises and he has to avail separate connection for LT IV and LT VII tariffs. 11. I have heard the submissions of Sri.Joseph Kodianthara, learned counsel for the petitioner and those of Sri.C.K. Karunakaran, learned standing counsel for the Kerala State Electricity Board. The submissions of the learned counsel were generally based on the grounds raised in the writ petition/contentions raised in the counter affidavit. My attention was drawn by Sri.Joseph Kodianthara inter alia R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 14 to Ext.P17 impugned order, Ext.P7 judgment of this Court, Ext.P8 order, Ext.P9 tariff order and to Exts.P14 and P17. Sri.C.K. Karunakaran, learned standing counsel for K.S.E.B referred in his submissions to Ext.P5 and the judgment of this Court in Writ Petition(C) No.26098/2004 filed by M/s.Motor and General Finance Limited where K.S.E.B is the respondent. It was submitted that this Court had under that judgment found that when establishments like that of the petitioner-Automobiles Service Centre cum Workshop is consuming electricity, there has to be segregation of connections so that the workshop portion and service centre portion can be billed separately. He drew my attention to the tariff order and submitted that LT IV is for industrial connection while LT VII is for commercial connection. According to him, Ext.P9 is not acceptable since the Commissioner has not properly identified the actual load in the two phases. I have anxiously considered the rival contentions addressed above in the light of the pleadings raised by the parties and the documents placed on record particularly those documents to which my attention was drawn by the learned counsel in their submissions. R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 15 12. I find much force in the argument of Sri.Joseph Kodianthara that Ext.P17 order was not passed in conformity with the directions of this Court in Ext.P7 judgment as modified by Ext.P8 order. This Court had specifically directed that fresh decision will be taken by the second respondent-Deputy Chief Engineer on the basis of the report of the Commissioner also which certainly meant that this Court wanted the second respondent to take into account the Advocate Commissioner's report also amongst various relevant items to be taken into account by him. 13. Regarding the identity of the Commissioner to be appointed also, this Court had issued directions taking into account the interests of both sides. Though option of submitting panel of prospective Commissioners had been given to the petitioner, it was insisted that only senior Lawyers of Kottayam Bar would be included in the panel and the option for selecting one senior Lawyer from amongst those in the panel was given to the K.S.E.B itself. It is in exercise of that option that Sri.V.K.Satyavan Nair was chosen as Advocate Commissioner. As for the expert who assisted the Advocate Commissioner, the selection R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 16 was made by the Commissioner from out of a panel submitted by the K.S.E.B itself. Regarding the technical expertise, efficiency and integrity of Sri.P.O.Abdul Salam, retired Executive Engineer who assisted the Advocate Commissioner, the K.S.E.B cannot have any legitimate objection since they only had included his name in the panel of Engineers. 14. It is seen from Ext.P17 that Ext.P9 report of the Advocate Commissioner, which is in fact a joint report of both Sri.V.K.Satyavan Nair and Sri.P.O. Abdul Salam, retired Executive Engineer, has been completely ignored by the second respondent-Deputy Chief Engineer while taking decision. It is seen that on behalf of the Electricity Board, Ext.P12, containing apparently serious objections, had been filed to Ext.P9. Interestingly Ext.P12, it is submitted, is filed only after Ext.P10 hearing notice posting the case on 04.08.2008 was issued by the second respondent. Whatever that be, it is seen that Ext.P12 has been answered by the writ petitioner by filing Ext.P13 and both sides were heard by the second respondent. The hearing naturally should have been with reference to the acceptability of the Commissioner's R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 17 report also. The hearing as directed by this Court was conducted as per Ext.P17 on 04.08.2008. One can understand the second respondent taking decision on the basis of the arguments addressed at the time of hearing giving reasons as to why he is unable to accept the commissioners' report. One can also understand the second respondent seeking further report from the Commissioner with notice to the petitioner. But, instead, a strange procedure is seen adopted by the Deputy Chief Engineer. After hearing is over on 04.08.2008, the second respondent addressed the Advocate Commissioner by Ext.P14 letter dated 19.09.2008. Thereafter, the second respondent sent another letter to the Advocate Commissioner informing that unless a further report as indicated in Ext.P14 is received within seven days, a decision will be taken without waiting for the Commissioner's response. It is seen that Ext.P17 dated 01.11.2008 (original date 01.10.2008 corrected as 01.11.2008) is issued without even referring to Exts.P14 and P15 and final decision is taken as Ext.P17 on the basis of the hearing conducted much prior to Exts.P14 and P15. The procedure adopted is highly irregular. R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 18 15. I find merit in the submissions of Sri.Joseph Kodianthara that the second respondent was unmindful of the situation that he was expected to discharge a quasi judicial function and was directed by this Court to discharge the functions of a statutory appellate authority while taking fresh decision on the issue pursuant to Ext.P7. In fact, one of the grounds specifically raised in this writ petition is that the appellate authority who is a Deputy Chief Engineer on the rolls of the K.S.E.B being over obsessed with his loyalty to his employer was unable to discharge his functions as statutory appellate authority. As statutory appellate authority, the second respondent was expected to take decision on the issue pursuant to Ext.P7 in a quasi judicial manner following the canons of natural justice and fair play. The second respondent was bound to imbibe the spirit of the directions in Ext.P7 judgment and take a decision balancing the interests of the writ petitioner and the K.S.E.B as an impartial umpire and not as an employee of the K.S.E.B. His conduct in addressing Exts.P14 and P15 calling for further report and in ultimately passing Ext.P17 without even referring to Exts.P14 and P15 and the pungent remarks which he R.P.No.1179 of 2008 in W.P.(c).No.18284 OF 2005 & W.P.(c)No.34646 OF 2008 19 has made in Ext.P17 regarding the joint report submitted by a senior Advocate who was selected by the Board and by a retired Executive Engineer of the Board who was suggested by the Board gives strong support to the contention of the petitioner that the second respondent did not discharge his functions as a statutory appellate authority though he was under specific directions by this Court in Ext.P7. 16. I feel that relegating the matter once again to the author of Ext.P17 will be a futile exercise. At the same time I am not inclined to decide the issue finally. Ext. P17 is quashed and the issue is relegated again to the appellate authority subject to the following directions: The first respondent is directed to refer the appeal in question to any of its officers not below the rank of Deputy Chief Engineer, other than the author of Ext.P17 notifying him as the appellate authority conferring jurisdiction over the appeal in question. The appellate authority notified as above will take a fresh decision in the