IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 OP.No. 20577 of 2002(Y) --------------------------------- PETITIONER(S): ---------------------- M/S. POPULAR RICE MILL, OKKAL, KALADY, ERNAKULAM DISTRICT, REPRESENTED BY ITS PARTNER ROSY THOMAS. BY ADV. MR.PKM.HASSAN MR.JULLAN XAVIER J. MR.FIROZ K.ROBIN RESPONDENT(S): ------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, PERUMBAVOOR. 3. ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, PERUMBAVOOR. R1 TO R3 BY ADV. MR.C.K.KARUNAKARAN, SC FOR KSEB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 20577/2002-Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GOVT. ORDER G.O.(MS)4/92/PD DATED 06/02/92. EXT.P2: COPY OF THE BOARD ORDER DATED 27/03/92. EXT.P3: COPY OF THE ORDER DATED 31/03/97 ISSUED BY THE 3RD RESPONDENT GRANTING PRE-92 BENEFIT TO THE PETITIONER'S UNIT FOR A PERIOD OF 5 YEARS FROM 01/06/96. EXT.P4: COPY OF THE PENALTY BILL DATED 16/09/96. EXT.P5: COPY OF THE BILL FOR THE MONTH OF 9/96. EXT.P6: COPY OF THE BILL FOR THE MONTH OF 10/96. EXT.P7: COPY OF THE CHART PREPARED BY THE PETITIONER SHOWING THE EXCESS REMITTANCE. EXT.P8: COPY OF THE BILL DATED 26/02/2002 ISSUED BY THE 3RD RESPONDENT. EXT.P9: COPY OF THE PROCEEDINGS DATED 26/02/2002. EXT.P10: COPY OF THE APPEAL DATED 05/03/2002 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P11: COPY OF THE ORDER DATED 20/06/2002 PASSED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ ANTONY DOMINIC,J. --------------------- O.P.No.20577 OF 2002 ------------------------ Dated this the Ist day of June, 2009. JUDGMENT Petitioner is a small scale industrial unit, with consumer No.2294. The contract demand of the petitioner was 62 KW. It being eligible for concessional pre 1992 tariff as provided for in Ext.P9 Government Order, the said benefit was extended till November, 2001. 2. Meanwhile, on 3.8.1996 the Anti Power Theft Squad of the Board inspected the premises and the connected load in the petitioner's premises was found to be 81KW which was 12 KW in excess of the contract demand. On the basis of the said inspection, Ext.P4 penalty bill was issued and the petitioner paid the amount. It is the case of the petitioner that immediately there upon, the petitioner applied for having the O.P.NO.20577/02 2 additional connected load of 12kw regularized and that accepting the said application, the respondent board, for the future period, demanded and realized fixed charges from the petitioner, taking contract demand as 81 KW. Exts.P5 and P6 are the bills issued in September, 1996 and October, 1996 which shows the contract demand as 81 KW. Petitioner submits that, his application for regularizing the additional connected load of 12 KW was accepted by the Board and additional security deposit was demanded on 16.5.1997 and that the same was remitted. It is stated that thereafter apply pre 92 tariff, bills were being raised on that basis and payments were also made. 3. It would appear that in February, 2000, based on an audit objection raised by the Accountant General, Exts.P8 and P9 were issued to the petitioner demanding an additional remittance of Rs.3,63,789/- to the petitioner. This was on the basis that the eligibility of the petitioner for pre- 92 tariff, was only in respect of 62 KW, it being the contract O.P.NO.20577/02 3 demand as per the agreement between the parties. According to the respondents, the additional 12 KW was alloted to the petitioner only in 1997 and by that time the period prescribed in Ext.P1 for extending the benefit of concession provided therein had expired on 31.12.1996. On this basis, the energy charges were demanded from the petitioner by Exts.P8 and P9. Petitioner filed appeal against Exts.P8 and P9 and that was rejected by Ext.P1. It is in these circumstances the Original Petition is filed. 4. The case pleaded by the petitioner is that, immediately after the Anti Power Theft Squad inspection , they applied for regularizing the additional connected load of 12kw. It is stated that although it is true that additional security deposit was realized only in May, 1997, such delay occurred only for reasons attributable to the respondents in as much as the demand for the same was raised only then. It is stated that for the delay that was caused by the respondents, the petitioner cannot be penalized and they O.P.NO.20577/02 4 should not be deprived of their eligibility for the benefit of Ext.P1. According to the petitioner, accepting the application, respondents have allowed pre 92 tariff for the excess quantity also and there was no justification for raising the demand. 5. There is no counter affidavit filed by the respondents. 6. Standing counsel for the Board would submit that since additional security deposit was remitted by the petitioner only in May, 1997, the application for regularizing the additional connected load was processed only thereafter. It is stated that by that time the period fixed for claiming the benefit of Ext.P1, viz.31.12.1996, had expired and therefore the petitioner cannot claim pre-1992 concessional tariff in respect of additional contract demand of 12 KW. 7. The eligibility of the petitioner for the benefit of Ext.P1, in so far as the contract demand of 62 KW is concerned, for the period up to November, 2001 is not in O.P.NO.20577/02 5 dispute. The only issue is regarding the petitioner's entitlement in so far as the additional connected load is concerned. Though the petitioner was extended the benefit of pre 92 tariff from 1.6.1996, the inspection by the APTS was within two months thereafter. It was on that occasion that the unauthorized connected load was found. In the bills issued in September, 1996 and October 1996, although the contract demand was only 62 KW, fixed charges were demanded for 81 KW adopting the same as the contract demand, extending pre 92 tariff and without any penalty. This position continued till May, 1997 and subsequently going by Ext.P11 appellate order Pre-1992 tariff was extended for the regularised entire connected load of 74 KW, obviously after regularizing the additional connected load of 12 kw. This also continued till November, 2001. It was thereafter, on the basis of audit objection, Exts.P8 and P9 additional bill were issued. O.P.NO.20577/02 6 8. As already stated, the specific averment of the petitioner is that immediately after the inspection of the APTS they had applied for regularizing the additional load of 12 kw. It is on that basis, for the entire connected load found, the bills were raised on the petitioner and they were charged at pre-92 tariff. Thus the fact that an application was made by the petitioner is evident and no material has been produced, much less a counter affidavit has been filed, controverting this contention of the petitioner. If at all deposit of additional security was a condition for regularizing the additional connected load, the respondents ought to have immediately demanded payment of the same. For the delay that has been caused in demanding the security deposit, the petitioner cannot be penalized. In view of the fact the petitioner had made an application and that was accepted and the petitioner was being billed on that basis, I see no reason to deny the benefit already extended and to penalize the petitioner as O.P.NO.20577/02 7 done by Exts.P8 and P9. Consequently the stand taken in Ext.P11 also cannot be sustained. Exts.P8 and P9 stands quashed. The Original Petition is allowed. (ANTONY DOMINIC) JUDGE vi/ O.P.NO.20577/02 8 ANTONY DOMINIC,J. --------------------- O.P.No.20577 OF 2002 ------------------------ Dated this the Ist day of June, 2009. JUDGMENT