IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 WP(C).No. 30684 of 2006(C) -------------------------- PETITIONER: --------------- M/S.MITHUN AGRO OILS (P)LTD., VAZHAKKUNNU, ALOOR P.O., THRISSUR DISTRICT, REP. BY ITS MANAGING DIRECTOR SHI.K.O.ITTOOP. BY ADV. MR. K.A.SHAMSUDEEN MR. K.I.ABDUL RASHEED RESPONDENTS: --------------- 1. THE KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM. 2. THE ASSISTANT ENGINEER, KSEB, ELECTICAL SECTION, CHALAKKUDY, THRISSUR DISTRICT. ADV. MR. C.K.KARUNAKARAN, SC FOR KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/07/2010, ALONG WITH WPC NO. 31728 OF 2006 . WPC No. 10956 of 2009 and WPC No. 9014 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) Nos. 30684 of 2006, 31728 of 2006, 10956 of 2009 and 9014 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 12th day of July, 2010 JUDGMENT The issue involved in all these four cases is closely interlinked with one another and hence is dealt with together. 2. The petitioner, Company, who is an SSI unit, engaged in manufacturing of edible oil, was provided with 25 HP industrial connection under LT IV tariff, on 20.10.2005 . While so, a surprise inspection was conducted by the Anti Power Theft Squad (APTS) on 6.11.2006, wherein some incriminating circumstances were brought to light, which led to issuance of Ext. P7 mahazar. The observation in Ext. P7 is that, in spite of the authorized connected load of 27 KW, the machinery installed revealed 41.6 KW and further that absolutely no 'manufacturing activity' was going on in the premises, but for some 'stocking and packaging' activities, which clearly come within the purview of LT VII A category. 3. Pursuant to the above inspection, Ext.P8 notice was issued, based on Ext.P7 mahazar and this was followed by Ext.P9 bill. Since the amount was not satisfied, coercive steps were taken against the petitioner, which was sought to be intercepted by filing W.P.(C) 30684 W.P. (C) No. 30684 of 2006 and connected cases. : 2 : of 2006, mainly contending that no provisional bill, as envisaged under Section 126 (2), was issued and that there was no opportunity to file any objection and further that the connection was actually an industrial one to be classified under LT IV tariff. The coercive proceedings were intercepted by this Court, directing to satisfy 1/3rd of the liability, which is stated as complied with. 4. Subsequently, another periodical bill was issued in the next month, in similar lines, which in turn is subjected to challenge by filing W.P.(C) No. 31728 of 2006, where also the coercive steps were intercepted, directing the petitioner to satisfy a sum of Rs.19,000/- as against Rs. 28,684/-, which is also stated as complied with. 5. The learned counsel for the petitioner submits that, there were subsequent periodical bills as well, which however were sought to be challenged and that the petitioner cleared the entire liability as demanded by the Board. 6. While so, another bill was issued on 12.1.2009, working out the proportionate consumption based on the 'excess load'. This was multiplied by two and the liability was sought to be realized from the petitioner; which was challenged by filing a Writ Petition before this Court, wherein the bill was directed to be considered as provisional, enabling the petitioner to file objection, if any and to finalize the matter W.P. (C) No. 30684 of 2006 and connected cases. : 3 : accordingly. But after considering the objection, the provisional bill was confined, which made the petitioner to approach this Court by filing W.P. (C) 10956 of 2009. 7. Incidentally, it is relevant to note that, there was an interim order passed by this Court in W.P.(C) 31728 of 2006, whereby it was observed that, the petitioner could very well move the Regulatory Commission for redressal of the grievance. This order in fact has been produced as Ext. P3 in W.P. (C) 10956 of 2006. Accordingly, the Regulatory Commission was impleaded in the party array and after considering the matter, the Commission held that, the excess connected load to an extent of '15 KW' was not correct or sustainable and that the same was liable to be scaled down to '7 KW'. With regard to the other issue regarding the classification/tariff, the Regulatory Commission upheld the tariff VII A, holding that, there was no manufacturing exercise in the unit of the petitioner and that stocking/packing activity pursued by the petitioner is liable to be included under LT VII A. Based on the above finding of the Commission, which has been produced as Ext.P6 in W.P. (C) 9014 of 2010, the liability of the petitioner was reworked, issuing a revised bill, which in turn has been produced as Ext.P7 and challenged in W.P.(C) 9014 of 2010. W.P. (C) No. 30684 of 2006 and connected cases. : 4 : 8. The respondents 1 and 2 have filed a detailed counter affidavit explaining the facts and circumstances and the unsustainability of the claim put forth by the petitioner. The Regulatory commission has also filed a statement in W.P (C) 9014 of 2010 seeking to sustain Ext. P6, classifying the unit as LT VII A. 9. Considering the materials on record and after hearing the learned counsel appearing for both the sides, two questions arise for consideration before this Court; firstly, whether the classification of unit as LT VII A, as against the contention of the petitioner to have it classified as LT IV industrial connection is correct or proper. The next question is, whether fixation of the liability and calculation made by the authorities concerned is in conformity with the order passed by the Regulatory Commission, as borne by Ext. P6 in W.P.(C) 9014 of 2010. 10. With regard to the first question, the facts and circumstances borne out by the records reveal that, no manufacturing activity was being pursued by the petitioner at the relevant time, but for the 'packing and stocking' activity going on, which clearly comes within the purview of tariff VII A. As it stands so, the claim of the petitioner to have the unit reckoned it included as LT IV industrial connection is not liable to be entertained. In any view of the matter, if at all the petitioner is aggrieved in any manner, because of the findings made by the W.P. (C) No. 30684 of 2006 and connected cases. : 5 : Regulatory Commission, as to the classification, there is an effective alternate remedy as provided under the Statute, by approaching the Tribunal and as such, no interference is warranted in this Writ Petition, invoking the discretionary jurisdiction under Article 226 of the Constitution of India. 11. With regard to the second issue, as to the correctness of the calculation made, it is very much obvious that, the figures were arrived at by the concerned respondents on the basis of the connected load calculated at '15 KW', which subsequently has been brought down by the Regulatory Commission, as borne by Ext. P6 in W.P (C) No. 9014 of 2010, to '7 KW' i.e. reducing more than 50 %. This being the position, the bills raised upon the petitioner, which have been impugned in W.P. (C) No. 30684 of 2006 and W.P. ( C) 31728 of 2006, are required to be modified to appropriate extent, based on the finding rendered by the Regulatory Commission as above. Eventhough the petitioner was made to enshoulder a higher liability in respect of the subsequent bills and though such subsequent bills have not been subjected to challenge, the learned standing counsel for the Board very fairly submits that the said aspect also requires to be reconsidered, as the actual connected load has been reduced by the Regulatory Commission from 15 KW to 7 KW and the Board has not chosen to W.P. (C) No. 30684 of 2006 and connected cases. : 6 : challenge the order passed by the Regulatory Commission with regard to the excess connected load. This being the position, this Court finds that the subsequent bills in this regard have also to be reworked by the concerned authority, for fixing the actual liability. 12. The remaining point is with regard to the imposition of penalty. The learned counsel for the petitioner submits that, as per Clause 50 (5) and (6) of the Terms and Conditions of Supply, 2005 unauthorised additional load shall be penalized and as per Section 126 (6) of the Electricity Act 2003, the penalty shall be made at 1.5 times for a period of 6 months, whereas the figures now worked out as borne by Ext.P9 impugned in W.P. (C) 15609 of 2009, are by taking 'two times' of the respective figures for the whole period of 'one year'. Reference is made to the contents of Regulation 51 of the Terms and Conditions of Supply, 2005 as well, dealing with unauthorized load. It is also brought to the notice of this Court that, the provisions under Section 126 of the Act got amended in the meanwhile. The amendment came in to force on 15.6.2007; whereas the inspection conducted by the APTS was much before on 6.11.2006 i.e. prior to coming into force of the amended provision. This being the position, the liability of the petitioner, if any, ought to have been worked out, only on the basis of the provisions, which stood as on the date of inspection i.e @ 1.5 times, W.P. (C) No. 30684 of 2006 and connected cases. : 7 : taking for a maximum period of six months. The legal position in this regard is fairly conceded by the learned stand counsel for the Board as well. This matter also requires to be considered and corrected by the appropriate authority, while fixing the liability. 13. In the above circumstances, the impugned proceedings are interfered to the above limited extent, while fixation of the tariff under 'LT VII A', as ordered by the Regulatory Commission vide Ext. P6 in W.P. (C) No. 9014 of 2010 is left intact. The actual amount payable by the petitioner based on Ext.P6 shall be reworked by the concerned Engineer; of course after giving an opportunity of hearing to the petitioner. The proceedings as above shall be finalized in respect of all the impugned bills and also in respect of the subsequent bills, which are sated as satisfied, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of the judgment. 14. It is made clear that no coercive steps shall be pursued to implement any of the impugned bills, till final orders are passed as above. It is also made clear that the petitioner shall continue to effect the payment under LT VII A tariff in respect of current/future bills. The Writ Petitions are disposed of as above. P. R. RAMACHANDRA MENON, JUDGE kmd