IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 OP.No. 20873 of 2000(I) --------------------------------- PETITIONER: ------------------ BANNARI AMMAN STEELS (P) LTD., NELEPPILLY VILLAGE, NATTUKAL P.O., PALAKKAD DISTRICT, REP.BY ITS MANAGING DIRECTOR R. ELANGOVAN BY ADV. SRI.K.SRIKUMAR SRI.R.BINU RESPONDENTS: ----------------------- 1. THE KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, PATTOM, TRIVANDRUM. 2. THE SPECIAL OFFICER (REVENUE), OFFICE OF THE FINANCIAL ADVISOR & CHIEF ACCOUNTS OFFICER, KERALA STATE ELECTRICITY BOARD, TRIVANDRUM. 3 THE CHIEF ENGINEER, (COMMERCIAL & THERMAL), KERALA STATE ELECTRICITY BOARD, TRIVANDRUM. BY ADV. SRI.P.SANTHALINGAM, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/02/008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.20873/2000 ORDER ON CMP. NO.34973/2000 IN OP. NO.20873/2000 DISMISSED 12/02/2008 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER NO.HTB/1`7/1757/95-96 DT. 3.7.95. EXT.P1A:- COPY OF THE NOTIFICATION NO.G.O. (MS) NO.71/90/ID DT. 21.5.90. EXT.P2:- COPY OF THE ORDER NO.2785/97 DT. 12.12.97. EXT.P3:- COPY OF THE INVOICE NO.32960 DT. 11.2.98. EXT.P4:- COPY OF THE INTERIM ORDER IN OP. NO.19976/98 DT. 8.6.99. EXT.P5:- COPY OF THE APPEAL MEMORANDUM DT. 18.1.98. EXT.P6:- COPY OF THE ORDER NO.HTB 17/1757/99-2000 DT. 3-2000. EXT.P7:- COPY OF THE NOTICE NO.HTB.17/1757 DT. 6.7.2000. /TRUE COPY/ P.S.TO JUDGE tss P.N.Ravindran, J. =============== O.P.No.20873 of 2000 ================ Dated this the 12th day of February, 2008. JUDGMENT The petitioner is a high tension consumer of electrical energy. By virtue of Ext.P1(A) government order dated 21.5.1990, the petitioner was exempted from power cut for a period of five years from the date of commencement of commercial production. Ext.P1 discloses that the petitioner was also entitled to supply of electrical energy at Pre 1992 trariff rates for a period of five years commencing from 30.3.1995 and ending with 29.3.2000. During the year 1997,power cut was imposed on the high tension consumers. By Ext.P2 order dated 12.12.1997 the Board lifted the power cut on high tension and extra high tension consumers. In Ext.P2, the Board inter alia ordered as follows: "3. Assuming that KSE Board will get power to the extent indicated above from the Eastern Regional Electricity Board, the Kerala State Electricity Board hereby orders that 30% power cut now in force on OP 20873/00 -: 2 :- HT/EHT consumers shall be withdrawn from 0800 hrs on 15.12.1997 subject to the following conditions: i) Out of the total monthly consumption, the first 30% consumption of the HT and EHT consumers will be charged at the rate to be determined after finalisation of the rate, terms and conditions of the power proposed to be purchased from the Eastern Region. The rates and the date from which these rates will be made applicable will be announced later by the KSE Board. However, the date from which this rate will be made applicable will be from the date from which Board purchases power from Eastern Regional Electricity Board. Until that date, the billing will be done as per the tariff notification of the Board applicable from time to time. This will be applicable to the manufacturing industries eligible for pre-92 tariff also. ii) The remaining 70% of the monthly consumption will be billed as per the tariff notification of the KSE Board applicable from time to time. The manufacturing industries eligible for pre-92 tariff will be charged at the pre-92 rate only for this latter 70% of the total consumption till the expiry of the five year period from the date of commercial production. iii) The billing demand of the industries eligible for pre-92 tariff will be charged at the pre-92 tariff OP 20873/00 -: 3 :- only till the expiry of the five year period from the date of commercial production. The billing demand of other HT/EHT consumers will be as per the tariff notification of the Board applicable from time to time. iv) Thirty minutes cyclic load shedding in the night will continue." 2. Be that as it may, it is the petitioner's complaint that Ext.P3 invoice dated 11.2.1998 was issued for the month of January 1998, levying energy charges at higher rates for 30% of the power consumed. Aggrieved by Ext.P3 the petitioner filed Ext.P5 appeal before the third respondent. By Ext.P6 order passed in March, 2000, the third respondent rejected the appeal holding that it is clearly stipulated in Ext.P2 order issued by the Board that out of the total monthly consumption, the first 30% consumption will be charged at higher rates and that extra high tension consumers can enjoy concessional rate of tariff for the remaining 70% consumption. Ext.P6 is under challenge in this original petition. 3. The learned counsel appearing for the petitioner, relying on Ext.P1 contended that Ext.P2 order dated 12.12.1997 cannot be enforced against the petitioner. The learned Standing Counsel OP 20873/00 -: 4 :- appearing for the respondents on the other hand contended that the Board has got power to unilaterally withdraw the offer held out in Ext.P1 and to levy energy charges at the rates set out in Ext.P2. 4. I have considered the rival contentions. It is evident from a reading of Ext.P2 that out of the total monthly consumption, the first 30% consumption of the high tension and extra high tension consumers will be charged at the rates to be determined after finalisation of the rate, terms and conditions of the power proposed to be purchased from the Eastern Regional Electricity Board. Ext.P2 also discloses that the rates and the date from which these rates will be made applicable will be announced later by the Board and that the date from which this rate will be made applicable will be from the date from which the Board purchases power from the Eastern Regional Electricity Board. Ext.P2 further states that until that date, the billing will be done as per the tariff notification of the Board applicable from time to time and that it will be applicable to the manufacturing industries eligible for pre 1992 tariff also. The petitioner had contended before the third respondent that the Board purchased OP 20873/00 -: 5 :- power from the Eastern Regional Electricity Board only in February, 1998 and hence, the petitioner is not liable to pay for the energy consumed in January, 1998 at the higher rates fixed by the Board. The said contention of the petitioner is not disputed by the Board in the counter affidavit filed in the instant case. Nor is there any reference to the said contention in Ext.P6 order passed by the third respondent. On the other hand, the counter affidavit filed on behalf of the respondents discloses that it was only by order dated 31.1.1998 that the rates for power purchased from the Eastern Regional Electricity Board were determined as Rs.3.20 per unit. Ext.P3 bill was issued on 11.2.1998 in respect of the power consumed during January, 1998. Even going by the statement in the counter affidavit, it is evident that the Board could not have levied energy charges fixed as per order dated 31.1.1998 in respect of the power consumed by the petitioner for the month of January, 1998. 5. Exts.P3 and P6 are accordingly quashed and the respondents are directed to issue a revised bill to the petitioner based on the pre 1992 tariff rate in terms of the promise held out to the petitioner in Ext.P1 and reiterated in Paragraph 3(iii) of OP 20873/00 -: 6 :- Ext.P2 in respect of the energy consumed in the petitioner's factory for the month of January 1998. Needless to say, the petitioner will not be entitled to such relief for the period thereafter. The original petition is allowed. No costs. P.N.Ravindran, Judge. ess 12/2