IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 OP.No. 12306 of 2002(M) ----------------------- PETITIONER(S): --------------- M/S. PALM FIBERS & YARS TRADING CO., PATHIRAPPALLY, ALAPPUZHA, REPRESENTED BY ITS PROPRIETOR. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVT., POWER DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER (TARIFF & COMMERCIAL) KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. SPECIAL OFFICER (REVENUE), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. ASST. EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, S.L. PURAM. ADV. SRI.P.SANTHALINGAM, SC, KSEB FOR R2 TO R4 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R2 TO 4 MR.I.V.PRAMOD, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/05/2009, THE COURT ON 29/05/2009 DELIVERED THE FOLLOWING: OP NO.12306/2002 ORDER ON CMP NO.21005/2002 IN OP NO.12306/2002 & CMP NO.30086/2002 IN CMP NO.21005/2002 IN OP NO.12306/2002 DISMISSED. 29/05/2009 SD/- (ANTONY DOMINIC, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF GOVT.ORDER G.O.(MS)4/92/PD DATED 06/02/92. P2 : COPY OF ELIGIBILITY CERTIFICATE DATED 14/10/97 ISSUED BY the GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ALAPPUZHA. P3 : COPY OF JUDGMENT DATED 07/04/2000 IN OP NO.26490/99. P4 : COPY OF PROCEEDINGS DATED 16/01/2002 ISSUED BY R3 TO THE PETITIONER. P5 : COPY OF APPEAL DATED 28/01/2002 FILED BY THE PETITIONER BEFORE R2. P5(a) : COPY OF DD FOR RS.5 LAKHS SEND BY THE PETITIONER TO R3 DATED 29/01/2002. P5(b) : COPY OF DD FOR RS.5 LAKHS DATED 22/02/2002. P6 : COPY OF ORDER DATED 16/04/2002 PASSED BY R2. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- O.P. No.12306 of 2002 --------------------------------- Dated, this the 29th day of May, 2009 J U D G M E N T The petitioner claims to be a Small Scale Industrial unit. In the premises of the petitioner, they were availing supply in two consumer numbers, viz. Consumer Nos.13070 & 13427, where they were classified as Low Tension Consumer. In so far as Consumer No.13070 is concerned, the power allocated was 33 KW and the commercial production started on 11/07/1994. In so far as Consumer No.13427 is concerned, the power allocated was 76 KW and the commercial production commenced on 14/07/1995. 2. On 06/02/1992, the Government of Kerala had issued Ext.P1 providing that industries, which have commenced commercial production or have effected substantial capacity expansion, will be eligible for certain concessions including that they need to pay only Pre 92 tariff for five years from the date of commencement of their commercial production or capacity expansion as certified by the District Industries Centre. In so far as O.P.No.12306/2002 -2- the petitioner is concerned, in respect of the aforesaid two LT connections, by Ext.P2 certificate dated 14/10/1997, their eligibility for the benefit of Ext.P1 was certified by the General Manager, District Industries Centre. 3. The petitioner submits that in the meanwhile, their requirement of power allocation increased and they availed of 300 KVA and that, as a result of this, they had to become a High Tension consumer with effect from 15/05/1998. It is the case of the petitioner that it was on the directions of the Board only that they applied to be classified as HT consumer and that it was only a conversion of supply under LT into HT. 4. On the strength of Ext.P2, and in view of their eligibility for the benefit of Ext.P1, they made an application for the benefit of Ext.P1, that was rejected on the ground that the application was made beyond the last date prescribed for making the application. That order was challenged before this Court and the case was considered along with a batch of identical cases. The cases were disposed of by Ext.P3 judgment setting aside the cut of date and directing consideration of their applications on merits. It is stated O.P.No.12306/2002 -3- that during the pendency of the OP, they were allowed to pay the energy charges at concessional rate and accordingly, payment was also being made. In writ appeals filed by the Board, Ext.P3 judgment was confirmed by a Division Bench of this Court. 5. Accordingly their claim was considered and by Ext.P4, the respondents held that the petitioner is ineligible for the benefit of Ext.P1. Against Ext.P4, the petitioner filed Ext.P5 appeal, which was disposed of by Ext.P6 order. In Ext.P6, while confirming Ext.P4 order, the appellate authority held that the petitioner is eligible for the benefit of Ext.P1 till 15/05/1998 when they became HT consumer. It was also ordered that the benefit to the extend admissible, will be got reimbursed from the Industries Department. It is challenging Exts.P4 & P6 and also praying for a direction to the respondents to extend the petitioner the benefit of Ext.P1 Government Order for the quantity of energy supplied to them under the LT category for the full five year period as certified in Ext.P2, that this original petition is filed. 6. Statement has been filed by the respondents. In so far as the directions in Ext.P6 that the petitioner can claim O.P.No.12306/2002 -4- reimbursement of the admissible amount from the Industries Department is concerned, in view of the judgment of this Court in Premium Ferro Alloys Ltd. v. KSEB & Others, (OP No.7822/1998) and other cases, the liability of the Board to extend the benefit to the consumer is rightly not disputed by the learned standing counsel for the Board. 7. The main controversy is regarding the claim of the petitioner for continued supply of the original quantity for the full 5 year period specified in Ext.P1. In the statement filed by the learned standing counsel for the Board, they have taken up the position that initially the petitioner was availing of supply under the LT category with consumer Nos.13070 & 13427. According to the Board, this was not a case of clubbing together the LT supply to form HT supply. It is stated that on the application made by the petitioner, they were allotted 300 KVA of energy and in terms of the regulations of the Board, such consumers are to be categorised under the HT category. According to the Board, the petitioner was accordingly supplied energy under the HT category as a new consumer with effect from 15/05/1998. On this basis, it is argued O.P.No.12306/2002 -5- that since the supply was as a new consumer with effect from 15/05/1998, such supply was beyond the period prescribed in Ext.P1, namely 1992-96. Therefore, according to the respondents, the petitioner is eligible only for the benefit of Ext.P1 for the period upto 15/05/1998. 8. A reading of Ext.P1 shows that only those consumers, who have commenced commercial production during the period 1992-96 are eligible for the concessions extended by the said order. Admittedly, the consumer Nos.13070 & 13427 were under the LT category and commercial production commenced on 11/07/1994 & 14/07/1995 respectively, and this has been certified in Ext.P2. This supply continued till 15/05/1998 under the LT category and the LT installation was dismantled on 23/05/1998. From 15/05/1998, on the materials produced, it is seen that the supply as under the HT category as a new consumer. Therefore, as an HT consumer, the petitioner commenced commercial production only with effect from 15/05/1998. If that be so, commencement of commercial production as HT consumer is out side the period of 1992-96 prescribed in Ext.P1, and consequently the petitioner, as O.P.No.12306/2002 -6- an HT consumer, does not come within the purview of Ext.P1. Necessarily therefore, the claim for the extension of the benefit of Ext.P1, even for the quantity covered by the LT supply beyond 15/05/1998 is inadmissible and its rejection by Ext.P6 deserves to be uphold. The writ petition, therefore, will stand disposed of directing that admissible benefit towards Consumer Nos.13070 & 13427 for 33 KW and 76 KW supplied to the petitioner and certified in Ext.P2, will be released to the petitioner up to 23/05/1998, when the LT installation was dismantled without insisting on the benefit being reimbursed from the District Industries Department as held by this Court in the judgment in OP No.7622/1998. The original petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg