IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 OP.No. 19319 of 1997(Y) ---------------------------------- PETITIONER(S): -------------------------- COCHIN KAGAZ LIMITED, CEEYEM SHOPPING COMPLEX, THAIKATTUKARA, ALUVA 683 106, REPRESENTED BY ITS MANAGING DIRECTOR K.P.JOY. BY ADV. SRI. P.R.VENKITESH RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY (POWER) A DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM PATTOM PALACE P.O., THIRUVANANTHAPURAM. 3 THE SPECIAL OFICER (REVENUE), KERALA STATE ELECTRICITY BOARD, PATTOM PALACE P.O., THIRUVANANTHAPURAM. 4. THE DY. CHIEF ENGINEER, ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD, PERUMBAVOOR. R2 TO R4 BY BY ADV. SRI.P.SANTHALINGAM, SC, KSEB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP. NO.19319/1997 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GOVERNMENT ORDER GO(MS) 71/90/ID DTD. 21.5.1990. P2:- COPY OF THE BOARD ORDER B.O. NO.2015/90 DTD. 19.6.1990 ADOPTING EXT.P1. P3:- COPY OF THE GOVERNMENT ORDER G.O.(MS) 4/92/PD DTD. 6.2.1`992. P4:- COPY OF THE BOARD ORDER NO.559/92/PLG. COM. DTD. 27.3.1992 ADOPTING EXT.P3. P5:- COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND 4TH RESPONDENT DTD. 27.12.1996. P6:- COPY OF THE INVOICE RAISED ON KURIAN PACKAGINGS DTD 30.12.1996. P7:- COPY OF THE INVOICE FOR THE MONTH OF JANUARY 1997 DTD. 13.2.1997. P8:- COPY OF THE INVOICE FOR THE MONTH OF FEBRUARY 1997 DTD. 13.3.1997. P9:- COPY OF THE INVOICE FOR THE MONTH OF MARCH 1997 DTD. 11.4.1997. P10:- COPY OF THE INVOICE FOR THE MONTH OF APRIL 1997 DTD. 12.5.1997. P11:- COPY OF THE INVOICE FOR THE MONTH OF MAY 1997 DTD. 11.6.1997. P12:- COPY OF THE INVOICE FOR THE MONTH OF JUNE 1997 DTD. 14.7.1997. P13:- COPY OF THE INVOICE RAISED FOR THE MONTH OF JULY 1997 DTD. 13.8.1997. P14:- COPY OF THE INVOICE RAISED FOR THE MONTH OF AUGUST 1997 DTD. 9.9.1997. P15:- COPY OF THE INVOICE RAISED FOR THE MONTH OF SEPTEMBER 1997 DTD. 14.10.1997. P16:- COPY OF THE CERTIFICATE OF ELIGIBILITY DT.D 4.10.1997 ISSUED BY KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION. P17:- COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT DTD. 9.10.1997. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss P.N.RAVINDRAN, J. ----------------------------------------- O.P.No.19319 of 1997 ----------------------------------------- Dated this the 18th day of October, 2011 JUDGMENT The petitioner is a company registered under the Indian Companies Act, 1956. It established an industrial unit at Thaikattukara near Aluva for the manufacture of kraft paper and paper pulp. The petitioner's industrial unit was given electricity connection on 30.12.1996 and according to the petitioner it commenced commercial production on 31.12.1996. In this original petition the petitioner challenges Ext.P17 letter dated 9.10.1997 sent by the third respondent wherein the third respondent stated that the petitioner's industrial unit will be entitled to concessional tariff only in respect of the connected load as on the date of commencement of commercial production, ie. 300.20 KW and not on additional connected load of 581.23 KW which was connected to the petitioner's industrial unit with effect from 15.7.1997. Relying on Exts.P1 to P4 orders and Ext.P5 agreement entered into by the petitioner with the Kerala State Electricity Board it is contended that as the power allocation to the O.P.No.19319 of 1997 -:2:- petitioner's industrial unit is 1200 KVA and the petitioner's industrial unit had commenced commercial production on 31.12.1996, it is entitled to concessional tariff in terms of Exts.P1 and P3 government orders and Exts.P2 and P4 Board orders. 2. Ext.P17 letter impugned in the writ petition reads as follows:- “As per Board Order No.9/97 (Plg.Com.2166/92) Trivandrum dt. 2.1.97, the expanded/modernised/diversified portion of the plant/equipments put into commercial operation on or after 1.1.97 is not eligible for concessional power tariff. It is noted that additional load of 581.23 KW is connected to your firm Cochin Kagaz Ltd., with effect from 15.7.97 and hence concessional power tariff is not admissible for the above additional load. Please note that for considering your request for concessional power tariff separate metering equipments have to be provided for the original connected load of 300.20 KW for which Deputy Chief Engineer, Electrical Circle, Perumbavoor may be contacted. As the firm is eligible for the concessional power tariff only for the original connected load of 300.20 KW this may be specifically noted in the certificate issued by the Executive Director, KSIDC. The certificate dt. 4.10.97 is therefore returned herewith.” O.P.No.19319 of 1997 -:3:- 3. The petitioner contends that as the contract demand was for 1200 KVA and the petitioner's industrial unit had commenced commercial production on 31.12.1996 the petitioner is entitled to concessional tariff in respect of the electrical energy consumed in its industrial establishment for a period of five years commencing from 31.12.1996. The stand taken by the Board in its counter affidavit is that the petitioner is entitled to concessional tariff only in respect of the connected load of 300.20 KW and that any increase in the connected load after 1.1.1997 cannot be reckoned for the purpose of concessional tariff. The relevant averments in that regard are as follows:- “4. The energisation of the petitioner's factory was on 30.12.1996 and the monthly meter reading from January, 1997 onwards was taken and monthly invoices were issued at the ruling tariff as is being done to other HT consumers. In this matter it is relevant to note that the petitioner could procure and produce the Eligibility Certificate for granting concessional power tariff only on 6.10.1997. This is described in the petition as administrative delay. In view of this fact alone the petitioner cannot claim any benefit of tariff concession for the period prior to 6.10.1997. As per order G.O(MS)No.4/92/PD O.P.No.19319 of 1997 -:4:- dated 6.2.1992 the eligibility for the concession has to be certified by Kerala Financial Corporation (KFC) if they are the funding agencies and in other cases by the Director of Industries. In this case KSIDC is to give the Eligibility Certificate and on receipt of the same intimation was given to the petitioner by Ext.P17 that initially the connected load was only 300.2 KW and subsequently i.e. after 1.1.1997 additional load of 581.23 KW is connected with effect from 15.7.1997. So the petitioner is not entitled to concessional power tariff for this additional load of 581.23 KW since this was connected only with effect from 15.7.1997. On this basis a letter was sent and the same is ; marked as Ext.P17 by the petitioner. There was a further direction to the petitioner to get the Eligibility Certificate duly certified by the KSIDC incorporating this fact of additional ;pad pf 581.23 KW being connected with effect from 15.7.1997 i.e. about more than six months after the cut off date i.e. 31.12.1996 for being eligible to get concessional tariff. As it is the certificate which is crucial for deciding the eligibility is not available with the Board since it has been sent for correction, it is not seen to have been returned with the corrections. Hence this is a case where the Eligibility Certificate is absent.” O.P.No.19319 of 1997 -:5:- The Board does not however, dispute the fact that as per the agreement the contract demand was for 1200 KVA. 4. The issue raised by the petitioner is covered in its favour by the decision of a Division Bench of this Court in W.A.No.2245 of 2006 wherein the Division Bench held that even in respect of additional power allocation made after 31.12.1996, the consumer is entitled to concessional tariff. In the instant case there was no additional power allocation to the petitioner. No such additional power allocation was also necessary in view of the fact that the contract demand was 1200 KVA and that the connected load was well within the said limit. The only ground on which the petitioner was denied concessional tariff for the entire power consumed in its factory was that the connected load on the date of commencement of commercial production was only 300.20 KVA and that from 15.7.1997 the connected load stood increased by 581.23 KVA. In view of the binding decision of the Division Bench of this Court in W.A.No.2245 of 2006, the stand taken by the Kerala State Electricity Board in Ext.P17 cannot be sustained. Faced with that situation Sri.P.Santhalingam, learned Senior Counsel appearing for the Kerala State Electricity Board, O.P.No.19319 of 1997 -:6:- submitted that the petitioner has not proved the fact that its industrial unit started commercial production on or before 31.12.1996 and therefore, the petitioner is not entitled to the benefit of concessional tariff. I am afraid the said contention cannot be accepted. In Ext.P7 bill issued by the Kerala State Electricity Board it is stated that the electricity connection was given on 30.12.1996. Demand charges were also levied for two days in December 1996 based on the High Tension agreement with the petitioner. That apart, the respondents have no case in Ext.P17 or in the counter affidavit that the petitioner did not commence commercial production on or before 1.1.1997. The only ground raised in the counter affidavit is that concessional tariff cannot be extended to the petitioner in respect of the additional connected load of 581.23 KW with effect from15.7.1997. Such being the situation I find no merit in the contention that the petitioner's industrial unit is not entitled to the concessional tariff. I accordingly allow the original petition, quash Ext.P17 and declare that the petitioner's industrial unit will be entitled to concessional tariff in terms of Exts.P1 and P3 Government orders O.P.No.19319 of 1997 -:7:- and Exts.P2 and P4 Board orders for a period of five years from 31.12.1996. The Board shall consequently extend the said benefit to the petitioner by making suitable adjustments in the bills to be issued in future. Necessary steps in that regard shall be taken and a statement of accounts issued to the petitioner within three months from the date of receipt of a certified copy of this judgment. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- O.P.No.19319 of 1997 ---------------------------- JUDGMENT 18th October, 2011