IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 OP.No. 24591 of 1998(C) ---------------------------------- PETITIONER: ------------------- M/S. ESSEN OXIDISERS AND CHEMICALS (P) LTD., MANJESHWAR, KASARGOD, KERALA, REPRESENTED BY ITS MANAGING DIRECTOR, S.V. MOHANDAS PRABHU. BY ADV. SRI.V.SIVASWAMY, ADV. SRI.K.I.MAYANKUTTY MATHER, ADV. SMT.K.P.RENJINI. RESPONDENTS: ----------------------- 1. THE KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, PATTOM, PALACE.P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE CHIEF ENGINEER (THERMAL AND COMMERCIAL), KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, PATTAM, PALACE.P.O., THIRUVANANTHAPURAM. 3. THE SPECIAL OFFICER (REVENUE), KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, PATTOM, PALACE.P.O., THIRUVANANTHAPURAM. 4. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, KASARGODE. 5. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, MANJESHWAR. 6. THE TAHSILDAR (REVENUE RECOVERY), KASARGODE. BY ADV.SRI.C.K.KARUNAKARAN, SC, KSEB, ADV. SRI.R.K.VENU NAYAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 24591/1998-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER SENT BY THE PETITIONER TO THE R.1. BOARD DTD. 22/01/1998. EXT.P.2: COPY OF THE GOVERNMENT ORDER NO. G.O. (MS).NO.3/98/PD DTD. 23/01/1998. EXT.P.3: COPY OF THE LETTER SENT BY THE PETITIONER TO THE R.1. BOARD 16/03/1998. EXT.P.4: COPY OF THE LETTER SENT BY THE PETITIONER TO THE R.1. BOARD 12/03/1998. EXT.P.5: COPY OF THE LETTER SENT BY THE PETITIONER TO THE RESPONDENTS DTD. 31/03/1998. EXT.P.6: COPY OF THE INVOICE AND STATEMENT BY THE R.1. TO THE PETITIONER 09/06/1998. EXT.P.7: COPY OF THE LETTER SENT BY THE PETITIONER TO THE R.3 DTD. 22/06/1998. EXT.P.8: COPY OF THE NOTICE ISSUED BY THE R.3. TO THE PETITIONER 18/06/1998. EXT.P.9: COPY OF THE ORDER PASSED BY THE R.5. NO.B.O.NO.236/98 (PLG.COM.3516/98) DTD. 31/01/1998. EXT.P.10: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P. NO. 11962/1998 DTD. 26/06/1998. EXT.P.11: COPY OF THE LETTER SENT BY THE R.1. TO THE PETITIONER DTD. 19/11/1998. EXT.P.12: COPY OF THE LETTER SENT BY THE PETITIONER BY REGISTERED POST TO THE R.1. DTD. 30/11/1998. EXT.P.12.A: COPY OF THE ACKNOWLEDGEMENT CARD DTD. 30/11/1998. EXT.P.13: COPY OF THE DEMAND NOTICE SENT BY THE R.3. TO THE PETITIONER BY REGISTERED POST. EXT.P.14: COPY OF THE POSTAL ACKNOWLEDGEMENT CARD EVIDENCING RECEIPT OF EXT.P.1 BY THE BOARD DTD. 27/01/1998. EXT.P.15: COPY OF THE POSTAL ACKNOWLEDGEMENT CARD EVIDENCING RECEIPT OF EXT.P.4. BY THE BOARD DTD. 12/03/1998. EXT.P.16: COPY OF THE LETTER SENT BY THE PETITONER TO THE R.4. DTD. 22/07/2003. EXT.P.17: COPY OF THE LETTER SENT BY THE R.4. TO THE PETITIONER DTD. 20/10/2003. EXT.P.18: COPY OF THE LETTER SENT BY THE PETITIONER TO THE R.4. DTD. 07/08/2003. EXT.P.19: COPY OF THE LETTER SENT BY THE PETITIONER TO THE R.4. DTD. 17/11/2003. O.P. NO. 24591/1998-C: EXT.P.20: COPY OF THE LETTER SENT BY THE R.4. TO THE PETITIONER DTD. 08/01/2004. EXT.P.21: COPY OF THE LETTER SENT BY THE PETITIONER TO THE R.4. DTD. 31/01/2004. EXT.P.22: COPY OF THE LETTER SENT BY THE R.4. TO THE PETITIONER DTD. 09/04/2004. EXT.P.23: COPY OF THE LETTER SENT BY THE PETITIONER TO THE R.4. DTD. 30/04/2004. EXT.P.24: COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN CONTEMPT CASE (C). NO. 1530/2004 DTD. 05/01/2005. EXT.P.25: COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE R.6. DTD. 02/01/2005. //TRUE COPY// P.A. TO JUDGE. prv. S.SIRI JAGAN, J. ================== O.P.No.24591 of 1998 ================== Dated this the 13th day of November, 2008 J U D G M E N T The issue involved in this original petition is the liability of the petitioner to pay current charges at higher rates in accordance with Ext.P2 Government order during the period of power cut. In 1998, 30 per cent power cut was imposed for High Tension (HT) and Extra High Tension (EHT) consumers of electricity. For regulation of consumption of electricity, by HT and EHT consumers during power cut period, the Government issued Ext.P2 Government order dated 23.1.1998, as per which the Electricity Board was to fix the base average of each HT/EHT consumer, 70 per cent of which was to be fixed as the quota for each consumer for a particular month. In case a consumer uses electricity in excess of the monthly quota so fixed, the first 30 per cent consumption would be charged at the rate payable for the power being purchased from the Eastern Regional Electricity Board (EREB) and the balance 70 per cent would be charged at the ruling tariff fixed for the electricity produced by the Kerala State Electricity Board from time to time. It was further stated that if any HT/EHT and Deemed HT consumer does not require o.p.24591/98 2 power at the higher rate, they have freedom to restrict the consumption from 1.2.1998 not exceeding 70 per cent of their base average consumption. The principles for fixing the base average consumption were also stipulated in Ext.P2 Government order. So, according to the petitioner, as per Ext.P2, if the petitioner did not want to consume electricity at EREB power rates, all what they had to do was to restrict their consumption to 70 per cent of the base average. 70 per cent of the base average of the petitioner was 108877 unit per month, which was fixed as their monthly quota. The petitioner claims that even before Ext.P2 was published, the petitioner, by Ext.P1 letter, informed the Board that they are not now in a position to use more power and may even find it difficult to consume full quota available to them at least till May, 1998. They, therefore, intimated the Board that they cannot now opt for Bengal power and have to use only Kerala power. While so, the Board issued Ext.P9 order dated 31.1.1998, whereby it was stated that those HT/EHT/Deemed HT consumers who do not require EREB power have to intimate the Board before 5 p.m. on 31.1.1998, failing which irrespective of whether they use the power more than their o.p.24591/98 3 quota, the first 30 per cent of their consumption would be billed at EREB rates. It is also stated in Ext.P9 that the Board had issued a press release on 25.1.1998 to the above effect. According to the petitioner, the petitioner did not come across any such press release. They point out that Ext.P9 order itself was issued only on 31.1.1998 requiring the consumers to intimate them regarding EREB before 5 p.m. on 31.1.1998. While so the petitioner claims to have issued Ext.P4 letter dated 12.3.1998 to the Board requesting to take on record the petitioner's intimation not to consume EREB power till the end of May, 1998. Thereafter, the petitioner received Ext.P3 form of advice of payment of current charges directing them to pay electricity charges for the month of February 1998, wherein it was informed that they would be liable to pay Rs.2,48,505/- for the month of February, 1998, which form of advice of payment of current charges was to be returned by the petitioner to the Board along with the payment. In Ext.P3, 30 per cent of consumption of the petitioner was billed at EREB rates. The petitioner paid the amount under protest by registering their protest in Ext.P3, while returning the same along with the payment. Subsequently, by o.p.24591/98 4 Ext.P5 dated 31.3.1998, the petitioner requested the Board to charge them only at prevailing Kerala State tariff and to adjust the excess collected against Ext.P3 for the month of March, 1998. However, the petitioner was again served with Ext.P6 bill dated 9.6.1998 for the month of May, 1998, wherein also the first 30 per cent consumption was billed at EREB rates, although the petitioner had not exceeded their quota for that month also. The petitioner filed Ext.P7 objection to the same intimating them that they are paying current charges only at Kerala tariff, since they are not liable to pay charges at EREB rates. They paid current charges at Kerala tariff. Again the Board, by Ext.P8, issued a disconnection notice directing the petitioner to pay the balance also. Immediately the petitioner approached this Court by filing O.P.No. 11962/1998 in which, this Court passed Ext.P10 judgment directing the Board to consider Exts.P1 and P4 in this original petition. The petitioner's request for option was stated to be made in Ext.P1 and P4. It was further directed that till a decision is taken by the Board on Exts.P1 and P4, the respondents shall not insist on payment of current charges at the rate of Rs.3.20 per unit on condition that the petitioner pays o.p.24591/98 5 normal charges. In compliance with Ext.P10 judgment the Board passed Ext.P11 order taking the contention that Exts.P1 and P4 were never received by the Board and therefore, the petitioner is required to pay for the first 30 per cent of their consumption at EREB rates. Thereafter, by Ext.P13, the Board demanded balance amount payable by the petitioner in accordance with that decision, amounting to Rs.3,06,189/-. The petitioner is challenging Exts.P11 and P13 in this original petition. 2. The petitioner raises two contentions. First is that in Ext.P2 there is no stipulation that if a consumer does not intimate his option for power under EREB rates, he would automatically be billed for the first 30 per cent of the consumption at EREB rates whether they use energy in excess of the quota fixed for him. According to the petitioner, the said requirement was first included only in Ext.P9 which is dated 31.1.1998 requiring the consumers to intimate their option by 5 p.m. on 3.1.1998. The petitioner would submit that although Ext.P9 referred to a press release dated 25.1.1998, the petitioner never came across any such press release. Even otherwise, according to the petitioner, before issuing Ext.P9 there could not have been any press release o.p.24591/98 6 at all because such press release would not be supported by any order of the Board or Government. In fact in the absence of any such stipulation in Ext.P2, even the Board could not have made such a stipulation on their own, is the contention raised. That being so, according to the petitioner, even if the petitioner had not intimated his option as stipulated in Ext.P9, they could not have been billed at EREB rates for any part of their consumption in so far as they never consumed electricity in excess of the quota fixed for them, ie. 70 per cent of the base average. 3. The petitioner would further submit that even assuming that there was such a requirement requiring the consumers to intimate their option regarding EREB power, the petitioner had in fact by Exts.P1 and P4 as well as Ext.P5, intimated their option not to draw EREB power. According to the petitioner, Exts.P1, P4 and P5 were issued by registered post acknowledgment due and the statement in Ext.P11 that Exts.P1 and P4 were not received, is not correct. They also point out that the statement in Ext.P11 that in Ext.P4 they did not refer to Ext.P1 is not relevant because it was not necessary since Ext.P4 was issued prior to receipt of Ext.P3, at which time, the petitioner o.p.24591/98 7 was not aware that such a dispute would arise at all. Therefore, according to the petitioner, even assuming that there was such a stipulation, which required to be complied with by the petitioner, they had in fact complied with such a condition. The petitioner therefore, submits that they are not liable to pay electricity charges at EREB rates as demanded by the Board. 4. The 1st respondent is said to have filed a counter affidavit which is not on record. The counsel for the petitioner has handed over for my perusal a copy of the counter affidavit served on him, by the counsel for the Board. In the same, it is reiterated that the Board never received Ext.P1 or Ext.P4. They would submit that the petitioner had written Ext.R1(a) letter dated 30.11.1998 along with which they had forwarded Ext.R1(b) postal acknowledgment card stated to be for Ext.P1. According to the 1st respondent, Ext.R1(b) was the acknowledgment for Ext.R1(c) advice of payment of current charges forwarded by the petitioner along with their payment of current charges for the month of December, 1997 and therefore, the contention of the petitioner that Ext.R1(b) is the acknowledgment card for Ext.P1, is clearly unsustainable. They also reiterate that this is proved by o.p.24591/98 8 the fact that Ext.P4 does not refer to Ext.P1 letter at all. According to them, the purport of Exts.P2 and P9 is that if a consumer does not intimate their option regarding EREB power before 31.1.1998, they would automatically become liable to pay for the first 30 per cent of their consumption at EREB rates whether or not they exceed the quota fixed for them. They, therefore, support the impugned order and demand. 5. I have considered the rival contentions in detail. 6. Ext.P2 is the only Government order on the subject. It does not stipulate that if a consumer does not intimate his option regarding EREB, he would automatically be billed at EREB rates for the first 30 per cent consumption whether they use power in excess of the quota or not. The Government has not issued any subsequent orders also containing such stipulation. Therefore, I do not think that on the basis of Ext.P2 the Board can direct consumers who have not consumed power in excess of their quota to pay for the first 30 per cent of their consumption at EREB rates whether or not they have intimated their option regarding EREB rates. Even assuming that the Board can make such a stipulation as a rider to Ext.P2, then also that has to be o.p.24591/98 9 specifically intimated to the consumers. In Ext.P9 what the Board says is that the Board has issued a press release on 25.1.1998 in this regard in all dailies for information of HT/EHT/deemed HT consumers. The Board has not chosen to produce a copy of that press release or the dailies to prove their contention. However, learned Standing Counsel makes available to me a copy of the counter affidavit filed in O.P.No. 8985/1998 along with which a copy of the press release published in Indian Express dated 25.1.1998 is produced. The same reads thus: “Bengal power Thiruvananthapuram: Power from Bengal, to be made available from from February 1, would cost Rs.3.20 plus surcharge and duty. HT, EHT and deemed HT consumers, who do not require Bengal power, should intimate KSEB in this regard.” If that is the press release dated 25.1.1998 referred to in Ext.P2, then also I must hold that there was no such stipulation at all. The press release dated 25.1.1998 mentioned in Ext.P9 as press release quoted above is self explanatory. Based on that press release certainly the Board cannot impose on the unsuspecting consumers such a condition which would result in the consumers paying first 30 per cent of their consumption at EREB rates whether or not they consume electricity in excess of their quota for not intimating their option regarding EREB power before 5 o.p.24591/98 10 p.m. on 31.1.1998. 7. As regards the dispute regarding whether the Board received Exts.P1 and P4 or not, there is no conclusive evidence in respect of the same before me. The petitioner relies on Ext.R1 (b), which Board says is acknowledgment in respect of Ext.R1(c) and not Ext.P1. There is no way for ascertaining who is correct and who is not. 8. Whatever that be, I do not think that in view of my decision on requirement of option itself, the Board can now demand from the petitioner current charges for the first 30 per cent of their consumption at EREB rates, in so far as the petitioner had not consumed electricity in excess of the monthly quota fixed for them in the absence of any enforceable condition to the effect that if they do not intimate their option regarding EREB power on or before 31.1.1998, they would be liable to pay EREB rates for the first 30% consumption irrespective of whether they consume more than their prescribed monthly quota or not. As per Ext.P2 only if they exceed the monthly quota fixed for them they would become liable to pay electricity charges for the first 30 per cent of their consumption at EREB rates. Therefore, o.p.24591/98 11 Exts.P11 and P13 are quashed. It is declared that the petitioner is liable to pay electricity charges in respect of the bills disputed in this original petition only at the Kerala tariff and not at EREB rates. The respondents can demand electricity charges from the petitioner only accordingly. If the petitioner is liable to pay any further amount at Kerala tariff for the period in question, the Board can issue fresh demand for that amount only. If the petitioner has paid excess amount the same would be refunded to the petitioner. It is submitted before me that subsequently the electrical installation of the petitioner has been dismantled on 1.8.2003 and as a result, the petitioner has become entitled to refund of the security deposit. If the petitioner is entitled to refund of any security deposit, the same shall also be paid. Orders in accordance with law as per the above directions shall be issued by competent among the respondents, within one month from the date of receipt of a certified copy of this judgment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.24591/98 12 S.SIRI JAGAN, J. ================ O.P.No.24591 of 1998-C ================ J U D G M E N T 13th November, 2008 o.p.24591/98 13