IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 OP.No. 25822 of 2002(Y) ----------------------- PETITIONER: ------------ K.S.RAVEENDRAN NAIR, PROPRIETOR, ROCKS-KURUVICHALIL P.P.ROAD, PATTIMATTOM P.O., (VIA), KIZHAKKAMBALAM, ERNAKULAM (DIST). BY ADV. SRI.K.S.RAVINDRAN NAIR(PARTY-IN-PERSON) RESPONDENTS: ------------- 1. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. GOVERNMENT OF KERALA, SECRETARY POWER (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, PERUMBAVOOR, ERNAKULAM (DIST). ADDL.R4: THE SECRETARY GENERAL, CENTRAL ELECTRICITY AUTHORITY, “SEWA BHAVAN”, R.K.PURAM, NEW DELHI – 110 066. (ADDL.R4 IMPLEADED VIDE ORDER DATED 3.12.2007 ON I.A.No.12712/07) BY GOVERNMENT PLEADER SHRI BENJAMIN PAUL FOR R2 ADV.SRI.C.K.KARUNAKARAN, SC, KSEB FOR R1& 3 SRI.T.SANJAY FOR ADDL.R.4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.25822/02 2 APPENDIX IN O.P.NO.25822/02 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF ELIGIBILITY CERTIFICATE NO.B1/11599/97 .LDIS. DATED 3.1.98 ISSUED TO THE PETITIONER BY GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ERNAKULAM. EXT.P2: TRUE COPY OF CASH DEPOSIT RECEIPT NO.000445 DATED 7.1.92 FOR AN AMOUNT OF rS.5145/- WITH CONSUMER NO.5711 PAID TO THE KERALA STATE ELECTRICITY BOARD. EXT.P3: TRUE COPY OF CASH RECEIPT NO.000430 DATED 7.1.92 FOR AN AMOUNT OF RS.2,300/-, THE COMPLETE MATERIAL AND INSTALLATION CHARGES LEVIED JUST BEFORE EFFECTING THE ELECTRICAL SUPPLY. EXT.P4: GOVT. OF KERALA, NOTIFICATION G.O.(MS)NO.4/92/PD DATED 6.2.92 REGARDING THE EXEMPTION OF ENHANCED POWER TARIFF FOR INDUSTRIES WITH COMMERCIAL PRODUCTION DATE BETWEEN 1.1.92 AND 31.12.96. EXT.P5: SUBMISSIONS GIVEN TO DY.CHIEF ENGINEER ON 4.1.2001 FOR CONSIDERING THE APPLICATION AS PER DIRECTIONS IN O.P.No.7822/98 DATED 13.11.98 ISSUED BY THIS COURT. EXT.P6: CONSUMER DISPUTES REDRESSAL FORUM'S (ERNAKULAM) ORDER IN O.P.NO.417/01 DATED 29.8.2001 ALLOWING THE PETITION WITH DIRECTION TO CONSIDER FOR REIMBURSEMENT AS PER DIRECTION ISSUED BY THIS COURT. EXT.P7: THE PETITIONER'S SUBMISSION DATED 11.12.2001 REGARDING THE MODALITY OF CALCULATION STATEMENT. EXT.P8: EXECUTIVE ENGINEER'S LETTER AGREEING TO REFUND THE EXCESS AMOUNT LEVIED WITHOUT ANY GUIDELINES REGARDING THE MODE OF CALCULATION OF REFUND. EXT.P9: KSEB'S FINAL BILL NO.20446 DATED 27.10.01 TO THE EFFECT THAT THEY CHARGED PETITIONER FOR BELATED PAYMENT 24% INTEREST IN OCTOBER AND SEPTEMBER, 2001. EXT.P10: TRUE COPY OF CLAUSE © OF REGULATION 14 PERTAINING TO 'CONDITIONS OF SUPPLY OF ELECTRICAL ENERGY' RELEVANT TO 'SECURITY DEPOSIT' ISSUED BY THE FIRST RESPONDENT. EXT.P10(a): TRUE PHOTOSTAT COPY OF CLAUSE (e) OF REGULATION 19 PERTAINING TO 'CONDITIONS OF SUPPLY OF ELECTRICAL ENERGY' PERTINENT TO THE OWNERSHIP OF 'SERVICE LINES'. EXT.P11: TRUE COPY OF FRONT PAGE NEWS COVERAGE APPEARED IN 'MALAYALA MANORAMA' DATED 14.11.98 REGARDING MODALITY OF O.P.NO.25822/02 3 REIMBURSEMENT AS DIRECTED BY THIS COURT WHILE CONSIDERING CONNECTED CASES OF 120 NUMBERS – OP.NO.7822/98, dated.13.11.98. EXT.P12: THE EXTRACT OF PAGE NO.9 OF THE INDUSTRIAL PERMANENT REGISTRATION CERTIFICATE TO SHOW THAT THE PETITIONER'S INDUSTEIAL UNIT IS HAVING A STATUS AS A 'TINY ENTERPRISE' AS CERTIFIED BY DISTRICT INDUSTRIES CENTRE. EXT.P13: TRUE EXTRACT OF LINE 14 OF PAGE 236, THE DECRETAL PORTION OF JUDGMENT IN CRL.APPEAL NO.306/96 (R.BALAKRISHNA PILLA V. STATE OF KERALA) TO DESCRIBE THE PRESENT DAY AFFAIRS OF THE KERALA STATE ELECTRICITY BOARD.) EXT.P13(a): TRUE COPY OF PAGE 679 OF ENCYCLOPEDIA AMERICANA, 1979 EDITION TO EXPLAIN THE AUTHENTIC MEANING OF THE GREEK PHRASEOLOGY “AUGEAN STABLES' TO DENOTE A CONDITIONS OR PLACE MARKED BY GREAT ACCUMULATION OF FILTH OR CORRUPTION. EXT.P14: MODE OF CALCULATION TO BE MADE FOR REIMBURSEMENT OF EXCESS AMOUNT LEVIED BY THE ELECTRICITY BOARD. EXT.P14(a): TRUE COPY OF THE DECRETAL PORTION AND PAGE NO.25 OF THIS COURT'S JUDGMENT IN O.P.No.7822/98: EXT.P15: CERTIFICATE NO.GB/3/97-98/4450 DATED 17.10.97 ISSUED BY THE THIRD RESPONDENT AS THE PRECURSOR TO THE ELIGIBILITY CERTIFICATE ISSUED BY THE INDUSTRIAL DEPARTMENT. EXT.P16: NEWS PAPER NOTIFICATION DATED 19.9.97 REGARDING THE APPLICATION TO BE SUBMITTED FOR PRE-'92 TARIFF CONCESSION AND ITS CUT-OFF-DATE. EXT.P17: THE SPEAKING ORDER ISSUED BY THE THIRD RESPONDENT AS PER DIRECTION ISSUED BY THIS COURT ON 17.12.2002. EXT.P18: TRUE COPY OF THE BOARD ORDER NO.2261/2000 DATED 6.9.2000 REGARDING THE GENERAL EXTENSION OF 167 DAYS IN PRE-1992 TARIFF TO COVER THE POWER-CUT- PERIOD DURING 1996-97. EXT.P19: PETITIONER'S SUBMISSION DATED 28.9.2001 TO THE 3RD RESPONDENT REGARDING HIS REFUSAL TO GRANT GENERAL EXTENSION OF PRE-92 TARIFF. EXT.P20: LETTER NO.GB/7/40/99-2K/173 DATED 29.6.99 REFUSING PRE-92 TARIFF FOR THE YEAR '96, '97 AND 1998 REFERRING TO AN OBSOLTE BOARD ORDER DATED 8.12.1998. EXT.P21: TRUE COPY OF ABSTRACT OF BOARD ORDER NO.3730/98 DATED 8.12.98 REGARDING EXCESS AMOUNT COLLECTED AND ELIGIBILITY CERTIFICATE'S ISSUANCE. O.P.NO.25822/02 4 EXT.P22: TRUE COPY OF THE CASH RECEIPT NO.42 OF BOOK NO.216 DATED 6.2.06 WITH CONSUMER NO.10103 TOWARDS ADVANCE CASH DEPOSIT (C/D) FOR AN AMOUNT OF RS.17,400/-. RESPONDENTS' EXTS: ANNEXURE(a): TRUE COPY OF THE REQUEST DATED 28.9.2001. ANNEXURE (b): TRUE COPY OF THE LETTER DATED 6.10.2001. ANNEXURE ©: TRUE COPY OF THE LETTER DATED 9.10.01. TRUE COPY O.P.NO.25822/02 5 ORDER ON C.M.P.NO.43822/02 IN O.P.No.25822/02 //DISMISSED// 01.07.08 SD/- K.BALAKRISHNAN NAIR, JUDGE. SD/- M.C.HARI RANI, JUDGE. K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- O.P.No.25822 OF 2002-Y ----------------------------------------------------- DATED THIS THE 1st DAY OF JULY, 2008 J U D G M E N T Balakrishnan Nair, J. The petitioner was an entrepreneur who was persuaded to start an industrial unit in Kerala by the attractive offer made by the State as per Exhibit P4 order. The said order, inter alia, held out a promise that all new industrial units which start commercial production between 1.1.1992 and 31.12.1996 will be allowed to consume electrical energy for five years at the tariff prevailing before 1.1.1992. The petitioner's industrial unit started commercial production on 10.3.1996. The respondents do not dispute the said fact. The benefit of pre-92 tariff was extended to him also. But the same was discontinued from April, 1996, submits the petitioner. The reason for the discontinuance was the non-production of the eligibility certificate from the General Manager, District Industries Centre. Exhibit P4 stipulates that eligibility for the concessional tariff should be certified in certain cases by the KSIDC/KFC and in other cases by the General Manager, District Industries Centre. In O.P.No.25822/02-Y -2- the case of the petitioner, Exhibit P1 is the eligibility certificate issued by the General Manager, District Industries Centre on 3.1.1998. In the meantime, the Board issued an order fixing a cut off date for production of eligibility certificate as 15.10.1997. The said order was challenged before this Court in a batch of writ petitions and this Court quashed that order by the judgment in O.P.No.7822/1998 and connected cases dated 13.11.1998. It was held that the eligibility certificate can be produced at any time during the eligibility period. If the production of the certificate is after some time from the commencement of commercial production, the difference between the energy charges paid as per the ruling tariff by the unit concerned and payable as per the pre-92 tariff shall be refunded to the consumer concerned. Since the benefit of Exhibit P4 G.O., as interpreted by this Court was not given to him, the petitioner approached the Consumer Disputes Redressal Forum which passed Exhibit P6 order, directing the competent authority of the KSE Board to extend the benefit of Exhibit P4 in the light of the judgment of this Court mentioned above. Pursuant to the said decision, the petitioner filed Exhibit P7 representation before the KSEB. Thereafter, the Executive Engineer of O.P.No.25822/02-Y -3- the KSEB issued Exhibit P8 communication to the Assistant Executive Engineer directing to refund the excess amount, if any, collected from him. The petitioner submits, he was regularly paying the electricity charges and he was never a defaulter. But, because of the delay in extending the benefit of pre-92 tariff to him, he could not continue with the production by paying the ruling tariff and therefore, he has to close down the unit. 2. In view of the above factual background, the petitioner prayed that the refund of excess amount collected from April, 1996 to the date of Exhibit P1 eligibility certificate will not redress his grievance. He must be allowed to consume an equal amount of energy which he would have consumed, had he been granted the concession in time. Mainly raising this relief, this Writ Petition is filed. This point alone was pressed before us at the time of hearing. 3. The KSEB has filed a counter affidavit resisting the prayers in the Writ Petition. According to the Board, there was delay from the part of the petitioner to produce the eligibility certificate. On production of the eligibility certificate, he was given the benefit for the period thereafter. In view of the judgment of this Court mentioned above, he has been paid the excess amount collected from him for the O.P.No.25822/02-Y -4- period between the date of commencement of commercial production and the date of issuance of the eligibility certificate, Exhibit P1. It is also submitted that the claim of the petitioner to allow him to consume the energy which he would have consumed, had the concession been granted in time cannot be allowed as per the rules. 4. The petitioner in answer, would submit that the officials of the KSEB alone were responsible for the delay in producing the eligibility certificate. For getting the eligibility certificate from the General Manager, District Industries Centre, the petitioner has to produce the certificate from the concerned Assistant Executive Engineer. In this case, the said certificate is Exhibit P15. It was issued only on 17.10.1997, one day after the cut off date. The petitioner alleges, the KSEB has instructed its officials to delay the issuance of the certificates so that most of the consumers will not be able to procure the eligibility certificate before the cut off date. In view of the above mala fide conduct of the KSEB, the petitioner prays for granting the relief mentioned above. 5. Going by the facts of the case, it would appear that the petitioner is entitled to get only the refund of the amount collected O.P.No.25822/02-Y -5- relating to the period before he was able to produce the eligibility certificate from the General Manager, District Industries Centre. This Court in the aforementioned judgment at paragraph 28 has only directed to pay refund of the excess amount collected. The relevant portion of the judgment reads as follows: “ 28. In the above mentioned circumstances, I am inclined to give following directions to the respondents. (1) xxxxxxxx xxxxxxxx (2) xxxxxxxx xxxxxxxx (3) Industrial units which have already paid the ruling tariff, even though they are entitled to get the benefit of notification dated 6.2.1992 and 27.3.1992 would be entitled to get reimbursement of the difference of the amount paid from the State Government by way of subsidy. This will be paid within a period of three months from today.” In this case, the excess amount collected has been repaid to the O.P.No.25822/02-Y -6- petitioner, as per the aforementioned direction of the Single Bench of this Court. He was also allowed to consume electricity at concessional tariff from the date of production of eligibility certificate, till the balance period of the five years computed from the date of commencement of commercial production. But the petitioner points out, he has suffered irreparable injury because of the delay in the issuance of the eligibility certificate and the delay in extending the benefit to him. The payment of the difference in amount will not in any way compensate him. Had the concession been granted from the date of commercial production, continuously for a period of five years, he would not have to close down his industrial unit and the same would have prospered. So, the petitioner prays, he should be allowed to consume equivalent quantum of energy which he would have consumed between the date of commercial production and the date of issuance of Exhibit P1, had he functioned normally. 6. But, in this Writ Petition filed under Article 226 of the Constitution of India, we cannot go into the damages suffered by the petitioner owing to the commissions and omissions of various officials and order to compensate him. These are all matters for which O.P.No.25822/02-Y -7- evidence is to be taken. As per the rules then in force and as per the direction of this Court in the aforementioned judgment, whatever that could be given to the petitioner has already been granted. Therefore, the prayer of the petitioner to allow him to use additional units of energy cannot be granted. In the result, the Writ Petition fails and it is dismissed. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn