IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 OP.No. 14538 of 2003(E) ----------------------- PETITIONER(S): ------------------ M/S.CHAYA INDUSTRIES LTD., NEW INDUSTRIAL DEVELOPMENT AREA, KANJIKODE, PALAKKAD, REPRESENTED BY ITS GENERAL MANAGER BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): ------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER (COMMERCIAL) KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. SPECIAL OFFICER (REVENUE) KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, POWER DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. ADV. SRI.P.SANTHALINGAM, SC, KSEB FOR R1TO3 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO. 14538/03 ORDER IN CMP NO.24381/03 IN OP NO.14538/2003 DISMISSED 12/06/2009 SD/-ANTONY DOMINIC, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF G.O(MS) 4/92/PD DT 6.2.92. EXT.P2: TRUE COPY OF THE B.O. DT 27.3.92. EXT.P3: TRUE COPY OF THE G.O. DATED 26.10.99. EXT.P4: TRUE COPY OF THE BOARD ORDER DT 25.2.2002. EXT.P5: TRUE COPY OF THE REPRESENTATION DT 29.2.2002 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P6: TRUE COPY OF THE ORDER DT 17.12.2002 PASSED BY THE 3RD RESPONDENT. EXT.P7: TRUE COPY OF the ORDER DT 11.4.2003 PASSED BY THE 2ND RESPONDENT. EXT.P8: TRUE COPY OF THE NOTICE DT 18.1.97 FIXING THE QUOTA AS 62,500 WHEN POWER CUT WAS 50%. EXT.P9: TRUE COPY OF THE NOTICE DT 14.7.97 FIXING THE QUOTA OF THE PETITIEORN WHEN POWER CUT WAS 70%. EXT.P10: TRUE COPY OF THE LETTER DT 9.9.97 FIXING THE QUOTA OF THE PETITIONER. EXT.P11: TRUE COPY OF THE LETTER DT 25.4.2003 ISSUED BY THE SPECIAL OFFICER. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ O.P. NO. 14538 OF 2003 (E) ===================== Dated this the 12th day of June, 2009 J U D G M E N T Petitioner is an HT consumer. Their commercial production commenced on 27/12/96. They claimed the benefit of Pre 92 concessional tariff on the basis of the Government orders. That was not accepted. Finally, the petitioner approached this Court and filed OP 1846/2000. This court by judgment dated 7/4/2000, upheld the claim of the petitioner and on that basis, petitioner was given the benefit for five years till 26/12/2001. 2. One of the issues raised in this original petition is that during the aforesaid period, when they were enjoying the Pre 92 concessional tariff, power cut was imposed by the Board at varying rates, as a result of which, the period allowed to the consumers like the petitioner were substantially reduced. Many consumers approached the Government praying for proportionate extension of the period of concessional tariff. The Government finally issued Ext.P3 dated 26/10/1999, which stated that the consumers who suffered power cut at rates more than 50% will get proportionate extension for period. OP No.14538/2003 :2 : 3. Petitioner submits that during the period 96-97, power cut at more than 50% was in force for 352 days. They applied for the benefit of Ext.P3 and the Board extended concessional period only by 167 days. Petitioner submits that though they were entitled to extension by 352 days, what was allowed by the Board was less by 185 days. They filed an appeal to the 2nd respondent and the 2nd respondent rejected their claim by Ext.P7 order. In this context, the prayer sought by the petitioner is to quash Ext.P7 appellate order declining their aforesaid claim. 4. The reasoning of the 2nd respondent in Ext.P7 is as follows. The quota for the appellant company was fixed based on the Government order dt 15.2.1996 by which new industries were given power connection on condition that the quota will be 50% of the base quota for industries started functioning after 1.1.1996. This was continued throughout the period of power cut irrespective of the reduction in power cut from time to time. No discrimination was done in fixing the quota and all industries,which started production on or after 1.1.1996 were fixed a uniform quota during the period of power cut. The company was already granted the eligible extension of concessional tariff period (167 days) and no orders are existing to further extend the period. 5. As can be seen from the above, the benefit claimed by the petitioner is declined relying on GO(Rt) No.25/96/PD dated OP No.14538/2003 :3 : 15th February, 1996. A reading of this Government order shows that new industries which started functioning after 1/1/96 were given power connection on condition that their quota will be only 50% of the base quota. Admittedly, petitioner is a new industry, which started functioning after 1/1/96 and the Government order applies to them. The aforesaid provision in the Government order shows that power supply was limited to consumers such as the petitioner, irrespective of the rates at which power cut was levied and the condition was that their quota will be 50% of the base quota. If that be so, the fact that the petitioner enjoyed only 50% of the base quota was not dependent upon the power cut that was imposed by the Board on a periodical basis, but was on account of the restrictions imposed by the Government order dated 15/2/1996. If so, the claim of the petitioner do not come within Ext.P3 Government Order dated 26/10/99, by which, proportionate extension of the period of Pre 92 tariff was extended to consumers. Consequently, the claim of the petitioner for extension of Pre 92 tariff for a further period of 185 days cannot be allowed. 6. The other prayer sought in this original petition is that OP No.14538/2003 :4 : the petitioners claim for Pre 92 concessional tariff was accepted by this Court in the judgment in OP No.1846/2000 rendered on 7/4/2000 and that the benefit was extended thereafter. It is stated that till then, from 27/12/96 onwards the petitioner was paying the energy charges at ruling rates and that they have made an excess payment of Rs.55,27,781/-. Petitioner submits that once their claim for Pre 92 tariff is upheld, they are entitled to have the aforesaid amount adjusted towards their future bills. On the other hand, the respondents would say that they have already adjusted such amounts. 7. Having considered the submission made by both sides, I am inclined to think that the petitioner is justified in his prayer. Once the petitioner's claim for Pre 92 tariff has been allowed, necessarily, if any excess amount has been realised from the petitioner during the period in question, such amount should be either refunded or adjusted towards their dues. Therefore, if any excess amount has been realised and that the same has not been adjusted so far, the Board shall quantify the excess amount so realised from the petitioner during the period when they were eligible for the concessional Pre 92 tariff and such amount shall OP No.14538/2003 :5 : be adjusted towards their future bills. 8. Then the petitioner claims the benefit of Ext.P4. Ext.P4 is a Board order dated 25/2/2002, which says that a consumer who remits current charges in the manner provided in advance will be given 10% rebate on demand charges and energy charges. According to the petitioner, the excess amount realised at ruling rates during the period during which they were eligible for concessional tariff should be treated as advance as provided in Ext.P4 and on that basis they should get rebate as provided therein. Having regard to the fact that what the petitioner paid was energy charges and was not as advance as provided in Ext.P4, I am not inclined to accept this claim made by the petitioner. Original petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp