IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 WP(C).No. 23732 of 2007(A) ------------------------- PETITIONER : ------------------ SATHYAPRAKASH, S/O. RAMAN, AGED 41 YEARS, RESIDING AT "KAVITHA", THANDAVAYAL, KOYILANDY P.O. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): ----------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHIBHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, KOYILANDY. 3. ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, KOYILANDY. 4. SUB ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, KOYILANDY. 5. DISTRICT COLLECTOR, KOZHIKODE. 6. TAHSILDAR (R.R.), VADAKARA. 7. VILLAGE OFFICER, KEEZHARIYOR, KOYILANDY. R1 TO R4 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B R5 TO R7 BY GOVT. PLEADER SRI. P. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ...2/- WP(C).No. 23732 of 2007(A) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE NOTICE DATED 26.06.02 OF THE 2ND RESPONDENT. EXT.P2 : COPY OF THE LAWYER NOTICE DATED 06-07-02 ON BEHALF OF THE PETITIONER. EXT.P3 : COPY OF THE NOTICE DATED 04-12-02 OF THE 2ND RESPONDENT. EXT.P4 : COPY OF THE NOTICE DATED 05-12-02 OF THE 3RD RESPONDENT. EXT.P5 : COPY OF THE REPLY SUBMITTED BY THE PETITIONER. EXT.P6 : COPY OF THE ORDER DATED 24-03-2003 OF THE 4TH RESPONDENT. EXT.P7 : COPY OF THE APPEAL AGAINST EXT.P6. EXT.P8 : COPY OF THE MODEL FORM OF THE MINIMUM GUARANTEE AGREEMENT. EXT.P9 : COPY OF THE R.R. NOTICES U/Ss.7 AND 34 OF THE R.R. ACT. EXT.P10 : COPY OF THE JUDGMENT DATED 26.09.2003 OF THIS HON'BLE COURT IN WP(C) NO. 29493/03. EXT.P11 : COPY OF THE REPRESENTATION DATED 02-07-07 OF THE PETITIONER TO THE 3RD RESPONDENT. EXT.P12 : COPY OF THE ORDER DATED 11-03-04 OF THE 3RD RESPONDENT DT. EXT.P13 : COPY OF THE COVERING LETTER GIVEN TO THE PETITIONER BY THE 3RD RESPONDENT WHILE ISSUING EXT.P12 DT. 18/7/07. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn S.SIRI JAGAN, J. ----------------------------------------- W.P.(C).No.23732 OF 2007 ---------------------------------------- Dated this the 14th day of October, 2010. JUDGMENT The petitioner started a Small Scale Industrial Unit. He applied for an electricity connection to that unit. He executed a minimum guarantee agreement for such connection in November, 1997. Petitioner closed the unit in 1999. According to the petitioner by the time the petitioner closed the unit, the line had become remunerative since more than 50 connections were given from the same transformer and, therefore, in view of Clause 4 of the minimum guarantee agreement, the petitioner is not liable to pay the minimum guarantee amount, but only the actual energy charges. Therefore the petitioner did not pay the minimum guarantee amount after closure of the unit in 1999. By Exts.P3 and P4, the petitioner was directed to pay the minimum guarantee amount amounting to Rs.2,98,470/- for periods subsequent to 1999. The petitioner represented against the same. In the Adalat conducted by first respondent, there was an agreement that the 4th respondent would re-examine the matter. But the 4th respondent without considering whether the system W.P.(C).No.23732 OF 2007 2 had become self-remunerative as contended by the petitioner, passed Ext.P6 order, rejecting the contentions of the petitioner. The petitioner approached this Court by filing W.P.(C) No.29493 of 2003, in which By Ext.P10 judgment, the second respondent was directed to consider the appeal filed by the petitioner. That appeal was rejected by Ext.P12 order. The contention of the petitioner is that, in view of Clause 4 of Ext.P8 minimum guarantee agreement, which lays down that the petitioner need pay the minimum guarantee amount only if till the system becomes self-remunerative. He submits that he has pointed out not less than 50 connection from the same transformer installed for the purpose of giving connection to the petitioner with consumer number and by-monthly amounts paid by those consumers. According to the petitioner the same would show that the line had become self remunerative and, therefore, the petitioner is liable to pay any minimum guarantee amount after 1999. 2. The contention of the respondents as revealed in the counter affidavit is that the system had not become self- remunerative as contended by the petitioner and, therefore, he is liable to pay the minimum guarantee amount even after the W.P.(C).No.23732 OF 2007 3 closure of the unit, which legal position is settled by the Division Bench decision of this Court in Rajesh v. Kerala State Electricity Board, (2006 (1) KLT686). 3.I have considered the rival contentions in detail. The respondent had not chosen to controvert the specific statement of petitioner that more than 50 electricity connections have been given from the same transformer which catered to the needs of the petitioner's unit. As revealed in Ext.P6, the contention of the respondent is that although those connections were so given from that transformer, those connections could also have been given from another transformer nearby. In Ext.P12 order there is no consideration of any of the contentions of the petitioner. The only finding therein is that the office had conducted a detailed enquiry in the matter and he find no reason to interfere in the decision of Sub Engineer in charge that the appellant is not eligible for any concession in payment of minimum guarantee charges. In paragraph 3 of the counter affidavit by the respondents they have specifically stated that it is because the petitioner's need could not be met from the other transformer that a new transformer had to be installed for giving connection to the petitioner. That statement, to a great extent disproves the W.P.(C).No.23732 OF 2007 4 contention in Ext.P6. Even otherwise, what is to be considered is not whether the respondents could have given the additional connections from some other transformer, but whether after giving other connections from this transformer the system had become self-remunerative. Therefore simply because the respondents could have given those connections from another transformer, the petitioner does not become disentitled to the benefits of Clause 4 of Ext.P8 agreement if in fact after giving those connections from the transformer catering to the needs of the petitioner, the system had in fact become self-remunerative. There is no categorical averment in the counter affidavit that despite those additional connections the system had not become self-remunerative. As I have already stated, the petitioner had given details of the consumer numbers and amounts paid by them. The petitioner's contention is that those are not exhaustive and other connections were also given from very same transformer. That being so, I am unable to countenance the contention of the respondents that the system had not become self-remunerative. 4. But still there is no material before me to decide as to from which date the system became self-remunerative, for which W.P.(C).No.23732 OF 2007 5 the dates of giving the connections to various consumers also has to be ascertained, for which there is no material before me. Even then since the issue is hanging fire for more than 10 years, I am inclined to give the dispute a quietus instead of remanding the matter for fresh consideration. 5. Pursuant to the interim order, the petitioners has remitted Rs.50,000/- out of the amounts demanded. I am inclined to direct the respondents to treat the same as full and final settlement of all amounts due to the respondents from the petitioner towards the minimum guarantee amount as per Ext.P8 minimum guarantee agreement. It is declared that petitioner do not have to pay any further amount in respect thereof. The writ petition is disposed of as above. S.SIRI JAGAN, JUDGE. mns