IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 28560 of 2008(Y) -------------------------- PETITIONER(S): --------------- M/S. SOLVAR WIRE (P) LTD., (FORMERLY M/S SOUTHERN ELECTROMAG (P) LTD., II/538,CHEMICAL INDUSTRIAL ESTATE, AROOR, ALLEPPEY DIST. REP. BY ITS MANAGING DIRECTOR, K.JOSE THOMAS. BY ADV. SRI.J.JULIAN XAVIER SMT.M.S.SOUJATH RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. SPECIAL OFFICER (REVENUE), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, ERNAKULAM. 4. DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, ALAPPUZHA. 5. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, INDUSTRIES DEPARTMENT, THIRUVANANTHAPURAM. 6. THE KERALA STATE ELECTRICITY REGULATORY COMMISSION, THIRUVANANTHAPURAM. ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1-3 SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 28560 OF 2008 Y ```````````````````````````````````````````````````` Dated this the 21st day of October, 2008 J U D G M E N T Prayers in the writ petition are as follows: (i) call for the records connected with the case leading to Exts.P5, P9 and P9 (a) and quash the same by issuing a writ of certiorari (ii) declare that power restriction is not applicable in the case of the petitioner in the light of Ext.P2 order and Ext.P3 rehabilitation package introduced by the 5th respondent (iii) direct the respondents 1 to 4 to refix the quota of the petitioner in the light of Ext.P8 Board order if power restriction is inevitable. 2. Ext.P5 is a notice issued to the petitioner fixing the monthly quota as 810 units. This is on the basis of the interim order passed by the Regulatory Commission. Ext.P9 is a bill issued in terms thereof. Ext.P9(a) is the calculation statement WPC.28560/08 : 2 : showing the amount of consumption for which the petitioner is liable to pay in excess under the interim order of the Commission and also Ext.P14 dated 24.7.2008. 3. According to the petitioner, the petitioner is a sick unit and it was forced to stop the production with effect from 15.10.2005. Thereafter, it is only necessary for me to refer the fact that the connection was restored on 3.3.2008. The consumption for the month of March 2008 is 1120. Apparently, Ext.P5 notice is issued taking into consideration the consumption for the month of March 2008. According to the petitioner, the petitioner is entitled to be treated as a new unit within the meaning of clause 2(c) of Ext.P14 order dated 24.7.2008. The petitioner represented the matter before the 3rd respondent vide Ext.P7. In Ext.P7, it is contended that the 3rd respondent took the decision that the petitioner may be treated as a new consumer and the quota may be fixed accordingly if the unit was under lock out during the previous year. According to the petitioner, it is while so, Ext.P9 bill WPC.28560/08 : 3 : came to be issued and Ext.P9(a) calculation statement is issued. 4. A counter affidavit is filed by the Assistant Executive Engineer apparently on behalf of the respondents. It is, inter alia, stated in the counter affidavit as follows. The supply was under disconnection till 2/08 and consumption for March 2008 was taken as base average. It is also stated that the petitioner is considered as a new consumer for quota fixation because as per Ext.P14, new consumer is one who started functioning on or after 1.4.2008, for which the base average is 250 units/KVA contract demand. Of course, they have set up a case that Ext.P7 was a confidential document produced. It is stated that the instructions to the 4th respondent (apparently in Ext.P7) issued by the 3rd respondent was under the impression that the firm had consumed only a meager unit after reopening the plant. It is stated that sufficient details are available and quota of 12668 units was proposed and accordingly Ext.R1(a) is issued. WPC.28560/08 : 4 : 5. Petitioner has filed a reply affidavit. Therein the petitioner has produced Ext.P13 interim order of the Commission and Ext.P14 order dated 24.7.2008. The petitioner states that there is no dispute that the production of the petitioner's unit was started only during 4/2008 and it is stated that there is no rationale in the monthly quota fixed by the 2nd respondent in the case of the petitioner. A further affidavit is filed by the 3rd respondent herself. Therein, it is, inter alia, stated that the Board has issued Ext.R1(b) through which the Board has authorised the Agreement Authority to look into individual cases and to fix quotas. It is stated that if the petitioner has any grievance about the fixation of quota, the same could be raised before the Agreement Authority and this court need not go into the facts. The 1st respondent also relies on Ext.R1(c) judgment in another writ petition which is stated to be issued in similar circumstances. That apart, the 3rd respondent has also stated that the averments in paragraph 6 of the counter affidavit should be read as follows: WPC.28560/08 : 5 : “ In paragraph 6 of the counter affidavit what is meant was that “This petitioner is not considered as a new consumer for quota fixation because as per B.O. dated 24.7.2008, new consumer is those who started functioning on or after 1.4.2008. ” The word “not” was not included due to a typographical error and from the meaning conveyed by the whole paragraph, no other meaning was intended or could be assumed. “ 6. I heard learned counsel for the petitioner Sri.Julian Xavier and learned senior standing counsel Sri.C.K.Karunakaran. Learned counsel for petitioner reiterates the stand that the petitioner is a sick unit and the petitioner is to be treated as a new unit within the meaning of clause 2(c) of Ext.P14 and quota may be fixed accordingly. He would reiterate the fact that the production commenced only in April 2008 even going by Ext.R1(a). He would further advance his grievance that if the petitioner is relegated back to the 4th respondent, he may not get justice there. Learned WPC.28560/08 : 6 : standing counsel would submit that the petitioner will not fall within the ambit of clause 2(c) of Ext.P14 as the connection was not given to the petitioner after 31.3.2008. The petitioner was having a connection much earlier. It came to be disconnected. The connection was restored on 3.3.2008 by no stretch of imagination the petitioner can claim the benefit under clause 2(c). He submits that the consumption pattern of the petitioner is available for the previous year and clause 2 (a) has set the fixation. Learned standing counsel further submits that if the petitioner still has a grievance, he can certainly approach the 4th respondent in terms of Ext.R1(b) and seek relief. 7. The first question is to be considered is whether the petitioner will fall under clause 2(c) of Ext.P14. It reads as follows: “ Clause 2(c) - In respect of industries provided with connection on or after 1.4.2008, whose average cannot be worked out; the consumption as detailed below shall be taken as the base average consumption to work out WPC.28560/08 : 7 : the monthly quota of energy. (i) EHT Consumer - 400 Unit/KVA - Contact Demand per month (ii) HT Consumer - 250 Units/KVA - Contact Demand per month.” 8. I am not impressed by the contention of the petitioner that the petitioner will fall within the ambit of clause 2(c). Clause 2(c) will apply only if a connection is granted after 1.4.2008. Admittedly, the petitioner was an existing consumer. The petitioner was given the connection prior to 1.4.2008. The petitioner's connection came to be dismantled and reconnected on 3.3.2008. I am of the view that in this case it cannot be treated as a connection provided after 1.4.2008. If that be so, I would not lay any store by the noting in Ext.P7 by the 3rd respondent that the petitioner may be treated as a new consumer. It is certainly not open to the 3rd respondent to act against the terms of the Board order. When the matter comes up before this court under Article 226 of the Constitution, it should not carry weight, at any rate, when the terms of Ext.P14 are unambiguously clear. WPC.28560/08 : 8 : Therefore, the case based on noting in Ext.P7 and clause 2 (c) is only to be rejected. Clause 1(a) on which reliance is placed by the learned standing counsel, in my view, does not empower the authority to take the consumption for the period prior to 1.4.2007 also as contended by him. Therefore, it may be a case where the petitioner may not strictly fall within any of the clauses. It is in such circumstances, one has to consider the effect of Ext.R1(b). Ext.R1(b) is dated 7.8.2008. Though learned counsel for the petitioner would contend that the petitioner may not strictly fall within the four categories specifically enumerated, the respondents contend that the four categories mentioned are only illustrations as the said effect is inevitable by use of the word “like”. At any rate, the learned standing counsel submits that the case of the petitioner can also be directed to be considered by the 4th respondent. In the light of this, I feel that the only relief that can be given to the petitioner is to relegate the petitioner to approach the 4th respondent in terms of Ext.R1(b). The WPC.28560/08 : 9 : statement of the learned standing counsel that the quota of the petitioner can be fixed as 12668 is recorded. Equally, it is recorded that the petitioner can approach the 4th respondent in terms of Ext.R1(b), if he is aggrieved by the said fixation and seek the fixation of another quota. 9. Recording the above submissions, writ petition is disposed of directing that if the petitioner represents the matter before the 4th respondent, within one week from today, in terms of Ext.R1(b) order, the 4th respondent will take a decision in the matter in accordance with law, within one month from the date of filing of the representation. I only hope that he will act in the matter which will allay the apprehensions of the petitioner that he may not get justice from the 4th respondent. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE