IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 WP(C).No. 33887 of 2008(H) ----------------------------------------------- PETITIONER(S): ---------------------- M/S.PREMIER MARINE ENTERPRISES, ERAMALLOOR, ALAPPUZHA DISTRICT, PIN 688 537 REPRESENTED BY ITS PARTNER, MR. AHMED AZHAR. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SMT.SHEENA SAMUEL SMT.ROSHAN THOMAS RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHYUDHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, CHERTHALA. 3. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, AROOR, ALAPPUZHA DISTRICT. 4. THE KERALA STATE ELECTRICITY REGULATORY COMMISSION, VELLAYAMBALAM, THIRUVANANTHAPURAM REPRESENTED BY ITS CHAIRMAN. ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1-3 SRI.S.SANAL KUMAR FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2008, ALONG WITH W.P.(C).NOS.34698/08E & 34720/08G, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NOS.33887/08 H, 34698/08 E & 34720/08 G -------------------------------------- Dated this the 15th December, 2008 JUDGMENT Since common questions are raised in all these Writ Petitions, they are disposed of by a common Judgment. Petitioners are LT IV consumers. All of them are manufacturing ice. In W.P.(C).No.34698/08, some of the petitioners are consumers who had started manufacturing earlier than in 2008. As far as the other petitioners in the said Writ Petition and also the petitioners in the other two Writ Petitions are concerned, they have started manufacturing the product in the year 2008. They are new consumers. The respondent, Kerala State Electricity Regulatory Commission (hereinafter called “the Commission”) has taken a decision purportedly on the basis of the application filed by the Electricity Board in the light of the power scenario prevailing in the State. Petitioners are aggrieved by the same. In regard to new consumers, the WPC.33887, 34698&34720/08 2 Commission has fixed the base average on the basis that the new Units will be entitled to consume at the normal rates in a total quantity arrived at as fifty units per KWA. As far as the consumers who had started production earlier, the Commission has decided to take into consideration the average consumption during the period from 1.4.2007 to 31.3.2008. 2. I heard the learned counsel appearing for the petitioners, the Commission and the Electricity Board. 3. The contentions taken by the learned counsel for the petitioners are briefly as follows: It is firstly contended by them that the impugned decision in so far as it affects them is liable to be interfered with on the ground that it is a decision taken in breach of the elementary principles of natural justice. It is their case that even in the petition filed by the Electricity Board, the proposal was to introduce a power cut. There was no proposal as has been accepted in regard to the new consumers by the Commission. The decision is dubbed as arbitrary. The figures marshalled WPC.33887, 34698&34720/08 3 before me as seen from the bills indicate much higher consumption for the short period they have been in business, and it is contended that what is vouch-safed for them at the normal rate is a very meagre sum. It is contended that the units will not be viable at the very high rate at which they would have to pay following the decision of the Commission. It is also pointed out that in the year 1996 - 1997, when there was a power crisis, the Government decided to exempt the Units which did not exceed 100 KVA from the power cut from 30.6.1996. Reliance is also placed on Ext.P6 to show that in the year 1997, the Government has decided to fix the quota at 500 units per KWA for ice plants. Therefore, it is pointed out that even if there was a need to impose restrictions, from the precedents in the past, the Commission could not have arrived at the position, which was arrived at. Learned counsel for the petitioners also point out that the burden should be shared among the consumers. 4. Per contra, Shri S. Sanal Kumar, learned counsel WPC.33887, 34698&34720/08 4 appearing for the Commission (in W.P.(C). No.33887/08) would point out the extraordinary situation prevailing in the State. He would further contend that one cannot compare an established unit with a new unit. He would also rely on the practice which obtained in 1996. For units with above 100 KVA, the Government had decided to fix the quota at 50 units per KVA. He would further submit that the Commission has inherent power under regulation 69, even if the Board had not specifically requested for relief on the lines of the decision taken by the Commission. Learned counsel appearing on behalf of the Electricity Board pointed out Regulation 41 to contend that even if there is a defect, it cannot be interfered with. He also submit that it cannot be contended that the petitioners were taken completely by surprise. Petitioners should be treated as knowing when such a petition is filed that there is a possibility of an order being passed which may affect their interests, he contends. He would also point out a dismal picture regarding power position and urge this Court to desist from interfering WPC.33887, 34698&34720/08 5 with the decision of an expert body, treating the proceedings under Article 226 as appellate proceedings. Learned counsel for the Commission pointed out that there is power under Regulation 67 to approach the Commission. 5. After having heard the learned counsel for the parties, in the circumstances of the case, I feel that the petitioners should be relegated to approach the Commission by invoking the power under Regulation 67. In such circumstances, the Writ Petition is disposed of as follows: If the petitioners file applications invoking the power under Regulation 67 within a period of one week from today, the Commission will take up the matter on 1.1.2009 at 11 AM. It is open to the Electricity Board to file such objections as they may be advised to before the Commission on or before 1.1.2009. It is not necessary to issue notice to the parties. In other words, the petitioners or their representatives as also the Electricity Board or its representative shall be present before the Commission at 11 AM on 1.1.2009. The Commission shall WPC.33887, 34698&34720/08 6 proceed to consider the applications, hear the parties and take a decision on the same in accordance with law, at the earliest and, at any rate, within two weeks from 1.1.2009. I make it clear that I have not pronounced on the merits of the contentions of either party and I leave them open. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge