IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 WP(C).No. 4963 of 2008(N) ----------------------------------- PETITIONER: ----------------- KANAN DEVAN HILLS PLANTATIONS COMPANY PVT.LTD., KDHP HOUSE, MUNNAR 685 612 REPRESENTED BY ITS EXECUTIVE DIRECTOR, MR.P.M.SRIKRISHNAN. BY ADV. SRI.JOSEPH KODIANTHARA SRI.TERRY V.JAMES RESPONDENTS: ----------------------- 1. KERALA STATE ELECTRICITY REGULATORY COMMISSION, MR.C.V.RAMAN PILLAI ROAD, VELLAYAMBALAM, THIRUVANANTHAPURAM 695 010. 2. KERALA STATE ELECTRICITY BOARD, VYDYUTHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 3. THE SPECIAL OFFICER (REVENUE) KERALA STATE ELECTRICITY BOARD, VYDYUTHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B R1BY ADV. SRI.T.K.KUNHABDULLA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Thottathil B. Radhakrishnan, J. ================================== W.P.(C)No.4963 of 2008 ================================== Dated this the 12th day of March, 2008. JUDGMENT “CR” Ext.P6 is a notification issued by the Kerala State Electricity Regulatory Commission in exercise of authority under Section 62(1)(a), Clause (d) of the first proviso under Section 62(1)(a) and Section 86(1)(a) of the Electricity Act, 2003, hereinafter referred to as the “Act”. Section 64 provides that an application for determination of tariff under Section 62 shall be made by a generating company in the manner determined by the regulations. Every application is required to be accompanied by its abridged form in the manner specified by the Commission. Ext.P6 is a notification issued by the Commission to ensure the object sought to be achieved by Section 64(2). In Ext.P6 at Sl.No.4, a tariff category is prescribed identifying licensees with self consumption more WPC4963/2008 -:2:- than 50% of the total purchase from the KSEB as a category. Licensees with self consumption less than 50% is not dealt with in Ext.P6 notification. Section 64(3) requires that the Commission shall deal with the application for determination of tariff only after considering all suggestions and objections received from the public. In doing so, the Commission has the power to issue a tariff order accepting the application with such modifications or such conditions as may be specified in that order. 2. Petitioner, being a distributing licensee, who is also a consumer stated to be with self consumption less than 50%, which fact is admitted by KSEB, did not place any suggestion or objection to Ext.P6 because, that notification did not touch any licensee with self consumption less than 50% . 3. However, while issuing Ext.P4 tariff WPC4963/2008 -:3:- order, the Regulatory Commission acted in a manner detrimental to the interest of the petitioner. The net effect of Ext.P4 is that the end consumers, who obtain supply through the petitioner as a licensee, would be paying much more than what they were paying even on the date of Ext.P6 notification. The issuance of a notification preceding the tariff order is intended to obtain suggestions and objections from the public, including from any distributing licensee, who may be getting power from the generating licensee, the KSEB in this case. Without that being done, it is wholly impermissible to have a tariff order touching the tariff rates as applicable to any licensee or consumer. The provision in Section 64(3)(a) of the Act, to accept the application of a generating company or licensee with such modifications or such conditions as may be specified in the tariff order, only authorises such modifications or conditions which do not enlarge the sweep or scope of Ext.P6 WPC4963/2008 -:4:- which is the parent notification on the basis of which a tariff order determination would take place. Any other view of interpreting Section 64 (3)(a) would negate the opportunity of the public to make suggestions and objections to the application for determination of tariff under Section 62 of the Act. 4. Whatever be the exercise undertaken after Ext.P4, the fact remains that the decision contained in Ext.P4, in so far as it affects the petitioner, is beyond the purview of the terms of Ext.P6 notification. On this short ground, the impugned Ext.P4 has to go. 5. Even if the terms of Ext.P4 are to be made as part of the tariff order to ultimately generate from Ext.P6 notification, there has to be an amended notification published incorporating such terms which do not find a place in Ext.P6 so that WPC4963/2008 -:5:- the public have the effective opportunity to make suggestions and objections as provided in Section 64(3) of the Act. The petitioner, as a licensee, would also be entitled to object to that. 6. Without prejudice to the right of the Regulatory Commission or KSEB to do so, Ext.P4, in so far as it affects the petitioner as a licensee, in exercise of what is stated in Ext.P6, is quashed leaving the parties with liberty to proceed further, having regard to what is stated in this judgment. As a consequence, Exts.P15 and P16 would stand quashed without prejudice to what is stated above. Writ petition is disposed of in the above terms. Thottathil B.Radhakrishnan, sl. Judge.