All India Youth Federation Kerala ... vs Kerala State Electricity ...
2021 Latest Caselaw 1030 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                  &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942

                      WP(C).No.18704 OF 2012(S)


PETITIONERS:

      1        ALL INDIA YOUTH FEDERATION KERALA STATE COMMITTEE
               M.N.SMARAKAM, THYCAUD, THIRUVANANTHAPURAM,
               REPRESENTED BY ITS SECRETARY, K.RAJAN, AGED 38 YEARS.

      2        P.K.RAJU
               AGED 48 YEARS
               S/O.PAZHANIYAPPAN, LENIN BHAVAN, T.C.1/1536(4),
               MEDICAL COLLEGE, THIRUVANANTHAPURAM.

               BY ADV. SRI.V.M.KRISHNAKUMAR

RESPONDENTS:

      1        KERALA STATE ELECTRICITY REGULATORY COMMISSION
               THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN
               695004.

      2        STATE OF KERALA REPRESENTED BY SECRETARY
               PUBLIC WORKS DEPARTMENT, SECRETARIAT,
               THIRUVANANTHAPURAM, PIN 695001.

      3        SECRETARY
               DEPARTMENT OF TOURISM, STATE OF KERALA, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001.

      4        SECRETARY
               DEPARTMENT OF GENERAL ADMISSION, STATE OF KERALA,
               GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
               PIN 695001.

      5        KERALA STATE ELECTRICITY BOARD
               VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM,
               PIN 695004, REPRESENTED BY ITS SECRETARY.

      6        SECRETARY
               KERALA LEGISLATIVE ASSEMBLY,
               THIRUVANANTHAPURAM, PIN 695001.
 WP(C).No.18704 OF 2012(S)         2




      7      STATE OF KERALA
             REP.BY CHIEF SECRETARY, GOVERNMENT OF KERALA,
             SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001.

             R1 BY SRI.S.SUJIN, STANDING COUNSEL, ELECTRICITY
             REGULATORY COMMISSION
             R2 TO R4 AND R6 & R7 BY SRI.ARAVIND KUMAR BABU
             SENIOR GOVERNMENT PLEADER
             R5 BY ADV. SRI.P.A.AHAMED, STANDING COUNSEL, KERALA
             STATE ELECTRICITY BOARD LIMITED

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.18704 OF 2012(S)                      3




                                     JUDGMENT

S.MANIKUMAR,CJ

All India Youth Federation Kerala State Committee, Thiruvananthapuram,

represented by its Secretary and one Mr.P.K.Raj, have jointly filed this Public

Interest Litigation seeking the following reliefs:

(I) direct respondents 2, 3, 4 and 6 to ensure that the entire arrears of electricity charges, due from the State Government and public sector undertakings of State Government as well as official residences of ministers and Secretariat of Legislative assembly are paid to be the Electricity Board, pending disposal of the above writ petition.

(II) direct respondents 1 and 5 not to collect the enhanced power tariff as per Ext.P1 from 1.7.2012 onwards retrospectively but only from the date of Ext.P1 order until the disposal of the above writ petition.

(III) directing the 1st respondent not to continue the enhanced rate of power tariff as per Ext.P1, after 31.03.2013 without the 5 th respondent collecting the entire arrears of power tariff as mentioned in Ext.P5 and as directed in Ext.P4 pending disposal of the above writ petition.

Short facts leading to the writ petition are as follows:

2. This writ petition is filed in public interest to bring to the notice of this

Court the capricious and arbitrary action of the respondents in not collecting

the amounts due as electricity charge arrears from the consumers including

public sector undertakings on one hand and on the other hand increasing the

power tariff to all the electricity consumers, as per order dated 25.07.2012 of

the first respondent commission. The present hike of electricity tariff made by

the commission is about 30% rise and the present tariff is even higher than

the National Capital Delhi, which is one of the costliest State as regards

electricity charges are concerned.

3. While passing Exhibit P1 tariff revision order, neither the Commission

nor the Electricity Board had considered the scope of recovering hundreds of

crores of rupees due to the Electricity Board from the consumers including the

State Government, Public Sector undertakings as well as industrial and

commercial establishments, as arrears of power charges. No positive action

has been taken by the Board to collect the huge arrears of power tariffs and

that the Kerala State Electricity Regulatory Commission, 1 st respondent,

without considering this aspect has raised the power tariff, which results in

irreparable injury and loss to the common man. If the entire arrears of

amount is collected, there is virtually no need for any price hike. This has not

been considered by the Electricity Board or the Commission Hence this public

interest writ petition filed before this Court.

4. Respondent No.1 has filed a detailed counter affidavit refuting the

allegations raised by the petitioner and it is submitted that the grounds raised

in support of the writ petition are unfounded and untenable. It is further

submitted that the averments in the grounds raised in support of the writ

petition are merely a reproduction of the averments contained in paragraghs 2

to 6 of the writ petition and hence denied. The averment in ground 'a' that 1 st

respondent is turning a blind eye to the huge arrears of electricity charges is

absolutely false and hence denied.

5. It is submitted that the Commission had been concerned about the

arrears of current charges due from various sources to the 5 th respondent and

issued Exhibit P4 order on the matter. The matter was discussed in the State

Advisory Committee meeting held on 15-02-2012 for discussing the ARR &ERC

Petition of the 5th respondent. The minutes of the 24 th State Advisory

Committee Meeting held on 15.02.2012 recorded that 'On realisation of

arrears due to the Board, the Chairman (of KSEB) explained that major

portion of arrears are those that relate to pre- 92 tariff, pending on account of

court cases and those relating to Government Departments. The Board's

collection efficiency is 99 % excluding that from Government agencies'.

Collection efficiency to the level of 99% means that KSEB is regularly

collecting the current demand raised to the extent of 99%, which is

commendable when compared to any public sector utility.

6. It is submitted that the Commission cannot direct the power supply

to drinking water pumping by KWA, Government Hospitals, Police

establishments etc., to be disconnected as suggested by the petitioner

invoking the Electricity Supply Code for obvious reasons. It is also submitted

that the 5th respondent was not successful in collecting the arrears of

electricity charges from some HT &EHT consumers also for various reasons

including litigation by consumers resulting in stay orders from Courts. It is

reiterated that the amount of arrears to be collected by the 5 th respondent

has no bearing on the revenue gap and hence on the decision to increase the

tariff as the accounting of the 5th respondent is on accrual basis.

7. The averment in ground 'e' of the writ petition that the Commission

has no powers to revise and enhance the tariff with retrospective effect is

absolutely false and hence denied. It is submitted that Section 64(6) of the

Electricity Act, 2003 enables the Commission to revise tariff retrospectively

also. The said powers of the Commission has also been upheld by the Hon'ble

Apex court as well as by the Appellate Tribunal for Electricity. It is submitted

that the 5th respondent had submitted the Tariff Petition only by the end of

March 2012 and the process could not be completed in time to make the

revision effective from 1st April 2012. At the same time the Revenue Gap of

the utility for Financial year 2012-2013 could not be allowed to be kept

unbridged beyond limits. Hence the Commission was constrained to make the

Order dated 27th July 2012 effective from 1st of the Month. The general

public was well aware of the impending tariff revision due to the media

publicity and discussions on the matter during the months. Therefore,

according to the 1st respondent, the instant writ petition is devoid of merits

and is liable to be dismissed with cost.

8. We have heard Mr.V.M.Krishnakumar, learned counsel for petitioner,

Mr.S.Sujin, learned counsel appeared for respondent No.1, Mr.P.A.Ahammed,

learned counsel appeared for respondent No.5, Mr.Aravind Kumar Babu,

learned Senior Government Pleader appeared for respondents 2 to 4 and 6 & 7

and perused the pleadings and materials on record.

The writ petition is of the year 2012. We are satisfied with the reasons

assigned in the counter affidavit. At this juncture, nothing survives in the

instant writ petition for further adjudication, accordingly the writ petition is

dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                   SHAJI P.CHALY

smv                                                      JUDGE





                                     APPENDIX

PETITIONERS' EXHIBITS

EXHIBIT P1: TRUE COPY OF THE RELEVANT PAGES OF THE ORDER IN O.P.NO.23/2012 OF THE 1ST RESPONDENT DATED 25.7.2012.

EXHIBIT P2: TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED ON 27.7.2012 IN THE HINDU DAILY.

EXHIBIT P3: TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN TIMES OF INDIA ON 26.7.2012.

EXHIBIT P4: TRUE COPY OF THE ORDER IN O.P.NO.8/2008 OF THE 1ST RESPONDENT COMMISSION.

EXHIBIT P1: TRUE COPY OF THE LETTER DATED 27.07.2012 OF THE KERALA STATE ELECTRICITY BOARD ISSUED TO THE 2ND PETITIONER WITH ENGLISH TRANSLATION.

RESPONDENTS' EXHIBITS'

EXHIBIT.R1(a): TRUE COPY OF ORDER DATED28.04.2012 OF THE COMMISSION ON ARR & ERC PETITION FILED BY THE 5TH RESPONDENT.

EXHIBIT.R7(a): TRUE COPY OF CIRCULAR NO.8358/C2/2008/PD DATED 29/9/2010.

EXHIBIT.R7(b): TRUE COPY OF CIRCULAR NO.8358/C2/2008/PD DATED 7.2.2012.

EXHIBIT.R7(c): A TRUE COPY OF D.O. LETTER NO.8358/C2/2008/PD DATED 7.2.2012

EXHIBIT.R7(d): TRUE COPY OF G.O.(Ms) NO.43/2011/PD DATED 03.11.2011.

EXHIBIT.R7(e): TRUE COPY OF MINUTES OF THE MEETING CONVENED BY THE CHIEF SECRETARY.

EXHIBIT.R7(f): TRUE COPY OF G.O.(Rt)NO.110/12/PD DATED 13.06.2012

EXHIBIT.R7(g): TRUE COPY OF GOVERNMENT ORDER NO.18/12/PD DATED 06.08.2012.