Dejo Kappen vs State Of Kerala
2021 Latest Caselaw 1751 Ker

WP(C).No.13569 OF 2017(S)           -1-

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                      &

              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

     MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                          WP(C).No.13569 OF 2017(S)


PETITIONER/S:

                DEJO KAPPEN
                KAPPIL HOUSE, MEENACHIL P.O., PALA, PALA SUB
                DIVISION, MEENACHIL CIRCLE, KOTTAYAM-686577.
                CONSUMER NO. 1156262011663.

                BY ADVS.
                SRI.GEORGE POONTHOTTAM (SR.)
                SMT.NISHA GEORGE

RESPONDENT/S:

       1        STATE OF KERALA
                REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT
                OF POWER, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM-695001.

       2        KERALA STATE ELECTRICITY BOARD LIMITED
                REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR,
                VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695001.

       3        KERALA STATE ELECTRICITY REGULATORY
                COMMISSION, REPRESENTED BY ITS SECRETARY, KFC
                BHAVANAM, VELLAYAMBALAM, THIRUVANANTHAPURAM-695010.

       4        UNION OF INDIA
                REPRESENTED BY SECRETARY, MINISTRY OF POWER AND
                ENERGY, NEW DELHI-110001

                R1   BY   SRI.K.V.SOHAN, STATE ATTORNEY
                R4   BY   ADV. SMT.MINI GOPINATH CGC
                R3   BY   ADV. SRI.V.J.MATHEW SR.
                R2   BY   ADV. SRI.RAJU JOSEPH SR.
                R2   BY   SRI.GEORGEKUTTY MATHEW, SC, KSEB
                R3   BY   SRI.VIPIN P.VARGHESE, SC, KSERC
                R3   BY   ADV. S.SUJIN
 WP(C).No.13569 OF 2017(S)    -2-



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.13569 OF 2017(S)             -3-




                             JUDGMENT

Dated this the 18th day of January, 2021

S. Manikumar, C. J.

Instant writ petition has been filed seeking the following reliefs:-

"i. Issue a writ declaring that the conferment of suo-motu power issue tariff orders by the 3rd respondent through regulations framed under Sec. 181 of the Electricity Act 2003 is beyond the powers conferred under Sec.61, 62 and 64 read with Sec.181 of the Electricity Act, 2003;

ii. Issue a writ declaring that in the light of Ext-P6 MOU, which binds respondents 1 and 2, there is no justification in issuing any tariff order imposing liability on the consumer for the years 2016, 2017 and 2018 financial years as evident from Annexure-B of Ext-P6;

iii. Issue a writ of certiorari calling for the records leading to the proceedings dated 01.12.2016 of the 3rd respondent (Ext- P5) proposing upward revision of electrical energy for filling up the unabridged gap as contained in schedule 6 of the said proceedings and to quash the same;

iv. Issue a writ declaring that there is no authority for the 3rd respondent in revising the tariff in respect of the unabridged gap of the years as on 31.03.2011 ending upto 31.03.2013 as the said liability bas been taken over by the State and the orders issued in that regard is illegal and unauthorised;

iv. Issue a writ declaring that the proceedings of the Commission dated 01.12.2016 is even against the stand taken by the 2nd respondent regarding the revision of tariff and therefore the proceedings taken thereafter for the revision of tariff is unjust and illegal."

2. Short facts leading to the filing of writ petition are as

follows:-

The petitioner is a consumer of electricity. The challenge before

this Court is against the suo-motu proceedings initiated by the 3 rd

respondent for revising the energy tariff and the decision arrived at

vide proceedings Ext. P5. It can be seen from paragraph 13 of Ext. P5

that the steps taken for revising the tariff is to cover up the loss as

described in table 6 of the said proceedings. According to the

petitioner, that is the liability taken over by the State as part of the

formation of the company w.e.f. 01.11.2013. It is evident from the

orders issued by the Government that the company started functioning

with zero liability from 01.11.2013. When that be so, there cannot be

tariff revision in tune with table 6 of Ext. P5. Further applications are

pending for truing up of accounts for the year 2013-14 and 2014-15.

When those applications are pending, it is the duty of the Commission

to consider the said application and decide the same in accordance

with law as permissible. However, the 3 rd respondent is proceeding

further with the proposal contained in Ext. P2 for revising the tariff,

which is opposed to law. Petitioner has contended that a perusal of

Ext. P5 will show that O&M expenses as permissible and as incurred

are doubled amount than permissible. Therefore, the consumers are

penalized because of the imprudent decisions taken regarding the

payment of salary, which is highest in the country and highest even in

the State when compared to other establishments and Government

service. Petitioner has further contended that if a tariff hike is given

effect, the domestic consumers of the State will be prejudicially

affected at a time when the hike is not sought for even by the 2 nd

respondent, as can be seen from Ext. P3.

3. The challenge is with respect to the revision of tariff for the

years 2016, 2017 and 2018. As on today, nothing survives in this writ

petition for adjudication.

Though Mr. George Poonthottam, learned Senior Counsel

appearing for the petitioner questioned the power of the Kerala State

Electricity Regulatory Commission, 3rd respondent, to issue tariff

orders, at this length of time, there is no need to answer the same.

Leaving the question open, this writ petition is dismissed as

infructuous.

Sd/-

S.MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P.CHALY JUDGE

Eb

///TRUE COPY///

P. A. TO JUDGE

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT-P1 TRUE COPY OF THE G.O(P)NO.3/2015/PD DATED 28/01/2015

EXHIBI-P2 TRUE COPY OPF THE PUBLIC NOTICE NO.

1007/F&T/SUO MOTU TRAFFIC REVISION/2016-17 DATED 22/06/2016

EXHIBIT-P3 TRUE COPY OF THE WRITTEN SUBMISSION DATED 26/07/2016 GIVEN BY THE 2ND RESPONDENT COMPANY AS AVAILABLE IN THE WEBSITE OF THE 3RD RESPONDENT COMMISSION

EXHIBIT-P4 TRUE COPY OF THE LETTER NO.

CECCN/DB/01/RIA/2007-08/1627 DATED 29/12/2016 ALONG WITH SCHEDULE AND ITS ENGLISH TRANSLATION

EXHIBIT-P5 TRUE COPY OF THE PROPOSAL NO.1007/F&T/SUO MOTU/2016-17 DATED 01/12/2016

EXHIBIT-P6 TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING

EXHIBIT-P7 TRUE COPY OF THE COVERING LETTER FORWARDED TO THE CHAIRMAN AND MEMBERS OF THE REGULATORY COMMISSION

EXHIBIT-P8 TRUE COPY OF THE COUNTED AFFIDAVIT FILED BY THE 3RD RESPONDENT IN W.P(C) 2534/2017