Kerala High Court
The Assistant Executive Engineer vs State Electricity Ombudsman on 27 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
MONDAY, THE 27TH DAY OF MAY 2024 / 6TH JYAISHTA, 1946
WP(C) NO. 28939 OF 2012
PETITIONERS:
1 THE ASSISTANT EXECUTIVE ENGINEER
THE KERALA STATE ELECTRICITY BOARD, ELECTRICAL
SUB DIVISION, THAMARASSERY, KOZHIKODE DISTRICT
2 THE ASSISTANT ENGINEER
ELECTRICAL SECTION, THE KERALA STATE ELECTRICITY
BOARD, PUDUPPADY.
BY ADVS.
SRI.T.R.RAJAN,SC,K.S.E.B.
SRI.ARUNKUMAR A., SC, KSEB
RESPONDENTS:
1 STATE ELECTRICITY OMBUDSMAN
PALLIKAVIL BUILDING, MAMNGALAM ANCHUMANA TEMPLE
ROAD, EDAPPALLY, KOCHI 682024.
2 CONSUMER GRIEVANCE REDRESSAL FORUM, VYDHUTHI
BHAVANAM, KSEB, GANDHI ROAD, KOZHIKODE
REPRESENTED BY ITS CHAIRPERSON, KOZHIKODE-32.
3 K.C. JOHN,
MANAGING PARTNER, PALAZHI BIO DIARY FARMS,
KAKKADU P.O., PUTHUPPADI, KOZHIKODE. PIN 673 586
SRI.A ARUNKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
W.P.(C) No.28939 of 2012
HARISANKAR V. MENON, J.
-------------------------------
W.P.(C) No.28939 of 2012
-------------------------------
Dated this the 27th day of May, 2024
JUDGMENT
This writ petition is filed by the Assistant Executive Engineer,
KSEB (Electrical) Sub Division, Thamarassery, Kozhikode District
and the Assistant Engineer, Electrical Section, Puduppady,
challenging the order dated 03.08.2012, issued by the 1 st
respondent herein.
2. The 3rd respondent was a consumer of electricity with
the Electrical Section, Puduppady. The connection was obtained
with respect to a milk chilling and packing plant. He was paying the
duty under LT IV Tariff. According to the petitioners, the payment
ought to have been under LT VIIA Tariff and therefore an additional
bill at Ext.P2 was issued to the 3rd respondent herein.
3. The 3rd respondent challenged the said additional bill
before the 2nd respondent. The 2nd respondent, by Ext.P5 order
dated 31.07.2010 came to the finding that, in view of the load test
conducted in the unit, the total chilling load is approximately 8HP,
which is about 25% of the total connected load, on account of which
the additional bill cannot be found fault with. The said finding of the
2nd respondent is again challenged by the 3rd respondent before the
1st respondent herein. The 1st respondent by its order dated
03.08.2012, has allowed the appeal with the following findings:-
"6. Moreover, the respondent has done Tests on the
Motors of the Chilling Plant so as to determine the correct
chilling load as per the direction of CGRF. The respondent has
also analysed the test results, to arrive at the true load of the
consumer. The test was found to be done systematically and is
found technically correct. But the tests undertaken by the
respondent, was found to be done with out issuing notice to the
consumer or convincing or witnessing the Test report made
thereof. The objection of the appellant that, the above action of
the respondent violates the principle of natural justice and
therefore lost his chance to defend the Case before the CGRF,
is found reasonable.
For the above stated reasons, the action taken by the
respondent, consequent to the AG Party's Audit note, on the
appellant's Palazhy Dairy Farm, Consumer No 8312, in
changing the tariff from LT IV-industrial to LT VIIA- commercial,
with retrospective effect from 1.12.2007, is found to be not in
order and hence decided as not maintainable. Therefore the
short assessment bill dated 15.12.2009 for Rs 2,12,915/-, is to
be set aside. The consumer shall continue to be placed under
LT-IV Industrial tariff, after 1.12.2007 as before, i.e. all along the
disputed period. The excess electricity charges collected by
KSEB from the consumer, under wrong tariff fixation (LT VII A)
in the regular monthly bills since 12/07, may be refunded, with
applicable interest as per rules, with in 60 days of this order."
Finding thus, the additional bill at Ext.P2 was set aside by the 1st
respondent.
4. It is the above order that is being challenged in this writ
petition. Though notice was issued to the 3rd respondent- consumer,
there is no appearance on his behalf, even after the notice was
served on him as early as on 02.01.2013.
5. Heard Sri.A.Arunkumar, learned Standing Counsel for
the petitioners.
6. The 2nd petitioner has issued Ext.P2 additional bill
against the 3rd respondent with reference to the milk chilling and
packing plant, which was run by the 3rd respondent. As noticed
earlier, the 3rd respondent had paid the duty under LT IV Tariff, when
the Board took the stand that it ought to have been under LT VII A
Tariff. Such a stand was taken on the basis of Note (e) to LT IV, which
read as under:
"(e) The diary farms/milk chilling plant with or without
chilling/freezing cold storage activity shall be charged under
industrial category provided the chilling/freezing/cold storage
load is limited to 20% of the total connected load If it exceeds
20%, LT-VII (A) tariff shall be applicable."
Thus, under the above note, in certain situations, the billing ought to
be under LT VII A tariff. The situation under which the billing has to
be shifted to LT VII A tariff is when the load is in excess of 20% of
the connected load. Here a reference to Ext.P4 report dated
04.05.2010 of the 1st petitioner is useful. In Ext.P4, it is seen that the
total connected load of the chilling unit was 8HP whereas the total
connected load of the entire unit was 32HP. In other words, it was in
excess of 25% of the connected load. If that be the case, the
petitioners were justified in issuing Ext.P2 additional bill to the 3 rd
respondent herein.
7. The learned counsel also referred to Ext.P10 circular
dated 26.07.2010 to contend that the note referred above has been
subsequently deleted with prospective operation with effect from
21.06.2010. He also relied on the judgment of a Division Bench of
this Court in Writ Appeal No.2307 of 2016 dated 05.12.2016,
wherein an almost identical issue was considered. This Court has
come to the following findings in the above judgment.
"2. The short question that is raised is whether the
appellant is liable to be charged under LT IV tariff or under LT
VII A tariff, for the energy consumed for its Milk Processing
Plant at Adimaly. In the Tariff Order of 2007, while providing
LT IV tariff to Milk Processing Plants, it was also ordered that
the dairy farms/milk chilling plant with or without
chilling/freezing/cold storage activity shall be charged under
industrial category provided the chilling/ freezing or cold
storage load is limited to 20% of the total connected load and
that if it exceeded 20%, LT VII A tariff shall be applicable.
Subsequently, the Electricity Regulatory Commission passed
Ext.P2 order, deleting the aforesaid clause requiring the
consumer to limit its consumption to 20% to avail of supply at
LT IV tariff by its order dated 21.06.2010. However, in its
order, the Regulatory Commission has also made it clear that
the change shall be effective from the date of its order.
3. Insofar as the appellant is concerned, the appellant
has a milk processing plant where chilling is also a part of the
process. The fact that during the period 2007-10, for chilling
purposes, it has consumed more than 20% of its connected
load is not disputed by the appellant. It was on that basis,
Ext.P1 bill was issued under LT VII A tariff, demanding
₹17,55,067/- from the appellant. This bill was confirmed by
the Consumer Grievance Redressal Forum and the Electricity
Ombudsman as per Exts.P3 and P4 orders. It was these
orders which were challenged in the writ petition.
4. Insofar as the order passed by the Commission that
is relied on by the appellant is concerned, though it is true
that the restrictive conditions contained in the tariff order was
ordered to be deleted by the Commission, the appellant is
ineligible to avail the benefit thereof for the reason that the
period covered by Ext.P1 bill precedes 21.06.2010, when
Ext.P2 order was issued by the Commission. Similarly
Annexures-A1 to A2, that is now relied on by the learned
counsel for the appellant, are concerned, those orders also
do not deal with a low tension consumer like the appellant
and therefore, it cannot be taken advantage of. In such
circumstances, the learned single Judge cannot be faulted
for upholding Exts.P1, P3 and Ext.P4 and dismissing the writ
petition."
In the light of the above judgment relied on by the learned counsel
for the petitioners, the order impugned in this writ petition -Ext.P8,
cannot be sustained.
Therefore, this writ petition is allowed by setting aside Ext.P8
order issued by the 1st respondent herein.
Sd/-
HARISANKAR V. MENON, JUDGE
Skk//01/04.06.2024
APPENDIX OF W.P.(C)No.28939 OF 2012
PETITIONER'S ANNEXURES:
EXHIBIT P1 : TRUE COPY OF THE NOTE DATED 2.11.2009 OF THE
AG'S AUDIT PARTY
EXHIBIT P2 : TRUE COPY OF THE SHORT ASSESSMENT BILL DATED
15.12.2009 ISSUED BY THE 2ND PETITIONER
EXHIBIT P3 : TRUE COPY OF THE COMPLAINT NO.69/2009 FILED BY
THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT
EXHIBIT P4 : TRUE COPY OF THE REPORT DATED 4.5.2010 OF THE
FIRST PETITIONER
EXHIBIT P4(A) : TRUE COPY OF THE SITE MAHAZER DATED 24.8.2012
EXHIBIT P5 : TRUE COPY OF ORDER DATED 31.7.2010 PASSED BY THE
2ND RESPONDENT
EXHIBIT P6 : TRUE COPY OF THE APPEAL PETITION NO.P./162/2010
FILED BY THE 3RD RESPONDENT BEFORE THE 1ST
RESPONDENT
EXHIBIT P7 : TRUE COPY OF THE STATEMENT SUBMITTED BY THE 1ST
PETITIONER IN APPEAL PETITION NO.P./162/2010
EXHIBIT P8 : TRUE COPY OF ORDER DATED 3.8.2012 PASSED BY THE
1ST RESPONDENT IN APPEAL PETITION NO.P/162/2010
EXHIBIT P9 : TRUE COPY OF ORDER DATED 21.6.2010 OF THE KERALA
STATE ELECTRICITY REGULATORY COMMISSION
EXHIBIT P10 : TRUE COPY OF CIRCULAR DATED 26.7.2010 ISSUED BY
THE KERALA STATE ELECTRICITY BOARD
EXHIBIT P11 : TRUE COPY OF THE LICENCE DATED 22.12.2006 ISSUED
BY THE PUTHUPPADI GRAMA PANCHAYATH TO THE 3RD
RESPONDENT
