The High Court of Kerala dismissed a writ petition challenging the denial of concessional electricity tariff rates. The petitioner, claiming to have started production before the 1996 deadline using a diesel generator, was held not entitled as there was no evidence of actual energy consumption during the qualifying period.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN
MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931
OP.No. 2773 of 2003(E)
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PETITIONER(S):
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P.P.GEORGE AND SONS, N.H.47, ANGAMALY, REPRESENTED BY ITS MANAGING DIRECTOR, P.P.GEORGE.
BY ADV. MR.T.M.ABDUL LATHEEF
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, ELECTRICITY DEPARTMENT, THIRUVANANTHAPURAM
2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, THIRUVANANTHAPURAM
3. DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, THIRUVANANTHAPURAM.
4. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, ANGAMALY.
R2 TO R4 BY MR.C.K.KARUNAKARAN, SC FOR KSEB, MR.C.C.THOMAS, SC, K.S.E.B, MR.P.SANTHALINGAM, SC, KSEB.
THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/02/2009,THE COURT ON 06/04/2009 DELIVERED THE FOLLOWING:
Kss
ORDER ON C.M.P.NO.4925/2003 IN O.P.NO.2773/2003 E
DISMISSED
6/04/2009
SD/- K.SURENDRA MOHAN, JUDGE
APPENDIX
PETITIONER'S EXHIBITS:
..2.....
O.P.NO.2773/2003 E
RESPONDENT'S EXHIBITS: N I L
/TRUE COPY/
P.S.TO JUDGE
Kss
K. SURENDRA MOHAN, J
O.P. NO: 2773 OF 2003
Dated this the 6th April, 2009.
JUDGMENT
As per G.O(MS)4/92/PD dated 6.2.1992 the Government of Kerala announced a concessional power tariff and electricity duty to industries, as a measure of incentive. The concessional tariff was applicable only to units that started production between 1.1.1992 and 31.12.1996. Though the petitioner did not start commercial production before 31.12.1996, he claims the benefit of the concessional tariff alleging that he had started commercial production in June 1996, using a diesel generator set installed by him. On the above basis, he challenges the denial of the concessional rate of electricity tariff to him.
O.P.2773/2003
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24.11.1995, which is Ext.P5. The petitioner alleges that the entire work for giving electric connection to the petitioner was over in 1996 itself but, supply was delayed without any justification and finally, he was granted electric connection only on 1.1.1997. But, according to him, the petitioner started commercial production before the said date using a generator set installed by him, having a capacity of 62.5 KVA. Since the petitioner was not given electric connection before 31.12.1996, he submitted Exts.P8 and P9 representations and also filed O.P.19444/2001 praying for the issue of appropriate directions from this Court, commanding the respondents to collect only the pre 1992 tariff rates from the petitioner. During the pendency of the said Original Petition a bill for Rs.75,095/- was issued to the petitioner which was also challenged by him before this Court in a Miscellaneous Petition filed in the writ petition referred to above. This Court had granted an order of interim stay conditional on payment of an amount of Rs.35,000/-. Subsequently the original petition was disposed of as per Ext.P11 judgment directing the Deputy Chief Engineer, KSEB to consider and dispose of the representations of the petitioner within a period of three months of the date thereof.
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compliance with the directions of this Court and orders were passed by the Deputy Chief Engineer, KSEB which is Ext.P13. As per Ext.P13 it has been found that the petitioner is not entitled to the concessional tariff rates claimed by him. He has also been found liable to pay the amount demanded as electricity charges from him. The petitioner has filed this Original Petition challenging Ext.P13 order and claiming that he is entitled to the benefit of the concessional pre 1992 tariff rates announced by the Government of Kerala as per G.O(MS) 4/92 dated 9.2.1992. Though this petition was filed in the year 2003 no counter affidavit has been filed on behalf of the respondents. It is seen from the proceedings that though sufficient opportunity was granted to the respondents, they have not chosen to file a counter affidavit till date. No prayer for time to file counter affidavit was also made by the counsel for the respondents. Therefore, I have heard Shri. T.M.Abdul Latiff, counsel for the petitioner and the standing counsel for the KSEBoard.
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executed a minimum guarantee agreement on 29.7.1995. The Electrical Inspector, Ernakulam permitted energisation of his generator and the electrical installation on 27.6.1996 and the unit started commercial production immediately. The petitioner did everything on his part and started commercial production using the generator set before 1.1.1997. According to him the petitioner had invested money and established the unit on the expectation that electrical energy would be supplied to him at the pre 1992 tariff rates. He contends that the concession made available to industrial units should not be denied to him for the reason that the petitioner had done everything that was to be done by him before 31.12.1996 and it was not due to any fault of his that the energisation of electrical supply to his unit was delayed beyond the cut off date of 31.12.1996.
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petitioner even when he started preparations for establishing his unit. Since the petitioner's unit was not energised before the cut off date, he was not entitled to the concession. According to the counsel, in Ext.P13, the impugned order, all the contentions of the petitioner have been considered. The counsel for the respondents contended that, it was not due to any fault on the part of the KSE Board that the unit was not given electric connection before 31.12.1996. It is further contended that the petitioner had not submitted any application for availing the concessional tariff rate at any time. He has made his claim for the first time only in O.P.19444/2001 filed by him. Therefore, it is pointed out that the original petition is liable to be dismissed.
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the part of the authorities in giving connection to the petitioner's unit. There is nothing on record to show that the above statements in Ext.P13 are false. The above question being a pure question of fact, the finding of the Deputy Chief Engineer in Ext.P13 on this point has to be accepted. The petitioner has also not disputed the above statements contained in Ext.P13, in the above Original Petition. In the absence of any evidence or material to show that the respondents were at fault in delaying grant of electric connection to the petitioner's unit, the above finding in Ext.P13 is only to be upheld.
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concession cannot be made available to units which do not commence consumption of energy during the relevant period. Admittedly the petitioner's unit has not consumed any electrical energy before 31.12.1996. According to him, he has commenced commercial production using a diesel generator. There is absolutely no evidence to show that he had started commercial production before 31.12.1996. Though the petitioner has produced Ext.P17 certificate of registration dated 10.7.1996 issued under the Kerala General Sales Tax Act, the same does not show that he has started commercial production. Exts.P18 and P19 are also not acceptable as evidence of commencement of commercial production. It therefore follows that the petitioner has not been able to produce any evidence of commencement of commercial production before 31.3.1996.
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does not have the capacity to meet the power requirements of the petitioner. Even if it is assumed that the unit had started production using a generator set, the same can only be presumed to have been in anticipation of getting a regular electric connection. Therefore, even if it is assumed that the petitioner had started production using a diesel generator set, the same would not entitle him to the benefit of the concessional pre 1992 tariff rates announced by the Government of Kerala.
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commercial production before the appointed date was a question of fact which was not liable to be interfered with.
K. SURENDRA MOHAN Judge
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O.P.2773/2003 10
K. SURENDRA MOHAN, J.
O.P.NO: 2773 OF 2003-E
JUDGMENT
Dated: 6th April, 2009.
2 issues framed by the court
Whether the petitioner is entitled to concessional pre-1992 electricity tariffs having started commercial production before the cut-off date of 31.12.1996 using a diesel generator set.
Whether the finding of the Deputy Chief Engineer regarding the dates of installation and energisation calls for interference in this original petition.
Colour shows how this judgement treated each authority
Southern Ispat Ltd. v. State of Kerala and othersReferred¶87
Southern Ispat Ltd. v. State of Kerala and others {(2004) 4 SCC 68} · Who else cites this
P.P.GEORGE AND SONS
STATE OF KERALA
KERALA STATE ELECTRICITY BOARD
DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD
ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, ANGAMALY
K SURENDRA MOHAN
As recorded by the court registry
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