Milk processing unit operator challenged electricity board's demand for higher tariff due to chilling load exceeding 20%. Court held Commission's order applicable prospectively only.
Petitioner's writ petition is dismissed against higher tariff demand.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938
WP(C).No. 713 of 2012 (L)
PETITIONER :
HIGH RANGE DAIRY CO-OPERATIVE SOCIETY LTD., K-10(D), ADIMALY, IDUKKI DISTRICT, FORMERLY KNOWN AS ELLACKAL MILK CO-OPERATIVE SOCIETY REPRESENTED BY ITS GENERAL MANAGER.
BY ADV. SRI.S.RAMESH BABU
RESPONDENT(S):
1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY,
VYDHUTHI BHAVAN, PATTOM, TRIVANDRUM-695 001.
2. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD,
ELELCTRICAL SECTION, ADIMALY-685 561.
3. KERALA STATE ELECTRICITY BOARD, CONSUMER DISPUTES GRIEVANCE REDRESSAL FORUM,
CENTRAL REGION, POWER HOUSE ROAD, ERNAKULAM-682 018.
4. THE STATE ELECTRICITY OMBUDSMAN, PALLIKKAVIL BUILDING, MAMANGALAM,
ANCHUMANA TEMPLE ROAD, EDAPALLY, KOCHI-682 024.
BY SRI.P.SANTHALINGAM,SENIOR ADVOCATE SRI.S.SHARAN,SC,K.S.E.BOARD SRI.T.R.RAJAN,SC,K.S.E.B. SRI.K.M.SATHYANATHA MENON,SC,KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-07-2016, THE COURT ON 16-08-2016 DELIVERED THE FOLLOWING:
sts
WP(C).NO.713/2012
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT P1. TRUE COPY OF THE DEMAND DATED 8/6/2010 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXHIBIT P2. TRUE COPY OF THE ORDER DATED 21/6/2010 ISSUED BY THE KERALA STATE ELECTRICITY REGULATORY COMMISSION. EXHIBIT P3. TRUE COPY OF THE ORDER DATED 02/12/2010 OF THE THIRD RESPONDENT NAMELY CONSUMER GRIEVANCE REDRESSAL FORUM EXHIBIT P4. TRUE COPY OF THE ORDER DATED 14/12/2011 OF THE FOURTH RESPONDENT NAMELY OMBUDSMAN FOR ELECTRICITY. EXHIBIT P5. TRUE COPY OF THE BILL DATED 26/12/2011 ISSUED TO THE PETITIONER BY THE SECOND RESPONDENT
RESPONDENTS' EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE SITE MAHAZAR DATED 28/4/2010 PREPARED BY THE 2ND RESPONDENT WITH ENGLISH TRANSLATION
EXHIBIT R1(B) TRUE COPY OF THE RELEVANT PAGES OF THE GAZETTE NOTIFICATION DATED 27/11/2007
/TRUE COPY/
P.A.TO JUDGE
sts
**A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.713 of 2012
Dated this the 16th day of August 2016
J U D G M E N T
This writ petition is filed challenging Exts.P1, P3, P4 and P5. Ext.P1 is the demand notice issued by the Kerala State Electricity Board (hereinafter referred to as 'the Board') demanding Rs.17,55,067/- from the petitioner on the ground that there is a short assessment due to application of wrong tariff. Ext.P3 is an order dated 02/12/2010 passed by the Consumer Grievance Redressal Forum (hereinafter referred to as 'the Forum') constituted under the Kerala State Electricity (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulation, 2005, in a complaint filed by the petitioner against Ext.P1 bill by which the Forum had confirmed the demand. Petitioner preferred an appeal before the State Electricity Ombudsman which resulted in Ext.P4 order dated 14/12/2011 by which the appeal stands rejected. Pursuant to the rejection of the appeal, the Board again demanded the aforesaid amount as per
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Ext.P5 order dated 26/12/2011.
“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 is limited to 20% of the total connected load. If it exceeds 20%, LT-VIIA shall be applicable.”
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order dated 21/06/2010. It is therefore contended that, in terms of Note (e) to LT-IV tariff and also in the light of Ext.P2 order, the authorities ought to have allowed the complaint of the petitioner. It is also contended that the Ombudsman proceeds on the basis that milk processing units are covered under Note (e) whereas the petitioner is a dairy/milk processing plant and not a dairy farm/milk chilling plant, which alone is comprehended under Note (e) to LT-IV tariff.
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shall be applicable. With reference to Ext.P2 order dated 21/06/2010, the Regulatory Commission clarified that processing of milk by pasteurization, storage, packing etc. is to be considered as industry and LT IV tariff shall be applicable to them. However, units having cold storage chilling, freezing and or packing alone shall be treated as commercial and LT VII A tariff shall apply. It is further indicated that though certain provision of the tariff order has been deleted, it is prospective from 21/06/2010. Therefore, it is contended that Ext.P2 order of the Commission will not have any effect on the bill issued at Ext.P1. They therefore support the stand taken by the Forum as well as the Ombudsman.
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chilling/freezing/cold storage load exceeds 20%, LT-VII A shall be applicable. This had come into effect from 01/12/2007. Therefore, the question is whether the petitioner is a dairy farm having chilling/freezing/cold storage activity. According to the petitioner, Note (e) was intended only to apply to chilling plants and not to processing units.
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two authorities have already taken a view on factual circumstances involved in the matter, this Court shall not entertain the writ petition under Article 226 of the Constitution of India. In other words, the scope of judicial review is very limited unless it is pointed out that the findings are based on irrelevant materials and perverse.
“ 6.0 Decision of the Commission
The complete processing of Milk by pasteurization storage, packing etc is to be considered as industry and LT IV tariff shall be applicable to them. Units having cold storage chilling, freezing and or packing alone, shall be treated as Commercial and Lt VII (A) Tariff shall apply. The Clause “But dairy farms/milk chilling plant with or without chilling / freezing / cold storage activity shall be charged under industrial category
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provided the chilling / freezing / cold storage load is limited to 20% of total connected load. If it exceeds 20% LT VII A Tariff shall be applicable” shall be deleted and the order amended accordingly. The change shall be effective from date of this order only.”
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not find any error in Exts.P1, P3 and P4 demand by which short assessment bill was issued and confirmed by the statutory authorities.
The very purpose of submission of the complaint before the Commission by the Kerala State Small Industries Association was to classify milk chilling plant/milk processing unit under LT IV industrial tariff. This matter was considered in detail and final orders were passed, but making it very clear that the same shall apply only from the date of the order. In the said circumstances, I do not think that the petitioner is entitled for any relief in the present writ petition.
This writ petition is hence dismissed.
(sd/-)
(A.M.SHAFFIQUE, JUDGE)
jsr
3 issues framed by the court
Whether a milk processing unit with incidental chilling/freezing activity falls within LT IV Note (e) which imposes a 20% load limit for industrial tariff.
Whether the benefit of the Regulatory Commission's order dated 21/06/2010 regarding milk processing units applies retrospectively to short assessments issued prior to that date.
Whether the demand notice and appeal orders are illegal, arbitrary, or perverse warranting judicial interference.
Colour shows how this judgement treated each authority
Constitution of IndiaReferred¶58
Article 226 of the Constitution of India
3 provisions across 2 enactments
HIGH RANGE DAIRY CO-OPERATIVE SOCIETY LTD.
KERALA STATE ELECTRICITY BOARD
THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD
KERALA STATE ELECTRICITY BOARD, CONSUMER DISPUTES GRIEVANCE REDRESSAL FORUM
THE STATE ELECTRICITY OMBUDSMAN
A.M.SHAFFIQUE
As recorded by the court registry
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