Disposed

M/S. Indsil Hydro Power and Manganese Limited v. Kerala State Electricity Board Limited

Kerala HC20 Dec 2022WP(C)/38483/2022

Case brief

AI extract

What is this about?

Petitioner sought reduction in contract demand under Kerala Electricity Supply Code, 2014. Respondents initially refused due to pending arrears. Court entertained deemed approval argument. Respondents undertook to process application per Code. Petition disposed off with undertaking to comply.

What did the court decide?

Writ petition disposed off based on respondents' undertaking to process application within one week considering Regulatory 100(10). Full stay of Ext.P5 to be lifted only if deemed approval found unlaw

M/S. Indsil Hydro Power and Manganese Limited Vs… — Service and Employment | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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TUESDAY, THE 20TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944
WP(C) NO. 38483 OF 2022

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PETITIONER:

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M/S. INDSIL HYDRO POWER AND MANGANESE LIMITED,
INDSIL HOUSE, T.V. SAMY ROAD (WEST), R.S. PURAM,
COIMBATORE, HAVING ITS FACTORY AT PALLATHERI, PALAKKAD,
REPRESENTED BY ITS FINANCIAL ADVISOR - MR. V.NATARAJAN.

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BY ADVS.
V.ABRAHAM MARKOS
ABRAHAM JOSEPH MARKOS
ISAAC THOMAS
P.G.CHANDAPILLAI ABRAHAM
ALEXANDER JOSEPH MARKOS
SHARAD JOSEPH KODANTHARA
JOHN VITHAYATHIL

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RESPONDENTS:

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1 KERALA STATE ELECTRICITY BOARD LIMITED REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004.

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2 THE DEPUTY CHIEF ENGINEEER (TRANSMISSION), KERALA STATE ELECTRICITY BOARD LTD., KANJIKODE, PALAKKAD - 678 621.

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3 THE CHIEF ENGINEER(TRANSMISSION NORTH), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, GANDHI ROAD, KOZHIKODE - 673 011.

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4THE ASSISTANT EXECUTIVE ENGINEER
SUBSTATION SUB DIVISION,
KERALA STATE ELECTRICITY BOARD LTD.,
KANJIKODE, PALAKKAD -678 621.

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BY ADV.

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B.PREMOD, SC, KSEB

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 38483 OF 2022 -2-

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JUDGMENT

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Petitioner has approached this Court with the

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following prayers:

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“call for the records relating to Exhibit P5 and quash the same by issue of a writ of certiorari or such other appropriate writ, direction or order;

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(ii)declare that the request made by the Petitioner for reduction in contract demand vide Exhibit P2 stands sanctioned under provisions of the Kerala Electricity Supply Code, 2014 read with Exhibit P4;

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(iii) direct the Respondents to forthwith and in accordance with the Kerala Electricity Supply Code 2014 to revise and raise all bills to the Petitioner strictly in accordance with the revised contract demand sanctioned pursuant to Exhibit P2 Application;

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(iv) stay the operation, implementation and all further proceedings pursuant to Exhibit P5;

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(v)Pass such other orders as are deemed just and necessary in the facts and circumstances of the case”

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Considering the arguments prima facie on 29.11.2022 passed the following detailed order:

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WP(C) NO. 38483 OF 2022 -3-

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“ The petitioner inter alia alleges that by Extra High Tension Agreement of 1997 executed between the petitioner/Company and the first respondent/Kerala State Electricity Board, the maximum demand fixed for the petitioner was 14 MVA equivallent to 14000 KVA to carry out its activities on ferro alloys. However, owing to the poor market conditions, on 30.6.2022, the petitioner has submitted Ext.P2 application for reduction of the contract demand to 10.5 MVA (10500 KVA) by invoking the provisions of Regulation 100 of the Kerala Electricity Supply Code, 2014.

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The said application was responded to by the KSEB and the petitioner replied for the same as per Ext.P3 on 3.7.2022. The Deputy Chief Engineer, Transmission Circle, Kanjikkode, Palakkad vide Ext.P4 communication dated 30.8.2022 recommended the case of the petitioner for reducing the contract demand to the Chief Engineer, Transmission North, Kozhikkode with copy to the Executive Engineer, Transmission Division, Palakkad. However, the petitioner has been served with Ext.P5 communication dated 15.9.2022 by the very same Deputy Chief Engineer, Transmission Circle, Kanjikode, Palakkad by intimating the decision of the Chief Engineer, Trans North, Kozhikkode that since pending arrears issue of the petitioner is under consideration of the

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WP(C) NO. 38483 OF 2022 -4-

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Government of Kerala by TRAC, the request for reduction of the contract demand cannot be considered.

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It was further contended, as per the provisions of sub- Regulation (10) of Regulation 100 of the Kerala Electricity Supply Code, 2014, there was deemed approval in the absence of any decision within a period of 15 days. Inspection is stated to have been conducted immediately after the application and before the communication dated 3.7.2022. Issue notice before admission to the respondents. Adv.B.Pramod, learned Standing Counsel, takes such notice.”

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The order contains the details and almost all the arguments on behalf of the petitioner.

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Respondents filed the counter affidavit and opposed the writ petition on the ground that the petitioner has already filed writ petitions bearing Nos.4095 of 2021 and 4387 of 2021, which are pending adjudication where the impugned notice of arrears is under stay. They will be moving an appropriate application for vacation of the stay. The request of the petitioner for reduction of the contract demand was

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WP(C) NO. 38483 OF 2022 -5-

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rejected on the ground of non clearance of the arrears subject to the approval of the Government.

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During the course of the hearing, this Court confronted the counsel for the respsondents to refer any provision in the Indian Electricity Act or the Kerala Electricity Supply Code, 2014 pointing out that for processing the application for reduction of the demand, clearance of the payment of arrears or sanction of the Government is sine qua non. Learned counsel fairly conceded that there is no such provision for seeking the consent of the Government as reflected in the communication dated 15.09.2022 Ext.P5, contents of which reads as under:

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“Vide ref. (1) cited above, the Chief Engineer, Trans North, Kozhikode has informed that the pending arrear issue of the consumer has been taken up with the Govt of Kerala by TRAC. Hence the request for contract demand reduction from this office cannot be considered till obtaining further clearance from the Goverment. This is for favour of kind information”

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WP(C) NO. 38483 OF 2022 -6-

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This Case was then passed over enabling the counsel for the respondents to obtain instructions from the competent officer.

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Learned counsel for the respondents, on instructions, informs the court that the board has, in unison, taken a decision to process the application of the petitioner for reduction of the load.

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At this Stage, Mr.Joseph Kudianthara, learned Senior counsel appearing for the petitioner submitted that since the respondent had not taken a call on the application submitted on 30.06.2022 within a period of fifteen(15) days as envisaged under Regulation 100(10) of the Kerala Electricity Supply Code, 2014, there was a deemed approval with effect from 16.07.2021. Without commenting any further, in view of the undertaking made by learned counsel for the respondents that while processing the application, will also take into consideration the provisions of Regulation 100(10) of the Kerala Electricity Supply Code, 2014, writ petition is

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WP(C) NO. 38483 OF 2022 -7-

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disposed off. Let this exercise be undertaken within a period of one week from the date of receipt of a certified copy of the judgment.

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AMIT RAWAL JUDGE

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vv

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The date of deemed approval shown in paragraph 7

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of the Judgment dated 20.12.2022 in WP(C) 38483/22 is corrected as ‘16.07.2022’ instead of ‘16.07.2021’ as per order dated 14.08.2023 in IA No.1/2023 in WP(C).

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Sd/JOINT REGISTRAR

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WP(C) NO. 38483 OF 2022 -8-

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APPENDIX OF WP(C) 38483/2022

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PETITIONER EXHIBITS

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Exhibit P1TRUE COPY OF THE EXTRA HIGH TENSION
DATED 27.11.1997 EXECUTED BETWEEN THE
3RD RESPONDENT AND THE PETITIONER.

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Exhibit P2TRUE COPY OF THE APPLICATION DATED
30.06.2022 ALONG WITH COVERING LETTER
FILED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.

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Exhibit P3TRUE COPY OF THE REPLY DATED
03.07.2022 SENT BY THE PETITIONER TO
THE 4TH RESPONDENT.

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Exhibit P4TRUE COPY OF THE LETTER DATED
30.08.2022 ISSUED BY THE 2ND
RESPONDENT TO THE 3RD RESPONDENT.

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Exhibit P5TRUE COPY OF THE LETTER DATED
15.09.2022 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER.

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RESPONDENT EXHIBITS

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Exhibit-R1A COPY OF LETTER NO. DB-3/EHT/22-
23/158 DATED 04-0702022, SENT FROM THE
4TH RESPONDENT (ASSISTANT EXECUTIVE
ENGINEER)TO THE EXECUTIVE ENGINEER
Exhibit-R2A COPY OF LETTER NO. DB-3/EHT/22-
23/190 DATED 15-07-2022, SENT FROM THE
4TH RESPONDENT (ASSISTANT EXECUTIVE
ENGINEER) TO THE EXECUTIVE ENGINEER
Exhibit-R3A COPY OF LETTER NO. SOR/RG1/CD/HTB-
1/153/2022-23 DATED 22.08.2022 BY THE
SOR TO THE 2ND RESPONDENT (DEPUTY
CHIEF ENGINEER, TRANSMISSION NORTH)

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WP(C) NO. 38483 OF 2022 -9-

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Exhibit-R4A COPY OF LETTER NO.
TCP/DB-10.4/INDSIL/2022-23/1110 DATED
30-08-2022 SENT BY THE 2ND RESPONDENT
(DEPUTY CHIEF ENGINEER, TRANSMISSION
NORTH) TO THE 3RD RESPONDENT (CHIEF
ENGINEER, TRANSMISSION NORTH)
Exhibit-R5A COPY OF LETTER NO. CE/TRN/E5/110kV
SS Vennakkara-INDSIL-CD/2022-23/974
DATED 03.09.2022 FROM THE 3RD
RESPONDENT (CHIEF ENGINEER,
TRANSMISSION NORTH) TO THE 2ND
RESPONDENT (DEPUTY CHIEF ENGINEER,
TRANSMISSION NORTH)

M/S. Indsil Hydro Power and Manganese Limited v. Kerala State Electricity Board Limited

Case brief

What is this about?

What did the court decide?

M/S. Indsil Hydro Power and Manganese Limited v. Kerala State Electricity Board Limited

Case brief

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What did the court decide?

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